Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

160261 November 10, 2003

ERNESTO B. FRANCISCO, JR., petitioner, NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA MANGGAGAWANG PILIPINO, INC., ITS OFFICERS AND MEMBERS, petitioner-in-intervention, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitionerin-intervention, vs. THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER JOSE G. DE VENECIA, THE SENATE, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON, REPRESENTATIVE GILBERTO C. TEODORO, JR. AND REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, respondents. JAIME N. SORIANO, respondent-in-Intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. x---------------------------------------------------------x G.R. No. 160262 November 10, 2003 SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA RAZONABAD, petitioners, ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO QUADRA, petitioners-inintervention, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitionerin-intervention, vs. THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTA-TIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. x---------------------------------------------------------x G.R. No. 160263 November 10, 2003 ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioners-

in-intervention, vs. FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT, AND JOSE G. DE VENECIA, JR., IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF REPRESENTATIVES, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. x---------------------------------------------------------x G.R. No. 160277 November 10, 2003 FRANCISCO I. CHAVEZ, petitioner, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitionerin-intervention, vs. JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF REPRESENTATIVES, FRANKLIN M. DRILON, IN HIS CAPACITY AS PRESIDENT OF THE SENATE OF THE REPUBLIC OF THE PHILIPPINES, GILBERT TEODORO, JR., FELIX WILLIAM FUENTEBELLA, JULIO LEDESMA IV, HENRY LANOT, KIM BERNARDO-LOKIN, MARCELINO LIBANAN, EMMYLOU TALIO-SANTOS, DOUGLAS CAGAS, SHERWIN GATCHALIAN, LUIS BERSAMIN, JR., NERISSA SOON-RUIZ, ERNESTO NIEVA, EDGAR ERICE, ISMAEL MATHAY, SAMUEL DANGWA, ALFREDO MARAON, JR., CECILIA CARREON-JALOSJOS, AGAPITO AQUINO, FAUSTO SEACHON, JR., GEORGILU YUMUL-HERMIDA, JOSE CARLOS LACSON, MANUEL ORTEGA, ULIRAN JUAQUIN, SORAYA JAAFAR, WILHELMINO SY-ALVARADO, CLAUDE BAUTISTA, DEL DE GUZMAN, ZENAIDA CRUZ-DUCUT, AUGUSTO BACULIO, FAUSTINO DY III, AUGUSTO SYJUCO, ROZZANO RUFINO BIAZON, LEOVIGILDO BANAAG, ERIC SINGSON, JACINTO PARAS, JOSE SOLIS, RENATO MATUBO, HERMINO TEVES, AMADO ESPINO, JR., EMILIO MACIAS, ARTHUR PINGOY, JR., FRANCIS NEPOMUCENO, CONRADO ESTRELLA III, ELIAS BULUT, JR., JURDIN ROMUALDO, JUAN PABLO BONDOC, GENEROSO TULAGAN, PERPETUO YLAGAN, MICHAEL DUAVIT, JOSEPH DURANO, JESLI LAPUS, CARLOS COJUANGCO, GIORGIDI AGGABAO, FRANCIS ESCUDERRO, RENE VELARDE, CELSO LOBREGAT, ALIPIO BADELLES, DIDAGEN DILANGALEN, ABRAHAM MITRA, JOSEPH SANTIAGO, DARLENE ANTONIO-CUSTODIO, ALETA SUAREZ, RODOLF PLAZA, JV BAUTISTA, GREGORIO IPONG, GILBERT REMULLA, ROLEX SUPLICO, CELIA LAYUS, JUAN MIGUEL ZUBIRI, BENASING MACARAMBON, JR., JOSEFINA JOSON, MARK COJUANGCO, MAURICIO DOMOGAN, RONALDO ZAMORA, ANGELO MONTILLA, ROSELLER BARINAGA, JESNAR FALCON, REYLINA NICOLAS, RODOLFO ALBANO, JOAQUIN CHIPECO, JR., AND RUY ELIAS LOPEZ, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

x---------------------------------------------------------x G.R. No. 160292 November 10, 2003 HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA. CECILIA PAPA, NAPOLEON C. REYES, ANTONIO H. ABAD, JR., ALFREDO C. LIGON, JOAN P. SERRANO AND GARY S. MALLARI, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitionerin-intervention, vs. HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P. NAZARENO, IN HIS CAPACITY AS SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES, AND THE HOUSE OF REPRESENTATIVES, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. x---------------------------------------------------------x G.R. No. 160295 November 10, 2003 SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. GONZALES, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitionerin-intervention, vs. THE HOUSE OF REPRESEN-TATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. x---------------------------------------------------------x G.R. No. 160310 November 10, 2003 LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN MATIBAG, RAMON MIQUIBAS, RODOLFO MAGSINO, EDUARDO MALASAGA, EDUARDO SARMIENTO, EDGARDO NAOE, LEONARDO GARCIA, EDGARD SMITH, EMETERIO MENDIOLA, MARIO TOREJA, GUILLERMO CASTASUS, NELSON A. LOYOLA, WILFREDO BELLO, JR., RONNIE TOQUILLO, KATE ANN VITAL, ANGELITA Q. GUZMAN, MONICO PABLES, JR., JAIME BOAQUINA, LITA A. AQUINO, MILA P. GABITO, JANETTE ARROYO, RIZALDY EMPIG, ERNA LAHUZ, HOMER CALIBAG, DR. BING ARCE, SIMEON ARCE, JR., EL DELLE ARCE, WILLIE RIVERO, DANTE DIAZ, ALBERTO BUENAVISTA, FAUSTO

BUENAVISTA, EMILY SENERIS, ANNA CLARISSA LOYOLA, SALVACION LOYOLA, RAINIER QUIROLGICO, JOSEPH LEANDRO LOYOLA, ANTONIO LIBREA, FILEMON SIBULO, MANUEL D. COMIA, JULITO U. SOON, VIRGILIO LUSTRE, AND NOEL ISORENA, MAU RESTRIVERA, MAX VILLAESTER, AND EDILBERTO GALLOR, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitionerin-intervention, vs. THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON. SPEAKER JOSE C. DE VENECIA, JR., THE SENATE, REPRESENTED BY HON. SENATE PRESIDENT FRANKLIN DRILON, HON. FELIX FUENTEBELLA, ET AL., respondents. x---------------------------------------------------------x G.R. No. 160318 November 10, 2003 PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners, vs. HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF REPRESENTATIVES, HON. SENATE PRESIDENT FRANKLIN M. DRILON, AND ALL MEMBERS, PHILIPPINE SENATE, respondents. x---------------------------------------------------------x G.R. No. 160342 November 10, 2003 ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER OF THE INTEGRATED BAR OF THE PHILIPPINES, MANILA III, AND ENGR. MAXIMO N. MENEZ JR., IN HIS CAPACITY AS A TAXPAYER AND MEMBER OF THE ENGINEERING PROFESSION, petitioners, vs. THE HOUSE OF REPRESENTA-TIVES REPRESENTED BY THE 83 HONORABLE MEMBERS OF THE HOUSE LED BY HON. REPRESENTATIVE WILLIAM FUENTEBELLA, respondents. x---------------------------------------------------------x G.R. No. 160343 November 10, 2003 INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. THE HOUSE OF REPRESENTA-TIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents.

x---------------------------------------------------------x G.R. No. 160360 November 10, 2003 CLARO B. FLORES, petitioner, vs. THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER, AND THE SENATE OF THE PHILIPPINES, THROUGH THE SENATE PRESIDENT, respondents. x---------------------------------------------------------x G.R. No. 160365 November 10, 2003 U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C. PADERANGA, DANILO V. ORTIZ, GLORIA C. ESTENZO-RAMOS, LIZA D. CORRO, LUIS V. DIORES, SR., BENJAMIN S. RALLON, ROLANDO P. NONATO, DANTE T. RAMOS, ELSA R. DIVINAGRACIA, KAREN B. CAPARROS-ARQUILLANO, SYLVA G. AGUIRRE-PADERANGA, FOR THEMSELVES AND IN BEHALF OF OTHER CITIZENS OF THE REPUBLIC OF THE PHILIPPINES, petitioners, vs. THE HOUSE OF REPRESENTA-TIVES, SPEAKER JOSE G. DE VENECIA, THE SENATE OF THE PHILIPPINES, SENATE PRESIDENT FRANKLIN DRILON, HOUSE REPRESENTATIVES FELIX FUENTEBELLA AND GILBERTO TEODORO, BY THEMSELVES AND AS REPRESENTATIVES OF THE GROUP OF MORE THAN 80 HOUSE REPRESENTATIVES WHO SIGNED AND FILED THE IMPEACHMENT COMPLAINT AGAINST SUPREME COURT CHIEF JUSTICE HILARIO G. DAVIDE, JR. respondents. x---------------------------------------------------------x G.R. No. 160370 November 10, 2003 FR. RANHILIO CALLANGAN AQUINO, petitioner, vs. THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE SPEAKER OF THE HOUSE OF REPRESENTATIVES, respondents. x---------------------------------------------------------x G.R. No. 160376 November 10, 2003 NILO A. MALANYAON, petitioner, vs. HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN REPRESENTATION OF THE 86 SIGNATORIES OF THE ARTICLES OF IMPEACHMENT AGAINST CHIEF JUSTICE HILARIO G. DAVIDE, JR. AND THE

HOUSE OF REPRESENTATIVES, CONGRESS OF THE PHILIPPINES, REPRESENTED BY ITS SPEAKER, HON. JOSE G. DE VENECIA, respondents. x---------------------------------------------------------x G.R. No. 160392 November 10, 2003 VENICIO S. FLORES AND HECTOR L. HOFILEA, petitioners, vs. THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G. DE VENECIA, AND THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT FRANKLIN DRILON, respondents. x---------------------------------------------------------x G.R. No. 160397 November 10, 2003 IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF JUSTICE HILARIO G. DAVIDE, JR., ATTY. DIOSCORO U. VALLEJOS, JR., petitioner. x---------------------------------------------------------x G.R. No. 160403 November 10, 2003 PHILIPPINE BAR ASSOCIATION, petitioner, vs. THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR PRESIDING OFFICER, HON. JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELA, THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT, HON. FRANKLIN DRILON, respondents. x---------------------------------------------------------x G.R. No. 160405 November 10, 2003 DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY CHAPTER, MANUEL M. MONZON, PRESIDING OF IBP, CEBU PROVINCE, VICTOR A. MAAMBONG, PROVINCIAL BOARD MEMBER, ADELINO B. SITOY, DEAN OF THE COLLEG EOF LAW, UNIVERSITY OF CEBU, YOUNG LAWYERS ASSOCAITION OF CEBU, INC. [YLAC], REPRSEENTED BY ATTY. MANUEL LEGASPI, CONFEDERATION OF ACCREDITED MEDIATORS OF THE PHILIPPINES, INC. [CAMP, INC], REPRESENTED BY RODERIC R. POCA, MANDAUE LAWYERS ASSOCIATION, [MANLAW], REPRESENTED BY FELIPE VELASQUEZ, FEDERACION INTERNACIONAL DE ABOGADAS [FIDA], REPRESENTED BY THELMA L. JORDAN, CARLOS G. CO, PRESIENT OF CEBU CHAMBER OF

COMMERCE AND INDUSTRY AND CEBU LADY LAWYERS ASSOCIATION, INC. [CELLA, INC.], MARIBELLE NAVARRO AND BERNARDITO FLORIDO, PAST PRESIDENT CEBU CHAMBER OF COMMERCE AND INTEGRATED BAR OF THE PHILIPPINES, CEBU CHAPTER, petitioners, vs. THE HOUSE OF REPRESENTA-TIVES, REPRESENTED BY REP. JOSE G. DE VENECIA, AS HOUSE SPEAKER AND THE SENATE, REPRESENTED BY SENATOR FRANKLIN DRILON, AS SENATE PRESIDENT, respondents. CARPIO MORALES, J.: There can be no constitutional crisis arising from a conflict, no matter how passionate and seemingly irreconcilable it may appear to be, over the determination by the independent branches of government of the nature, scope and extent of their respective constitutional powers where the Constitution itself provides for the means and bases for its resolution. Our nation's history is replete with vivid illustrations of the often frictional, at times turbulent, dynamics of the relationship among these co-equal branches. This Court is confronted with one such today involving the legislature and the judiciary which has drawn legal luminaries to chart antipodal courses and not a few of our countrymen to vent cacophonous sentiments thereon. There may indeed be some legitimacy to the characterization that the present controversy subject of the instant petitions whether the filing of the second impeachment complaint against Chief Justice Hilario G. Davide, Jr. with the House of Representatives falls within the one year bar provided in the Constitution, and whether the resolution thereof is a political question has resulted in a political crisis. Perhaps even more truth to the view that it was brought upon by a political crisis of conscience. In any event, it is with the absolute certainty that our Constitution is sufficient to address all the issues which this controversy spawns that this Court unequivocally pronounces, at the first instance, that the feared resort to extra-constitutional methods of resolving it is neither necessary nor legally permissible. Both its resolution and protection of the public interest lie in adherence to, not departure from, the Constitution. In passing over the complex issues arising from the controversy, this Court is ever mindful of the essential truth that the inviolate doctrine of separation of powers among the legislative, executive or judicial branches of government by no means prescribes for absolute autonomy in the discharge by each of that part of the governmental power assigned to it by the sovereign people. At the same time, the corollary doctrine of checks and balances which has been carefully calibrated by the Constitution to temper the official acts of each of these three branches must be given effect without destroying their indispensable co-equality. Taken together, these two fundamental doctrines of republican government, intended as they are to insure that governmental power is wielded only for the good of the people, mandate a relationship of interdependence and coordination among these branches where the delicate

functions of enacting, interpreting and enforcing laws are harmonized to achieve a unity of governance, guided only by what is in the greater interest and well-being of the people. Verily, salus populi est suprema lex. Article XI of our present 1987 Constitution provides: ARTICLE XI Accountability of Public Officers SECTION 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. SECTION 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. SECTION 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment. (2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. (3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. (4) In case the verified complaint or resolution of impeachment is filed by at least onethird of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year. (6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the

President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of twothirds of all the Members of the Senate. (7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment according to law. (8) The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section. (Emphasis and underscoring supplied) Following the above-quoted Section 8 of Article XI of the Constitution, the 12th Congress of the House of Representatives adopted and approved the Rules of Procedure in Impeachment Proceedings (House Impeachment Rules) on November 28, 2001, superseding the previous House Impeachment Rules1 approved by the 11th Congress. The relevant distinctions between these two Congresses' House Impeachment Rules are shown in the following tabulation: 11TH CONGRESS RULES RULE II INITIATING IMPEACHMENT Section 2. Mode of Initiating Impeachment. Impeachment shall be initiated only by a verified complaint for impeachment filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof or by a verified complaint or resolution of impeachment filed by at least onethird (1/3) of all the Members of the House. 12TH CONGRESS NEW RULES RULE V BAR AGAINST INITIATION OF IMPEACHMENT PROCEEDINGS AGAINST THE SAME OFFICIAL Section 16. Impeachment Proceedings Deemed Initiated. In cases where a Member of the House files a verified complaint of impeachment or a citizen files a verified complaint that is endorsed by a Member of the House through a resolution of endorsement against an impeachable officer, impeachment proceedings against such official are deemed initiated on the day the Committee on Justice finds that the verified complaint and/or resolution against such official, as the case may be, is sufficient in substance, or on the date the House votes to

overturn or affirm the finding of the said Committee that the verified complaint and/or resolution, as the case may be, is not sufficient in substance. In cases where a verified complaint or a resolution of impeachment is filed or endorsed, as the case may be, by at least one-third (1/3) of the Members of the House, impeachment proceedings are deemed initiated at the time of the filing of such verified complaint or resolution of impeachment with the Secretary General.

RULE V BAR AGAINST IMPEACHMENT Section 14. Scope of Bar. No impeachment proceedings shall be initiated against the same official more than once within the period of one (1) year.

Section 17. Bar Against Initiation Of Impeachment Proceedings. Within a period of one (1) year from the date impeachment proceedings are deemed initiated as provided in Section 16 hereof, no impeachment proceedings, as such, can be initiated against the same official. (Italics in the original; emphasis and underscoring supplied)

On July 22, 2002, the House of Representatives adopted a Resolution,2 sponsored by Representative Felix William D. Fuentebella, which directed the Committee on Justice "to conduct an investigation, in aid of legislation, on the manner of disbursements and expenditures by the Chief Justice of the Supreme Court of the Judiciary Development Fund (JDF)."3 On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint4 (first impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate Justices5 of this Court for "culpable violation of the Constitution, betrayal of the public trust and other high crimes."6 The complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo B. Zamora and Didagen Piang Dilangalen,7 and was referred to the House Committee on Justice on August 5, 20038 in accordance with Section 3(2) of Article XI of the Constitution which reads:

Section 3(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. The House Committee on Justice ruled on October 13, 2003 that the first impeachment complaint was "sufficient in form,"9 but voted to dismiss the same on October 22, 2003 for being insufficient in substance.10 To date, the Committee Report to this effect has not yet been sent to the House in plenary in accordance with the said Section 3(2) of Article XI of the Constitution. Four months and three weeks since the filing on June 2, 2003 of the first complaint or on October 23, 2003, a day after the House Committee on Justice voted to dismiss it, the second impeachment complaint11 was filed with the Secretary General of the House12 by Representatives Gilberto C. Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella (Third District, Camarines Sur) against Chief Justice Hilario G. Davide, Jr., founded on the alleged results of the legislative inquiry initiated by above-mentioned House Resolution. This second impeachment complaint was accompanied by a "Resolution of Endorsement/Impeachment" signed by at least one-third (1/3) of all the Members of the House of Representatives.13 Thus arose the instant petitions against the House of Representatives, et. al., most of which petitions contend that the filing of the second impeachment complaint is unconstitutional as it violates the provision of Section 5 of Article XI of the Constitution that "[n]o impeachment proceedings shall be initiated against the same official more than once within a period of one year." In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he has a duty as a member of the Integrated Bar of the Philippines to use all available legal remedies to stop an unconstitutional impeachment, that the issues raised in his petition for Certiorari, Prohibition and Mandamus are of transcendental importance, and that he "himself was a victim of the capricious and arbitrary changes in the Rules of Procedure in Impeachment Proceedings introduced by the 12th Congress,"14 posits that his right to bring an impeachment complaint against then Ombudsman Aniano Desierto had been violated due to the capricious and arbitrary changes in the House Impeachment Rules adopted and approved on November 28, 2001 by the House of Representatives and prays that (1) Rule V, Sections 16 and 17 and Rule III, Sections 5, 6, 7, 8, and 9 thereof be declared unconstitutional; (2) this Court issue a writ of mandamus directing respondents House of Representatives et. al. to comply with Article IX, Section 3 (2), (3) and (5) of the Constitution, to return the second impeachment complaint and/or strike it off the records of the House of Representatives, and to promulgate rules which are consistent with the Constitution; and (3) this Court permanently enjoin respondent House of Representatives from proceeding with the second impeachment complaint.

In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens and taxpayers, alleging that the issues of the case are of transcendental importance, pray, in their petition for Certiorari/Prohibition, the issuance of a writ "perpetually" prohibiting respondent House of Representatives from filing any Articles of Impeachment against the Chief Justice with the Senate; and for the issuance of a writ "perpetually" prohibiting respondents Senate and Senate President Franklin Drilon from accepting any Articles of Impeachment against the Chief Justice or, in the event that the Senate has accepted the same, from proceeding with the impeachment trial. In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad Cagampang, as citizens, taxpayers, lawyers and members of the Integrated Bar of the Philippines, alleging that their petition for Prohibition involves public interest as it involves the use of public funds necessary to conduct the impeachment trial on the second impeachment complaint, pray for the issuance of a writ of prohibition enjoining Congress from conducting further proceedings on said second impeachment complaint. In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court has recognized that he has locus standi to bring petitions of this nature in the cases of Chavez v. PCGG15 and Chavez v. PEA-Amari Coastal Bay Development Corporation,16 prays in his petition for Injunction that the second impeachment complaint be declared unconstitutional. In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers and members of the legal profession, pray in their petition for Prohibition for an order prohibiting respondent House of Representatives from drafting, adopting, approving and transmitting to the Senate the second impeachment complaint, and respondents De Venecia and Nazareno from transmitting the Articles of Impeachment to the Senate. In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and Deputy Speaker Raul M. Gonzalez, alleging that, as members of the House of Representatives, they have a legal interest in ensuring that only constitutional impeachment proceedings are initiated, pray in their petition for Certiorari/Prohibition that the second impeachment complaint and any act proceeding therefrom be declared null and void. In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that they have a right to be protected against all forms of senseless spending of taxpayers' money and that they have an obligation to protect the Supreme Court, the Chief Justice, and the integrity of the Judiciary, allege in their petition for Certiorari and Prohibition that it is instituted as "a class suit" and pray that (1) the House Resolution endorsing the second impeachment complaint as well as all issuances emanating therefrom be declared null and void; and (2) this Court enjoin the Senate and the Senate President from taking cognizance of, hearing, trying and deciding the second impeachment complaint, and issue a writ of prohibition commanding the Senate, its prosecutors and agents to desist from conducting any proceedings or to act on the impeachment complaint. In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members are citizens and taxpayers, and its co-petitioner Crispin T. Reyes, a citizen, taxpayer and a member of the Philippine Bar, both allege in their petition, which does not state what its nature is, that the filing

of the second impeachment complaint involves paramount public interest and pray that Sections 16 and 17 of the House Impeachment Rules and the second impeachment complaint/Articles of Impeachment be declared null and void. In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and a member of the Philippine Bar Association and of the Integrated Bar of the Philippines, and petitioner Engr. Maximo N. Menez, Jr., as a taxpayer, pray in their petition for the issuance of a Temporary Restraining Order and Permanent Injunction to enjoin the House of Representatives from proceeding with the second impeachment complaint. In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that it is mandated by the Code of Professional Responsibility to uphold the Constitution, prays in its petition for Certiorari and Prohibition that Sections 16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the House Impeachment Rules be declared unconstitutional and that the House of Representatives be permanently enjoined from proceeding with the second impeachment complaint. In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his petition for Certiorari and Prohibition that the House Impeachment Rules be declared unconstitutional. In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et. al., in their petition for Prohibition and Injunction which they claim is a class suit filed in behalf of all citizens, citing Oposa v. Factoran17 which was filed in behalf of succeeding generations of Filipinos, pray for the issuance of a writ prohibiting respondents House of Representatives and the Senate from conducting further proceedings on the second impeachment complaint and that this Court declare as unconstitutional the second impeachment complaint and the acts of respondent House of Representatives in interfering with the fiscal matters of the Judiciary. In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino, alleging that the issues in his petition for Prohibition are of national and transcendental significance and that as an official of the Philippine Judicial Academy, he has a direct and substantial interest in the unhampered operation of the Supreme Court and its officials in discharging their duties in accordance with the Constitution, prays for the issuance of a writ prohibiting the House of Representatives from transmitting the Articles of Impeachment to the Senate and the Senate from receiving the same or giving the impeachment complaint due course. In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in his petition for Prohibition that respondents Fuentebella and Teodoro at the time they filed the second impeachment complaint, were "absolutely without any legal power to do so, as they acted without jurisdiction as far as the Articles of Impeachment assail the alleged abuse of powers of the Chief Justice to disburse the (JDF)." In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L. Hofilea, alleging that as professors of law they have an abiding interest in the subject matter of their petition for Certiorari and Prohibition as it pertains to a constitutional issue "which they are trying to inculcate in the minds of their students," pray that the House of Representatives be enjoined from

endorsing and the Senate from trying the Articles of Impeachment and that the second impeachment complaint be declared null and void. In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging his locus standi, but alleging that the second impeachment complaint is founded on the issue of whether or not the Judicial Development Fund (JDF) was spent in accordance with law and that the House of Representatives does not have exclusive jurisdiction in the examination and audit thereof, prays in his petition "To Declare Complaint Null and Void for Lack of Cause of Action and Jurisdiction" that the second impeachment complaint be declared null and void. In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the issues raised in the filing of the second impeachment complaint involve matters of transcendental importance, prays in its petition for Certiorari/Prohibition that (1) the second impeachment complaint and all proceedings arising therefrom be declared null and void; (2) respondent House of Representatives be prohibited from transmitting the Articles of Impeachment to the Senate; and (3) respondent Senate be prohibited from accepting the Articles of Impeachment and from conducting any proceedings thereon. In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and taxpayers, pray in their petition for Certiorari/Prohibition that (1) the second impeachment complaint as well as the resolution of endorsement and impeachment by the respondent House of Representatives be declared null and void and (2) respondents Senate and Senate President Franklin Drilon be prohibited from accepting any Articles of Impeachment against the Chief Justice or, in the event that they have accepted the same, that they be prohibited from proceeding with the impeachment trial. Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, the first three of the eighteen which were filed before this Court,18 prayed for the issuance of a Temporary Restraining Order and/or preliminary injunction to prevent the House of Representatives from transmitting the Articles of Impeachment arising from the second impeachment complaint to the Senate. Petition bearing docket number G.R. No. 160261 likewise prayed for the declaration of the November 28, 2001 House Impeachment Rules as null and void for being unconstitutional. Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295, which were filed on October 28, 2003, sought similar relief. In addition, petition bearing docket number G.R. No. 160292 alleged that House Resolution No. 260 (calling for a legislative inquiry into the administration by the Chief Justice of the JDF) infringes on the constitutional doctrine of separation of powers and is a direct violation of the constitutional principle of fiscal autonomy of the judiciary. On October 28, 2003, during the plenary session of the House of Representatives, a motion was put forth that the second impeachment complaint be formally transmitted to the Senate, but it was not carried because the House of Representatives adjourned for lack of quorum,19 and as reflected above, to date, the Articles of Impeachment have yet to be forwarded to the Senate.

Before acting on the petitions with prayers for temporary restraining order and/or writ of preliminary injunction which were filed on or before October 28, 2003, Justices Puno and Vitug offered to recuse themselves, but the Court rejected their offer. Justice Panganiban inhibited himself, but the Court directed him to participate. Without necessarily giving the petitions due course, this Court in its Resolution of October 28, 2003, resolved to (a) consolidate the petitions; (b) require respondent House of Representatives and the Senate, as well as the Solicitor General, to comment on the petitions not later than 4:30 p.m. of November 3, 2003; (c) set the petitions for oral arguments on November 5, 2003, at 10:00 a.m.; and (d) appointed distinguished legal experts as amici curiae.20 In addition, this Court called on petitioners and respondents to maintain the status quo, enjoining all the parties and others acting for and in their behalf to refrain from committing acts that would render the petitions moot. Also on October 28, 2003, when respondent House of Representatives through Speaker Jose C. De Venecia, Jr. and/or its co-respondents, by way of special appearance, submitted a Manifestation asserting that this Court has no jurisdiction to hear, much less prohibit or enjoin the House of Representatives, which is an independent and co-equal branch of government under the Constitution, from the performance of its constitutionally mandated duty to initiate impeachment cases. On even date, Senator Aquilino Q. Pimentel, Jr., in his own behalf, filed a Motion to Intervene (Ex Abudante Cautela)21 and Comment, praying that "the consolidated petitions be dismissed for lack of jurisdiction of the Court over the issues affecting the impeachment proceedings and that the sole power, authority and jurisdiction of the Senate as the impeachment court to try and decide impeachment cases, including the one where the Chief Justice is the respondent, be recognized and upheld pursuant to the provisions of Article XI of the Constitution."22 Acting on the other petitions which were subsequently filed, this Court resolved to (a) consolidate them with the earlier consolidated petitions; (b) require respondents to file their comment not later than 4:30 p.m. of November 3, 2003; and (c) include them for oral arguments on November 5, 2003. On October 29, 2003, the Senate of the Philippines, through Senate President Franklin M. Drilon, filed a Manifestation stating that insofar as it is concerned, the petitions are plainly premature and have no basis in law or in fact, adding that as of the time of the filing of the petitions, no justiciable issue was presented before it since (1) its constitutional duty to constitute itself as an impeachment court commences only upon its receipt of the Articles of Impeachment, which it had not, and (2) the principal issues raised by the petitions pertain exclusively to the proceedings in the House of Representatives. On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, and 160295, questioning the status quo Resolution issued by this Court on October 28, 2003 on the ground that it would unnecessarily put Congress and this Court in a "constitutional deadlock" and praying for the dismissal of all the petitions as the matter in question is not yet ripe for judicial determination.

On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino Quadra filed in G.R. No. 160262 a "Motion for Leave of Court to Intervene and to Admit the Herein Incorporated Petition in Intervention." On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc. filed a Motion for Intervention in G.R. No. 160261. On November 5, 2003, World War II Veterans Legionnaires of the Philippines, Inc. also filed a "Petition-in-Intervention with Leave to Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and 160310. The motions for intervention were granted and both Senator Pimentel's Comment and Attorneys Macalintal and Quadra's Petition in Intervention were admitted. On November 5-6, 2003, this Court heard the views of the amici curiae and the arguments of petitioners, intervenors Senator Pimentel and Attorney Makalintal, and Solicitor General Alfredo Benipayo on the principal issues outlined in an Advisory issued by this Court on November 3, 2003, to wit: Whether the certiorari jurisdiction of the Supreme Court may be invoked; who can invoke it; on what issues and at what time; and whether it should be exercised by this Court at this time. In discussing these issues, the following may be taken up: a) locus standi of petitioners; b) ripeness(prematurity; mootness); c) political question/justiciability; d) House's "exclusive" power to initiate all cases of impeachment; e) Senate's "sole" power to try and decide all cases of impeachment; f) constitutionality of the House Rules on Impeachment vis-a-vis Section 3(5) of Article XI of the Constitution; and g) judicial restraint (Italics in the original) In resolving the intricate conflux of preliminary and substantive issues arising from the instant petitions as well as the myriad arguments and opinions presented for and against the grant of the reliefs prayed for, this Court has sifted and determined them to be as follows: (1) the threshold and novel issue of whether or not the power of judicial review extends to those arising from impeachment proceedings; (2) whether or not the essential pre-requisites for the exercise of the power of judicial review have been fulfilled; and (3) the substantive issues yet remaining. These matters shall now be discussed in seriatim.

Judicial Review As reflected above, petitioners plead for this Court to exercise the power of judicial review to determine the validity of the second impeachment complaint. This Court's power of judicial review is conferred on the judicial branch of the government in Section 1, Article VIII of our present 1987 Constitution: SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. (Emphasis supplied) Such power of judicial review was early on exhaustively expounded upon by Justice Jose P. Laurel in the definitive 1936 case of Angara v. Electoral Commission23 after the effectivity of the 1935 Constitution whose provisions, unlike the present Constitution, did not contain the present provision in Article VIII, Section 1, par. 2 on what judicial power includes. Thus, Justice Laurel discoursed: x x x In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof. As any human production, our Constitution is of course lacking perfection and perfectibility, but as much as it was within the power of our people, acting through their delegates to so provide, that instrument which is the expression of their sovereignty however limited, has established a republican government intended to operate and function as a harmonious whole, under a system of checks and balances, and subject to specific limitations and restrictions provided in the said instrument. The Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere political apothegms. Certainly, the limitations and restrictions embodied in our Constitution are real as they should be in any living constitution. In the United States where no express constitutional grant is found in their constitution, the possession of this moderating power of the courts, not to speak of its historical origin and development there, has been set at rest by popular acquiescence for a period of more than one and a half centuries. In

our case, this moderating power is granted, if not expressly, by clear implication from section 2 of article VIII of our Constitution. The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. Even then, this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government.24 (Italics in the original; emphasis and underscoring supplied) As pointed out by Justice Laurel, this "moderating power" to "determine the proper allocation of powers" of the different branches of government and "to direct the course of government along constitutional channels" is inherent in all courts25 as a necessary consequence of the judicial power itself, which is "the power of the court to settle actual controversies involving rights which are legally demandable and enforceable."26 Thus, even in the United States where the power of judicial review is not explicitly conferred upon the courts by its Constitution, such power has "been set at rest by popular acquiescence for a period of more than one and a half centuries." To be sure, it was in the 1803 leading case of Marbury v. Madison27 that the power of judicial review was first articulated by Chief Justice Marshall, to wit: It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other

departments, are bound by that instrument.28 (Italics in the original; emphasis supplied) In our own jurisdiction, as early as 1902, decades before its express grant in the 1935 Constitution, the power of judicial review was exercised by our courts to invalidate constitutionally infirm acts.29 And as pointed out by noted political law professor and former Supreme Court Justice Vicente V. Mendoza,30 the executive and legislative branches of our government in fact effectively acknowledged this power of judicial review in Article 7 of the Civil Code, to wit: Article 7. Laws are repealed only by subsequent ones, and their violation or nonobservance shall not be excused by disuse, or custom or practice to the contrary. When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution. (Emphasis supplied) As indicated in Angara v. Electoral Commission,31 judicial review is indeed an integral component of the delicate system of checks and balances which, together with the corollary principle of separation of powers, forms the bedrock of our republican form of government and insures that its vast powers are utilized only for the benefit of the people for which it serves. The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. x x x And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution.32 (Emphasis and underscoring supplied) In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "x x x judicial review is essential for the maintenance and enforcement of the separation of powers and the balancing of powers among the three great departments of government through the definition and maintenance of the boundaries of authority and control between them."33 To him, "[j]udicial review is the chief, indeed the only, medium of participation or instrument of intervention of the judiciary in that balancing operation."34 To ensure the potency of the power of judicial review to curb grave abuse of discretion by "any branch or instrumentalities of government," the afore-quoted Section 1, Article VIII of the

Constitution engraves, for the first time into its history, into block letter law the so-called "expanded certiorari jurisdiction" of this Court, the nature of and rationale for which are mirrored in the following excerpt from the sponsorship speech of its proponent, former Chief Justice Constitutional Commissioner Roberto Concepcion: xxx The first section starts with a sentence copied from former Constitutions. It says: The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. I suppose nobody can question it. The next provision is new in our constitutional law. I will read it first and explain. Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part or instrumentality of the government. Fellow Members of this Commission, this is actually a product of our experience during martial law. As a matter of fact, it has some antecedents in the past, but the role of the judiciary during the deposed regime was marred considerably by the circumstance that in a number of cases against the government, which then had no legal defense at all, the solicitor general set up the defense of political questions and got away with it. As a consequence, certain principles concerning particularly the writ of habeas corpus, that is, the authority of courts to order the release of political detainees, and other matters related to the operation and effect of martial law failed because the government set up the defense of political question. And the Supreme Court said: "Well, since it is political, we have no authority to pass upon it." The Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did not merely request an encroachment upon the rights of the people, but it, in effect, encouraged further violations thereof during the martial law regime. x x x xxx Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature.

This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute a political question.35 (Italics in the original; emphasis and underscoring supplied) To determine the merits of the issues raised in the instant petitions, this Court must necessarily turn to the Constitution itself which employs the well-settled principles of constitutional construction. First, verba legis, that is, wherever possible, the words used in the Constitution must be given their ordinary meaning except where technical terms are employed. Thus, in J.M. Tuason & Co., Inc. v. Land Tenure Administration,36 this Court, speaking through Chief Justice Enrique Fernando, declared: We look to the language of the document itself in our search for its meaning. We do not of course stop there, but that is where we begin. It is to be assumed that the words in which constitutional provisions are couched express the objective sought to be attained. They are to be given their ordinary meaning except where technical terms are employed in which case the significance thus attached to them prevails. As the Constitution is not primarily a lawyer's document, it being essential for the rule of law to obtain that it should ever be present in the people's consciousness, its language as much as possible should be understood in the sense they have in common use. What it says according to the text of the provision to be construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers and the people mean what they say. Thus these are the cases where the need for construction is reduced to a minimum.37 (Emphasis and underscoring supplied) Second, where there is ambiguity, ratio legis est anima. The words of the Constitution should be interpreted in accordance with the intent of its framers. And so did this Court apply this principle in Civil Liberties Union v. Executive Secretary38 in this wise: A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the light of the history of the times, and the condition and circumstances under which the Constitution was framed. The object is to ascertain the reason which induced the framers of the Constitution to enact the particular provision and the purpose sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that reason and calculated to effect that purpose.39 (Emphasis and underscoring supplied) As it did in Nitafan v. Commissioner on Internal Revenue40 where, speaking through Madame Justice Amuerfina A. Melencio-Herrera, it declared:

x x x The ascertainment of that intent is but in keeping with the fundamental principle of constitutional construction that the intent of the framers of the organic law and of the people adopting it should be given effect. The primary task in constitutional construction is to ascertain and thereafter assure the realization of the purpose of the framers and of the people in the adoption of the Constitution. It may also be safely assumed that the people in ratifying the Constitution were guided mainly by the explanation offered by the framers.41 (Emphasis and underscoring supplied) Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. Thus, in Chiongbian v. De Leon,42 this Court, through Chief Justice Manuel Moran declared: x x x [T]he members of the Constitutional Convention could not have dedicated a provision of our Constitution merely for the benefit of one person without considering that it could also affect others. When they adopted subsection 2, they permitted, if not willed, that said provision should function to the full extent of its substance and its terms, not by itself alone, but in conjunction with all other provisions of that great document.43 (Emphasis and underscoring supplied) Likewise, still in Civil Liberties Union v. Executive Secretary,44 this Court affirmed that: It is a well-established rule in constitutional construction that no one provision of the Constitution is to be separated from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the instrument. Sections bearing on a particular subject should be considered and interpreted together as to effectuate the whole purpose of the Constitution and one section is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand together. In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make the words idle and nugatory.45 (Emphasis supplied) If, however, the plain meaning of the word is not found to be clear, resort to other aids is available. In still the same case of Civil Liberties Union v. Executive Secretary, this Court expounded: While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the constitutional convention "are of value as showing the views of the individual members, and as indicating the reasons for their votes, but they give us no light as to the views of the large majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer to construe the constitution from what appears upon its face."

The proper interpretation therefore depends more on how it was understood by the people adopting it than in the framers's understanding thereof.46 (Emphasis and underscoring supplied) It is in the context of the foregoing backdrop of constitutional refinement and jurisprudential application of the power of judicial review that respondents Speaker De Venecia, et. al. and intervenor Senator Pimentel raise the novel argument that the Constitution has excluded impeachment proceedings from the coverage of judicial review. Briefly stated, it is the position of respondents Speaker De Venecia et. al. that impeachment is a political action which cannot assume a judicial character. Hence, any question, issue or incident arising at any stage of the impeachment proceeding is beyond the reach of judicial review.47 For his part, intervenor Senator Pimentel contends that the Senate's "sole power to try" impeachment cases48 (1) entirely excludes the application of judicial review over it; and (2) necessarily includes the Senate's power to determine constitutional questions relative to impeachment proceedings.49 In furthering their arguments on the proposition that impeachment proceedings are outside the scope of judicial review, respondents Speaker De Venecia, et. al. and intervenor Senator Pimentel rely heavily on American authorities, principally the majority opinion in the case of Nixon v. United States.50 Thus, they contend that the exercise of judicial review over impeachment proceedings is inappropriate since it runs counter to the framers' decision to allocate to different fora the powers to try impeachments and to try crimes; it disturbs the system of checks and balances, under which impeachment is the only legislative check on the judiciary; and it would create a lack of finality and difficulty in fashioning relief.51 Respondents likewise point to deliberations on the US Constitution to show the intent to isolate judicial power of review in cases of impeachment. Respondents' and intervenors' reliance upon American jurisprudence, the American Constitution and American authorities cannot be credited to support the proposition that the Senate's "sole power to try and decide impeachment cases," as provided for under Art. XI, Sec. 3(6) of the Constitution, is a textually demonstrable constitutional commitment of all issues pertaining to impeachment to the legislature, to the total exclusion of the power of judicial review to check and restrain any grave abuse of the impeachment process. Nor can it reasonably support the interpretation that it necessarily confers upon the Senate the inherently judicial power to determine constitutional questions incident to impeachment proceedings. Said American jurisprudence and authorities, much less the American Constitution, are of dubious application for these are no longer controlling within our jurisdiction and have only limited persuasive merit insofar as Philippine constitutional law is concerned. As held in the case of Garcia vs. COMELEC,52 "[i]n resolving constitutional disputes, [this Court] should not be beguiled by foreign jurisprudence some of which are hardly applicable because they have been dictated by different constitutional settings and needs."53 Indeed, although the Philippine Constitution can trace its origins to that of the United States, their paths of development have long since diverged. In the colorful words of Father Bernas, "[w]e have cut the umbilical cord."

The major difference between the judicial power of the Philippine Supreme Court and that of the U.S. Supreme Court is that while the power of judicial review is only impliedly granted to the U.S. Supreme Court and is discretionary in nature, that granted to the Philippine Supreme Court and lower courts, as expressly provided for in the Constitution, is not just a power but also a duty, and it was given an expanded definition to include the power to correct any grave abuse of discretion on the part of any government branch or instrumentality. There are also glaring distinctions between the U.S. Constitution and the Philippine Constitution with respect to the power of the House of Representatives over impeachment proceedings. While the U.S. Constitution bestows sole power of impeachment to the House of Representatives without limitation,54 our Constitution, though vesting in the House of Representatives the exclusive power to initiate impeachment cases,55 provides for several limitations to the exercise of such power as embodied in Section 3(2), (3), (4) and (5), Article XI thereof. These limitations include the manner of filing, required vote to impeach, and the one year bar on the impeachment of one and the same official. Respondents are also of the view that judicial review of impeachments undermines their finality and may also lead to conflicts between Congress and the judiciary. Thus, they call upon this Court to exercise judicial statesmanship on the principle that "whenever possible, the Court should defer to the judgment of the people expressed legislatively, recognizing full well the perils of judicial willfulness and pride."56 But did not the people also express their will when they instituted the above-mentioned safeguards in the Constitution? This shows that the Constitution did not intend to leave the matter of impeachment to the sole discretion of Congress. Instead, it provided for certain welldefined limits, or in the language of Baker v. Carr,57 "judicially discoverable standards" for determining the validity of the exercise of such discretion, through the power of judicial review. The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by respondents in support of the argument that the impeachment power is beyond the scope of judicial review, are not in point. These cases concern the denial of petitions for writs of mandamus to compel the legislature to perform non-ministerial acts, and do not concern the exercise of the power of judicial review. There is indeed a plethora of cases in which this Court exercised the power of judicial review over congressional action. Thus, in Santiago v. Guingona, Jr.,60 this Court ruled that it is well within the power and jurisdiction of the Court to inquire whether the Senate or its officials committed a violation of the Constitution or grave abuse of discretion in the exercise of their functions and prerogatives. In Tanada v. Angara,61 in seeking to nullify an act of the Philippine Senate on the ground that it contravened the Constitution, it held that the petition raises a justiciable controversy and that when an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. In Bondoc v. Pineda,62 this Court declared null and void a resolution of the House of Representatives withdrawing the nomination, and rescinding the election, of a congressman as a member of the House Electoral Tribunal for being violative of Section 17, Article VI of the Constitution. In Coseteng v. Mitra,63 it held that the resolution of whether the

House representation in the Commission on Appointments was based on proportional representation of the political parties as provided in Section 18, Article VI of the Constitution is subject to judicial review. In Daza v. Singson,64 it held that the act of the House of Representatives in removing the petitioner from the Commission on Appointments is subject to judicial review. In Tanada v. Cuenco,65 it held that although under the Constitution, the legislative power is vested exclusively in Congress, this does not detract from the power of the courts to pass upon the constitutionality of acts of Congress. In Angara v. Electoral Commission,66 it ruled that confirmation by the National Assembly of the election of any member, irrespective of whether his election is contested, is not essential before such memberelect may discharge the duties and enjoy the privileges of a member of the National Assembly. Finally, there exists no constitutional basis for the contention that the exercise of judicial review over impeachment proceedings would upset the system of checks and balances. Verily, the Constitution is to be interpreted as a whole and "one section is not to be allowed to defeat another."67 Both are integral components of the calibrated system of independence and interdependence that insures that no branch of government act beyond the powers assigned to it by the Constitution. Essential Requisites for Judicial Review As clearly stated in Angara v. Electoral Commission, the courts' power of judicial review, like almost all powers conferred by the Constitution, is subject to several limitations, namely: (1) an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have "standing" to challenge; he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest possible opportunity; and (4) the issue of constitutionality must be the very lis mota of the case. x x x Even then, this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government.68 (Italics in the original) Standing Locus standi or legal standing or has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the question of standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which

sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions.69 Intervenor Soriano, in praying for the dismissal of the petitions, contends that petitioners do not have standing since only the Chief Justice has sustained and will sustain direct personal injury. Amicus curiae former Justice Minister and Solicitor General Estelito Mendoza similarly contends. Upon the other hand, the Solicitor General asserts that petitioners have standing since this Court had, in the past, accorded standing to taxpayers, voters, concerned citizens, legislators in cases involving paramount public interest70 and transcendental importance,71 and that procedural matters are subordinate to the need to determine whether or not the other branches of the government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them.72 Amicus curiae Dean Raul Pangalangan of the U.P. College of Law is of the same opinion, citing transcendental importance and the wellentrenched rule exception that, when the real party in interest is unable to vindicate his rights by seeking the same remedies, as in the case of the Chief Justice who, for ethical reasons, cannot himself invoke the jurisdiction of this Court, the courts will grant petitioners standing. There is, however, a difference between the rule on real-party-in-interest and the rule on standing, for the former is a concept of civil procedure73 while the latter has constitutional underpinnings.74 In view of the arguments set forth regarding standing, it behooves the Court to reiterate the ruling in Kilosbayan, Inc. v. Morato75 to clarify what is meant by locus standi and to distinguish it from real party-in-interest. The difference between the rule on standing and real party in interest has been noted by authorities thus: "It is important to note . . . that standing because of its constitutional and public policy underpinnings, is very different from questions relating to whether a particular plaintiff is the real party in interest or has capacity to sue. Although all three requirements are directed towards ensuring that only certain parties can maintain an action, standing restrictions require a partial consideration of the merits, as well as broader policy concerns relating to the proper role of the judiciary in certain areas. Standing is a special concern in constitutional law because in some cases suits are brought not by parties who have been personally injured by the operation of a law or by official action taken, but by concerned citizens, taxpayers or voters who actually sue in the public interest. Hence the question in standing is whether such parties have "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." xxx On the other hand, the question as to "real party in interest" is whether he is "the party who would be benefited or injured by the judgment, or the 'party entitled to the avails of the suit.'"76 (Citations omitted)

While rights personal to the Chief Justice may have been injured by the alleged unconstitutional acts of the House of Representatives, none of the petitioners before us asserts a violation of the personal rights of the Chief Justice. On the contrary, they invariably invoke the vindication of their own rights as taxpayers; members of Congress; citizens, individually or in a class suit; and members of the bar and of the legal profession which were supposedly violated by the alleged unconstitutional acts of the House of Representatives. In a long line of cases, however, concerned citizens, taxpayers and legislators when specific requirements have been met have been given standing by this Court. When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.77 In fine, when the proceeding involves the assertion of a public right,78 the mere fact that he is a citizen satisfies the requirement of personal interest. In the case of a taxpayer, he is allowed to sue where there is a claim that public funds are illegally disbursed, or that public money is being deflected to any improper purpose, or that there is a wastage of public funds through the enforcement of an invalid or unconstitutional law.79 Before he can invoke the power of judicial review, however, he must specifically prove that he has sufficient interest in preventing the illegal expenditure of money raised by taxation and that he would sustain a direct injury as a result of the enforcement of the questioned statute or contract. It is not sufficient that he has merely a general interest common to all members of the public.80 At all events, courts are vested with discretion as to whether or not a taxpayer's suit should be entertained.81 This Court opts to grant standing to most of the petitioners, given their allegation that any impending transmittal to the Senate of the Articles of Impeachment and the ensuing trial of the Chief Justice will necessarily involve the expenditure of public funds. As for a legislator, he is allowed to sue to question the validity of any official action which he claims infringes his prerogatives as a legislator.82 Indeed, a member of the House of Representatives has standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in his office.83 While an association has legal personality to represent its members,84 especially when it is composed of substantial taxpayers and the outcome will affect their vital interests,85 the mere invocation by the Integrated Bar of the Philippines or any member of the legal profession of the duty to preserve the rule of law and nothing more, although undoubtedly true, does not suffice to clothe it with standing. Its interest is too general. It is shared by other groups and the whole citizenry. However, a reading of the petitions shows that it has advanced constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and weight as

precedents.86 It, therefore, behooves this Court to relax the rules on standing and to resolve the issues presented by it. In the same vein, when dealing with class suits filed in behalf of all citizens, persons intervening must be sufficiently numerous to fully protect the interests of all concerned87 to enable the court to deal properly with all interests involved in the suit,88 for a judgment in a class suit, whether favorable or unfavorable to the class, is, under the res judicata principle, binding on all members of the class whether or not they were before the court.89 Where it clearly appears that not all interests can be sufficiently represented as shown by the divergent issues raised in the numerous petitions before this Court, G.R. No. 160365 as a class suit ought to fail. Since petitioners additionally allege standing as citizens and taxpayers, however, their petition will stand. The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground of transcendental importance, while Atty. Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his standing. There being no doctrinal definition of transcendental importance, the following instructive determinants formulated by former Supreme Court Justice Florentino P. Feliciano are instructive: (1) the character of the funds or other assets involved in the case; (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; and (3) the lack of any other party with a more direct and specific interest in raising the questions being raised.90 Applying these determinants, this Court is satisfied that the issues raised herein are indeed of transcendental importance. In not a few cases, this Court has in fact adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of transcendental significance to the people, as when the issues raised are of paramount importance to the public.91 Such liberality does not, however, mean that the requirement that a party should have an interest in the matter is totally eliminated. A party must, at the very least, still plead the existence of such interest, it not being one of which courts can take judicial notice. In petitioner Vallejos' case, he failed to allege any interest in the case. He does not thus have standing. With respect to the motions for intervention, Rule 19, Section 2 of the Rules of Court requires an intervenor to possess a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof. While intervention is not a matter of right, it may be permitted by the courts when the applicant shows facts which satisfy the requirements of the law authorizing intervention.92 In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadra's case, they seek to join petitioners Candelaria, et. al. in G.R. No. 160262. Since, save for one additional issue, they raise the same issues and the same standing, and no objection on the part of petitioners Candelaria, et. al. has been interposed, this Court as earlier stated, granted the Motion for Leave of Court to Intervene and Petition-in-Intervention. Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et. al. sought to join petitioner Francisco in G.R. No. 160261. Invoking their right as citizens to intervene,

alleging that "they will suffer if this insidious scheme of the minority members of the House of Representatives is successful," this Court found the requisites for intervention had been complied with. Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and 160310 were of transcendental importance, World War II Veterans Legionnaires of the Philippines, Inc. filed a "Petition-in-Intervention with Leave to Intervene" to raise the additional issue of whether or not the second impeachment complaint against the Chief Justice is valid and based on any of the grounds prescribed by the Constitution. Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et al. and World War II Veterans Legionnaires of the Philippines, Inc. possess a legal interest in the matter in litigation the respective motions to intervene were hereby granted. Senator Aquilino Pimentel, on the other hand, sought to intervene for the limited purpose of making of record and arguing a point of view that differs with Senate President Drilon's. He alleges that submitting to this Court's jurisdiction as the Senate President does will undermine the independence of the Senate which will sit as an impeachment court once the Articles of Impeachment are transmitted to it from the House of Representatives. Clearly, Senator Pimentel possesses a legal interest in the matter in litigation, he being a member of Congress against which the herein petitions are directed. For this reason, and to fully ventilate all substantial issues relating to the matter at hand, his Motion to Intervene was granted and he was, as earlier stated, allowed to argue. Lastly, as to Jaime N. Soriano's motion to intervene, the same must be denied for, while he asserts an interest as a taxpayer, he failed to meet the standing requirement for bringing taxpayer's suits as set forth in Dumlao v. Comelec,93 to wit: x x x While, concededly, the elections to be held involve the expenditure of public moneys, nowhere in their Petition do said petitioners allege that their tax money is "being extracted and spent in violation of specific constitutional protection against abuses of legislative power," or that there is a misapplication of such funds by respondent COMELEC, or that public money is being deflected to any improper purpose. Neither do petitioners seek to restrain respondent from wasting public funds through the enforcement of an invalid or unconstitutional law.94 (Citations omitted) In praying for the dismissal of the petitions, Soriano failed even to allege that the act of petitioners will result in illegal disbursement of public funds or in public money being deflected to any improper purpose. Additionally, his mere interest as a member of the Bar does not suffice to clothe him with standing. Ripeness and Prematurity In Tan v. Macapagal,95 this Court, through Chief Justice Fernando, held that for a case to be considered ripe for adjudication, "it is a prerequisite that something had by then been accomplished or performed by either branch before a court may come into the picture."96 Only

then may the courts pass on the validity of what was done, if and when the latter is challenged in an appropriate legal proceeding. The instant petitions raise in the main the issue of the validity of the filing of the second impeachment complaint against the Chief Justice in accordance with the House Impeachment Rules adopted by the 12th Congress, the constitutionality of which is questioned. The questioned acts having been carried out, i.e., the second impeachment complaint had been filed with the House of Representatives and the 2001 Rules have already been already promulgated and enforced, the prerequisite that the alleged unconstitutional act should be accomplished and performed before suit, as Tan v. Macapagal holds, has been complied with. Related to the issue of ripeness is the question of whether the instant petitions are premature. Amicus curiae former Senate President Jovito R. Salonga opines that there may be no urgent need for this Court to render a decision at this time, it being the final arbiter on questions of constitutionality anyway. He thus recommends that all remedies in the House and Senate should first be exhausted. Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law who suggests to this Court to take judicial notice of on-going attempts to encourage signatories to the second impeachment complaint to withdraw their signatures and opines that the House Impeachment Rules provide for an opportunity for members to raise constitutional questions themselves when the Articles of Impeachment are presented on a motion to transmit to the same to the Senate. The dean maintains that even assuming that the Articles are transmitted to the Senate, the Chief Justice can raise the issue of their constitutional infirmity by way of a motion to dismiss. The dean's position does not persuade. First, the withdrawal by the Representatives of their signatures would not, by itself, cure the House Impeachment Rules of their constitutional infirmity. Neither would such a withdrawal, by itself, obliterate the questioned second impeachment complaint since it would only place it under the ambit of Sections 3(2) and (3) of Article XI of the Constitution97 and, therefore, petitioners would continue to suffer their injuries. Second and most importantly, the futility of seeking remedies from either or both Houses of Congress before coming to this Court is shown by the fact that, as previously discussed, neither the House of Representatives nor the Senate is clothed with the power to rule with definitiveness on the issue of constitutionality, whether concerning impeachment proceedings or otherwise, as said power is exclusively vested in the judiciary by the earlier quoted Section I, Article VIII of the Constitution. Remedy cannot be sought from a body which is bereft of power to grant it. Justiciability In the leading case of Tanada v. Cuenco,98 Chief Justice Roberto Concepcion defined the term "political question," viz: [T]he term "political question" connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy. In other words, in the language of Corpus Juris Secundum, it refers to "those questions which, under the Constitution, are to be decided

by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government." It is concerned with issues dependent upon the wisdom, not legality, of a particular measure.99 (Italics in the original) Prior to the 1973 Constitution, without consistency and seemingly without any rhyme or reason, this Court vacillated on its stance of taking cognizance of cases which involved political questions. In some cases, this Court hid behind the cover of the political question doctrine and refused to exercise its power of judicial review.100 In other cases, however, despite the seeming political nature of the therein issues involved, this Court assumed jurisdiction whenever it found constitutionally imposed limits on powers or functions conferred upon political bodies.101 Even in the landmark 1988 case of Javellana v. Executive Secretary102 which raised the issue of whether the 1973 Constitution was ratified, hence, in force, this Court shunted the political question doctrine and took cognizance thereof. Ratification by the people of a Constitution is a political question, it being a question decided by the people in their sovereign capacity. The frequency with which this Court invoked the political question doctrine to refuse to take jurisdiction over certain cases during the Marcos regime motivated Chief Justice Concepcion, when he became a Constitutional Commissioner, to clarify this Court's power of judicial review and its application on issues involving political questions, viz: MR. CONCEPCION. Thank you, Mr. Presiding Officer. I will speak on the judiciary. Practically, everybody has made, I suppose, the usual comment that the judiciary is the weakest among the three major branches of the service. Since the legislature holds the purse and the executive the sword, the judiciary has nothing with which to enforce its decisions or commands except the power of reason and appeal to conscience which, after all, reflects the will of God, and is the most powerful of all other powers without exception. x x x And so, with the body's indulgence, I will proceed to read the provisions drafted by the Committee on the Judiciary. The first section starts with a sentence copied from former Constitutions. It says: The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. I suppose nobody can question it. The next provision is new in our constitutional law. I will read it first and explain. Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part or instrumentality of the government.

Fellow Members of this Commission, this is actually a product of our experience during martial law. As a matter of fact, it has some antecedents in the past, but the role of the judiciary during the deposed regime was marred considerably by the circumstance that in a number of cases against the government, which then had no legal defense at all, the solicitor general set up the defense of political questions and got away with it. As a consequence, certain principles concerning particularly the writ of habeas corpus, that is, the authority of courts to order the release of political detainees, and other matters related to the operation and effect of martial law failed because the government set up the defense of political question. And the Supreme Court said: "Well, since it is political, we have no authority to pass upon it." The Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did not merely request an encroachment upon the rights of the people, but it, in effect, encouraged further violations thereof during the martial law regime. I am sure the members of the Bar are familiar with this situation. But for the benefit of the Members of the Commission who are not lawyers, allow me to explain. I will start with a decision of the Supreme Court in 1973 on the case of Javellana vs. the Secretary of Justice, if I am not mistaken. Martial law was announced on September 22, although the proclamation was dated September 21. The obvious reason for the delay in its publication was that the administration had apprehended and detained prominent newsmen on September 21. So that when martial law was announced on September 22, the media hardly published anything about it. In fact, the media could not publish any story not only because our main writers were already incarcerated, but also because those who succeeded them in their jobs were under mortal threat of being the object of wrath of the ruling party. The 1971 Constitutional Convention had begun on June 1, 1971 and by September 21 or 22 had not finished the Constitution; it had barely agreed in the fundamentals of the Constitution. I forgot to say that upon the proclamation of martial law, some delegates to that 1971 Constitutional Convention, dozens of them, were picked up. One of them was our very own colleague, Commissioner Calderon. So, the unfinished draft of the Constitution was taken over by representatives of Malacaang. In 17 days, they finished what the delegates to the 1971 Constitutional Convention had been unable to accomplish for about 14 months. The draft of the 1973 Constitution was presented to the President around December 1, 1972, whereupon the President issued a decree calling a plebiscite which suspended the operation of some provisions in the martial law decree which prohibited discussions, much less public discussions of certain matters of public concern. The purpose was presumably to allow a free discussion on the draft of the Constitution on which a plebiscite was to be held sometime in January 1973. If I may use a word famous by our colleague, Commissioner Ople, during the interregnum, however, the draft of the Constitution was analyzed and criticized with such a telling effect that Malacaang felt the danger of its approval. So, the President suspended indefinitely the holding of the plebiscite and announced that he would consult the people in a referendum to be held from January 10 to January 15. But the questions to be submitted in the referendum were not announced until the eve of its scheduled beginning, under the supposed supervision not of the Commission on Elections, but of what was then designated as "citizens assemblies or barangays." Thus the barangays came into existence. The questions to be propounded were released with proposed answers thereto, suggesting that it was unnecessary to hold a plebiscite because the answers given in the referendum should be

regarded as the votes cast in the plebiscite. Thereupon, a motion was filed with the Supreme Court praying that the holding of the referendum be suspended. When the motion was being heard before the Supreme Court, the Minister of Justice delivered to the Court a proclamation of the President declaring that the new Constitution was already in force because the overwhelming majority of the votes cast in the referendum favored the Constitution. Immediately after the departure of the Minister of Justice, I proceeded to the session room where the case was being heard. I then informed the Court and the parties the presidential proclamation declaring that the 1973 Constitution had been ratified by the people and is now in force. A number of other cases were filed to declare the presidential proclamation null and void. The main defense put up by the government was that the issue was a political question and that the court had no jurisdiction to entertain the case. xxx The government said that in a referendum held from January 10 to January 15, the vast majority ratified the draft of the Constitution. Note that all members of the Supreme Court were residents of Manila, but none of them had been notified of any referendum in their respective places of residence, much less did they participate in the alleged referendum. None of them saw any referendum proceeding. In the Philippines, even local gossips spread like wild fire. So, a majority of the members of the Court felt that there had been no referendum. Second, a referendum cannot substitute for a plebiscite. There is a big difference between a referendum and a plebiscite. But another group of justices upheld the defense that the issue was a political question. Whereupon, they dismissed the case. This is not the only major case in which the plea of "political question" was set up. There have been a number of other cases in the past. x x x The defense of the political question was rejected because the issue was clearly justiciable. xxx x x x When your Committee on the Judiciary began to perform its functions, it faced the following questions: What is judicial power? What is a political question? The Supreme Court, like all other courts, has one main function: to settle actual controversies involving conflicts of rights which are demandable and enforceable. There are rights which are guaranteed by law but cannot be enforced by a judiciary party. In a decided case, a husband complained that his wife was unwilling to perform her duties as a wife. The Court said: "We can tell your wife what her duties as such are and that she is bound to comply with them, but we cannot force her physically to discharge her main marital duty to her husband. There are some rights guaranteed by law, but they are so

personal that to enforce them by actual compulsion would be highly derogatory to human dignity." This is why the first part of the second paragraph of Section I provides that: Judicial power includes the duty of courts to settle actual controversies involving rights which are legally demandable or enforceable . . . The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a presidential system of government, the Supreme Court has, also another important function. The powers of government are generally considered divided into three branches: the Legislative, the Executive and the Judiciary. Each one is supreme within its own sphere and independent of the others. Because of that supremacy power to determine whether a given law is valid or not is vested in courts of justice. Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature. This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute a political question. I have made these extended remarks to the end that the Commissioners may have an initial food for thought on the subject of the judiciary.103 (Italics in the original; emphasis supplied) During the deliberations of the Constitutional Commission, Chief Justice Concepcion further clarified the concept of judicial power, thus: MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial power is not vested in the Supreme Court alone but also in other lower courts as may be created by law. MR. CONCEPCION. Yes. MR. NOLLEDO. And so, is this only an example? MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify political questions with jurisdictional questions. But there is a difference. MR. NOLLEDO. Because of the expression "judicial power"?

MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but where there is a question as to whether the government had authority or had abused its authority to the extent of lacking jurisdiction or excess of jurisdiction, that is not a political question. Therefore, the court has the duty to decide. xxx FR. BERNAS. Ultimately, therefore, it will always have to be decided by the Supreme Court according to the new numerical need for votes. On another point, is it the intention of Section 1 to do away with the political question doctrine? MR. CONCEPCION. No. FR. BERNAS. It is not. MR. CONCEPCION. No, because whenever there is an abuse of discretion, amounting to a lack of jurisdiction. . . FR. BERNAS. So, I am satisfied with the answer that it is not intended to do away with the political question doctrine. MR. CONCEPCION. No, certainly not. When this provision was originally drafted, it sought to define what is judicial power. But the Gentleman will notice it says, "judicial power includes" and the reason being that the definition that we might make may not cover all possible areas. FR. BERNAS. So, this is not an attempt to solve the problems arising from the political question doctrine. MR. CONCEPCION. It definitely does not eliminate the fact that truly political questions are beyond the pale of judicial power.104 (Emphasis supplied) From the foregoing record of the proceedings of the 1986 Constitutional Commission, it is clear that judicial power is not only a power; it is also a duty, a duty which cannot be abdicated by the mere specter of this creature called the political question doctrine. Chief Justice Concepcion hastened to clarify, however, that Section 1, Article VIII was not intended to do away with "truly political questions." From this clarification it is gathered that there are two species of political questions: (1) "truly political questions" and (2) those which "are not truly political questions." Truly political questions are thus beyond judicial review, the reason for respect of the doctrine of separation of powers to be maintained. On the other hand, by virtue of Section 1, Article VIII of the Constitution, courts can review questions which are not truly political in nature.

As pointed out by amicus curiae former dean Pacifico Agabin of the UP College of Law, this Court has in fact in a number of cases taken jurisdiction over questions which are not truly political following the effectivity of the present Constitution. In Marcos v. Manglapus,105 this Court, speaking through Madame Justice Irene Cortes, held: The present Constitution limits resort to the political question doctrine and broadens the scope of judicial inquiry into areas which the Court, under previous constitutions, would have normally left to the political departments to decide.106 x x x In Bengzon v. Senate Blue Ribbon Committee,107 through Justice Teodoro Padilla, this Court declared: The "allocation of constitutional boundaries" is a task that this Court must perform under the Constitution. Moreover, as held in a recent case, "(t)he political question doctrine neither interposes an obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot abdicate that obligation mandated by the 1987 Constitution, although said provision by no means does away with the applicability of the principle in appropriate cases."108 (Emphasis and underscoring supplied) And in Daza v. Singson,109 speaking through Justice Isagani Cruz, this Court ruled: In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even if we were to assume that the issue presented before us was political in nature, we would still not be precluded from resolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political question.110 x x x (Emphasis and underscoring supplied.) Section 1, Article VIII, of the Court does not define what are justiciable political questions and non-justiciable political questions, however. Identification of these two species of political questions may be problematic. There has been no clear standard. The American case of Baker v. Carr111 attempts to provide some: x x x Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for questioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.112 (Underscoring supplied) Of these standards, the more reliable have been the first three: (1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; (2) the lack of

judicially discoverable and manageable standards for resolving it; and (3) the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion. These standards are not separate and distinct concepts but are interrelated to each in that the presence of one strengthens the conclusion that the others are also present. The problem in applying the foregoing standards is that the American concept of judicial review is radically different from our current concept, for Section 1, Article VIII of the Constitution provides our courts with far less discretion in determining whether they should pass upon a constitutional issue. In our jurisdiction, the determination of a truly political question from a non-justiciable political question lies in the answer to the question of whether there are constitutionally imposed limits on powers or functions conferred upon political bodies. If there are, then our courts are duty-bound to examine whether the branch or instrumentality of the government properly acted within such limits. This Court shall thus now apply this standard to the present controversy. These petitions raise five substantial issues: I. Whether the offenses alleged in the Second impeachment complaint constitute valid impeachable offenses under the Constitution. II. Whether the second impeachment complaint was filed in accordance with Section 3(4), Article XI of the Constitution. III. Whether the legislative inquiry by the House Committee on Justice into the Judicial Development Fund is an unconstitutional infringement of the constitutionally mandated fiscal autonomy of the judiciary. IV. Whether Sections 15 and 16 of Rule V of the Rules on Impeachment adopted by the 12th Congress are unconstitutional for violating the provisions of Section 3, Article XI of the Constitution. V. Whether the second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution. The first issue goes into the merits of the second impeachment complaint over which this Court has no jurisdiction. More importantly, any discussion of this issue would require this Court to make a determination of what constitutes an impeachable offense. Such a determination is a purely political question which the Constitution has left to the sound discretion of the legislation. Such an intent is clear from the deliberations of the Constitutional Commission.113 Although Section 2 of Article XI of the Constitution enumerates six grounds for impeachment, two of these, namely, other high crimes and betrayal of public trust, elude a precise definition. In fact, an examination of the records of the 1986 Constitutional Commission shows that the framers could find no better way to approximate the boundaries of betrayal of public trust and

other high crimes than by alluding to both positive and negative examples of both, without arriving at their clear cut definition or even a standard therefor.114 Clearly, the issue calls upon this court to decide a non-justiciable political question which is beyond the scope of its judicial power under Section 1, Article VIII. Lis Mota It is a well-settled maxim of adjudication that an issue assailing the constitutionality of a governmental act should be avoided whenever possible. Thus, in the case of Sotto v. Commission on Elections,115 this Court held: x x x It is a well-established rule that a court should not pass upon a constitutional question and decide a law to be unconstitutional or invalid, unless such question is raised by the parties and that when it is raised, if the record also presents some other ground upon which the court may rest its judgment, that course will be adopted and the constitutional question will be left for consideration until a case arises in which a decision upon such question will be unavoidable.116 [Emphasis and underscoring supplied] The same principle was applied in Luz Farms v. Secretary of Agrarian Reform,117 where this Court invalidated Sections 13 and 32 of Republic Act No. 6657 for being confiscatory and violative of due process, to wit: It has been established that this Court will assume jurisdiction over a constitutional question only if it is shown that the essential requisites of a judicial inquiry into such a question are first satisfied. Thus, there must be an actual case or controversy involving a conflict of legal rights susceptible of judicial determination, the constitutional question must have been opportunely raised by the proper party, and the resolution of the question is unavoidably necessary to the decision of the case itself.118 [Emphasis supplied] Succinctly put, courts will not touch the issue of constitutionality unless it is truly unavoidable and is the very lis mota or crux of the controversy. As noted earlier, the instant consolidated petitions, while all seeking the invalidity of the second impeachment complaint, collectively raise several constitutional issues upon which the outcome of this controversy could possibly be made to rest. In determining whether one, some or all of the remaining substantial issues should be passed upon, this Court is guided by the related cannon of adjudication that "the court should not form a rule of constitutional law broader than is required by the precise facts to which it is applied."119 In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among other reasons, the second impeachment complaint is invalid since it directly resulted from a Resolution120 calling for a legislative inquiry into the JDF, which Resolution and legislative inquiry petitioners claim to likewise be unconstitutional for being: (a) a violation of the rules and jurisprudence on investigations in aid of legislation; (b) an open breach of the doctrine of separation of powers; (c)

a violation of the constitutionally mandated fiscal autonomy of the judiciary; and (d) an assault on the independence of the judiciary.121 Without going into the merits of petitioners Alfonso, et. al.'s claims, it is the studied opinion of this Court that the issue of the constitutionality of the said Resolution and resulting legislative inquiry is too far removed from the issue of the validity of the second impeachment complaint. Moreover, the resolution of said issue would, in the Court's opinion, require it to form a rule of constitutional law touching on the separate and distinct matter of legislative inquiries in general, which would thus be broader than is required by the facts of these consolidated cases. This opinion is further strengthened by the fact that said petitioners have raised other grounds in support of their petition which would not be adversely affected by the Court's ruling. En passant, this Court notes that a standard for the conduct of legislative inquiries has already been enunciated by this Court in Bengzon, Jr. v. Senate Blue Ribbon Commttee,122 viz: The 1987 Constitution expressly recognizes the power of both houses of Congress to conduct inquiries in aid of legislation. Thus, Section 21, Article VI thereof provides: The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. The power of both houses of Congress to conduct inquiries in aid of legislation is not, therefore absolute or unlimited. Its exercise is circumscribed by the afore-quoted provision of the Constitution. Thus, as provided therein, the investigation must be "in aid of legislation in accordance with its duly published rules of procedure" and that "the rights of persons appearing in or affected by such inquiries shall be respected." It follows then that the right rights of persons under the Bill of Rights must be respected, including the right to due process and the right not be compelled to testify against one's self.123 In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino Quadra, while joining the original petition of petitioners Candelaria, et. al., introduce the new argument that since the second impeachment complaint was verified and filed only by Representatives Gilberto Teodoro, Jr. and Felix William Fuentebella, the same does not fall under the provisions of Section 3 (4), Article XI of the Constitution which reads: Section 3(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. They assert that while at least 81 members of the House of Representatives signed a Resolution of Endorsement/Impeachment, the same did not satisfy the requisites for the application of the afore-mentioned section in that the "verified complaint or resolution of impeachment" was not filed "by at least one-third of all the Members of the House." With the exception of Representatives Teodoro and Fuentebella, the signatories to said Resolution are alleged to have

verified the same merely as a "Resolution of Endorsement." Intervenors point to the "Verification" of the Resolution of Endorsement which states that: "We are the proponents/sponsors of the Resolution of Endorsement of the abovementioned Complaint of Representatives Gilberto Teodoro and Felix William B. Fuentebella x x x"124 Intervenors Macalintal and Quadra further claim that what the Constitution requires in order for said second impeachment complaint to automatically become the Articles of Impeachment and for trial in the Senate to begin "forthwith," is that the verified complaint be "filed," not merely endorsed, by at least one-third of the Members of the House of Representatives. Not having complied with this requirement, they concede that the second impeachment complaint should have been calendared and referred to the House Committee on Justice under Section 3(2), Article XI of the Constitution, viz: Section 3(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. Intervenors' foregoing position is echoed by Justice Maambong who opined that for Section 3 (4), Article XI of the Constitution to apply, there should be 76 or more representatives who signed and verified the second impeachment complaint as complainants, signed and verified the signatories to a resolution of impeachment. Justice Maambong likewise asserted that the Resolution of Endorsement/Impeachment signed by at least one-third of the members of the House of Representatives as endorsers is not the resolution of impeachment contemplated by the Constitution, such resolution of endorsement being necessary only from at least one Member whenever a citizen files a verified impeachment complaint. While the foregoing issue, as argued by intervenors Macalintal and Quadra, does indeed limit the scope of the constitutional issues to the provisions on impeachment, more compelling considerations militate against its adoption as the lis mota or crux of the present controversy. Chief among this is the fact that only Attorneys Macalintal and Quadra, intervenors in G.R. No. 160262, have raised this issue as a ground for invalidating the second impeachment complaint. Thus, to adopt this additional ground as the basis for deciding the instant consolidated petitions would not only render for naught the efforts of the original petitioners in G.R. No. 160262, but the efforts presented by the other petitioners as well. Again, the decision to discard the resolution of this issue as unnecessary for the determination of the instant cases is made easier by the fact that said intervenors Macalintal and Quadra have joined in the petition of Candelaria, et. al., adopting the latter's arguments and issues as their own. Consequently, they are not unduly prejudiced by this Court's decision.

In sum, this Court holds that the two remaining issues, inextricably linked as they are, constitute the very lis mota of the instant controversy: (1) whether Sections 15 and 16 of Rule V of the House Impeachment Rules adopted by the 12th Congress are unconstitutional for violating the provisions of Section 3, Article XI of the Constitution; and (2) whether, as a result thereof, the second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution. Judicial Restraint Senator Pimentel urges this Court to exercise judicial restraint on the ground that the Senate, sitting as an impeachment court, has the sole power to try and decide all cases of impeachment. Again, this Court reiterates that the power of judicial review includes the power of review over justiciable issues in impeachment proceedings. On the other hand, respondents Speaker De Venecia et. al. argue that "[t]here is a moral compulsion for the Court to not assume jurisdiction over the impeachment because all the Members thereof are subject to impeachment."125 But this argument is very much like saying the Legislature has a moral compulsion not to pass laws with penalty clauses because Members of the House of Representatives are subject to them. The exercise of judicial restraint over justiciable issues is not an option before this Court. Adjudication may not be declined, because this Court is not legally disqualified. Nor can jurisdiction be renounced as there is no other tribunal to which the controversy may be referred."126 Otherwise, this Court would be shirking from its duty vested under Art. VIII, Sec. 1(2) of the Constitution. More than being clothed with authority thus, this Court is duty-bound to take cognizance of the instant petitions.127 In the august words of amicus curiae Father Bernas, "jurisdiction is not just a power; it is a solemn duty which may not be renounced. To renounce it, even if it is vexatious, would be a dereliction of duty." Even in cases where it is an interested party, the Court under our system of government cannot inhibit itself and must rule upon the challenge because no other office has the authority to do so.128 On the occasion that this Court had been an interested party to the controversy before it, it has acted upon the matter "not with officiousness but in the discharge of an unavoidable duty and, as always, with detachment and fairness."129 After all, "by [his] appointment to the office, the public has laid on [a member of the judiciary] their confidence that [he] is mentally and morally fit to pass upon the merits of their varied contentions. For this reason, they expect [him] to be fearless in [his] pursuit to render justice, to be unafraid to displease any person, interest or power and to be equipped with a moral fiber strong enough to resist the temptations lurking in [his] office."130 The duty to exercise the power of adjudication regardless of interest had already been settled in the case of Abbas v. Senate Electoral Tribunal.131 In that case, the petitioners filed with the respondent Senate Electoral Tribunal a Motion for Disqualification or Inhibition of the SenatorsMembers thereof from the hearing and resolution of SET Case No. 002-87 on the ground that all of them were interested parties to said case as respondents therein. This would have reduced the Tribunal's membership to only its three Justices-Members whose disqualification was not sought, leaving them to decide the matter. This Court held:

Where, as here, a situation is created which precludes the substitution of any Senator sitting in the Tribunal by any of his other colleagues in the Senate without inviting the same objections to the substitute's competence, the proposed mass disqualification, if sanctioned and ordered, would leave the Tribunal no alternative but to abandon a duty that no other court or body can perform, but which it cannot lawfully discharge if shorn of the participation of its entire membership of Senators. To our mind, this is the overriding consideration that the Tribunal be not prevented from discharging a duty which it alone has the power to perform, the performance of which is in the highest public interest as evidenced by its being expressly imposed by no less than the fundamental law. It is aptly noted in the first of the questioned Resolutions that the framers of the Constitution could not have been unaware of the possibility of an election contest that would involve all Senatorselect, six of whom would inevitably have to sit in judgment thereon. Indeed, such possibility might surface again in the wake of the 1992 elections when once more, but for the last time, all 24 seats in the Senate will be at stake. Yet the Constitution provides no scheme or mode for settling such unusual situations or for the substitution of Senators designated to the Tribunal whose disqualification may be sought. Litigants in such situations must simply place their trust and hopes of vindication in the fairness and sense of justice of the Members of the Tribunal. Justices and Senators, singly and collectively. Let us not be misunderstood as saying that no Senator-Member of the Senate Electoral Tribunal may inhibit or disqualify himself from sitting in judgment on any case before said Tribunal. Every Member of the Tribunal may, as his conscience dictates, refrain from participating in the resolution of a case where he sincerely feels that his personal interests or biases would stand in the way of an objective and impartial judgment. What we are merely saying is that in the light of the Constitution, the Senate Electoral Tribunal cannot legally function as such, absent its entire membership of Senators and that no amendment of its Rules can confer on the three Justices-Members alone the power of valid adjudication of a senatorial election contest. More recently in the case of Estrada v. Desierto,132 it was held that: Moreover, to disqualify any of the members of the Court, particularly a majority of them, is nothing short of pro tanto depriving the Court itself of its jurisdiction as established by the fundamental law. Disqualification of a judge is a deprivation of his judicial power. And if that judge is the one designated by the Constitution to exercise the jurisdiction of his court, as is the case with the Justices of this Court, the deprivation of his or their judicial power is equivalent to the deprivation of the judicial power of the court itself. It affects the very heart of judicial independence. The proposed mass disqualification, if sanctioned and ordered, would leave the Court no alternative but to abandon a duty which it cannot lawfully discharge if shorn of the participation of its entire membership of Justices.133 (Italics in the original)

Besides, there are specific safeguards already laid down by the Court when it exercises its power of judicial review. In Demetria v. Alba,134 this Court, through Justice Marcelo Fernan cited the "seven pillars" of limitations of the power of judicial review, enunciated by US Supreme Court Justice Brandeis in Ashwander v. TVA135 as follows: 1. The Court will not pass upon the constitutionality of legislation in a friendly, nonadversary proceeding, declining because to decide such questions 'is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.' 2. The Court will not 'anticipate a question of constitutional law in advance of the necessity of deciding it.' . . . 'It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.' 3. The Court will not 'formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.' 4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. Appeals from the highest court of a state challenging its decision of a question under the Federal Constitution are frequently dismissed because the judgment can be sustained on an independent state ground. 5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right. Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained . . . In Fairchild v. Hughes, the Court affirmed the dismissal of a suit brought by a citizen who sought to have the Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon, the challenge of the federal Maternity Act was not entertained although made by the Commonwealth on behalf of all its citizens. 6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits. 7. When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first

ascertain whether a construction of the statute is fairly possible by which the question may be avoided (citations omitted). The foregoing "pillars" of limitation of judicial review, summarized in Ashwander v. TVA from different decisions of the United States Supreme Court, can be encapsulated into the following categories: 1. that there be absolute necessity of deciding a case 2. that rules of constitutional law shall be formulated only as required by the facts of the case 3. that judgment may not be sustained on some other ground 4. that there be actual injury sustained by the party by reason of the operation of the statute 5. that the parties are not in estoppel 6. that the Court upholds the presumption of constitutionality. As stated previously, parallel guidelines have been adopted by this Court in the exercise of judicial review: 1. actual case or controversy calling for the exercise of judicial power 2. the person challenging the act must have "standing" to challenge; he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement 3. the question of constitutionality must be raised at the earliest possible opportunity 4. the issue of constitutionality must be the very lis mota of the case.136 Respondents Speaker de Venecia, et. al. raise another argument for judicial restraint the possibility that "judicial review of impeachments might also lead to embarrassing conflicts between the Congress and the [J]udiciary." They stress the need to avoid the appearance of impropriety or conflicts of interest in judicial hearings, and the scenario that it would be confusing and humiliating and risk serious political instability at home and abroad if the judiciary countermanded the vote of Congress to remove an impeachable official.137 Intervenor Soriano echoes this argument by alleging that failure of this Court to enforce its Resolution against Congress would result in the diminution of its judicial authority and erode public confidence and faith in the judiciary. Such an argument, however, is specious, to say the least. As correctly stated by the Solicitor General, the possibility of the occurrence of a constitutional crisis is not a reason for this Court to

refrain from upholding the Constitution in all impeachment cases. Justices cannot abandon their constitutional duties just because their action may start, if not precipitate, a crisis. Justice Feliciano warned against the dangers when this Court refuses to act. x x x Frequently, the fight over a controversial legislative or executive act is not regarded as settled until the Supreme Court has passed upon the constitutionality of the act involved, the judgment has not only juridical effects but also political consequences. Those political consequences may follow even where the Court fails to grant the petitioner's prayer to nullify an act for lack of the necessary number of votes. Frequently, failure to act explicitly, one way or the other, itself constitutes a decision for the respondent and validation, or at least quasi-validation, follows." 138 Thus, in Javellana v. Executive Secretary139 where this Court was split and "in the end there were not enough votes either to grant the petitions, or to sustain respondent's claims,"140 the preexisting constitutional order was disrupted which paved the way for the establishment of the martial law regime. Such an argument by respondents and intervenor also presumes that the coordinate branches of the government would behave in a lawless manner and not do their duty under the law to uphold the Constitution and obey the laws of the land. Yet there is no reason to believe that any of the branches of government will behave in a precipitate manner and risk social upheaval, violence, chaos and anarchy by encouraging disrespect for the fundamental law of the land. Substituting the word public officers for judges, this Court is well guided by the doctrine in People v. Veneracion, to wit:141 Obedience to the rule of law forms the bedrock of our system of justice. If [public officers], under the guise of religious or political beliefs were allowed to roam unrestricted beyond boundaries within which they are required by law to exercise the duties of their office, then law becomes meaningless. A government of laws, not of men excludes the exercise of broad discretionary powers by those acting under its authority. Under this system, [public officers] are guided by the Rule of Law, and ought "to protect and enforce it without fear or favor," resist encroachments by governments, political parties, or even the interference of their own personal beliefs.142 Constitutionality of the Rules of Procedure for Impeachment Proceedings adopted by the 12th Congress Respondent House of Representatives, through Speaker De Venecia, argues that Sections 16 and 17 of Rule V of the House Impeachment Rules do not violate Section 3 (5) of Article XI of our present Constitution, contending that the term "initiate" does not mean "to file;" that Section 3 (1) is clear in that it is the House of Representatives, as a collective body, which has the exclusive power to initiate all cases of impeachment; that initiate could not possibly mean "to file" because filing can, as Section 3 (2), Article XI of the Constitution provides, only be

accomplished in 3 ways, to wit: (1) by a verified complaint for impeachment by any member of the House of Representatives; or (2) by any citizen upon a resolution of endorsement by any member; or (3) by at least 1/3 of all the members of the House. Respondent House of Representatives concludes that the one year bar prohibiting the initiation of impeachment proceedings against the same officials could not have been violated as the impeachment complaint against Chief Justice Davide and seven Associate Justices had not been initiated as the House of Representatives, acting as the collective body, has yet to act on it. The resolution of this issue thus hinges on the interpretation of the term "initiate." Resort to statutory construction is, therefore, in order. That the sponsor of the provision of Section 3(5) of the Constitution, Commissioner Florenz Regalado, who eventually became an Associate Justice of this Court, agreed on the meaning of "initiate" as "to file," as proffered and explained by Constitutional Commissioner Maambong during the Constitutional Commission proceedings, which he (Commissioner Regalado) as amicus curiae affirmed during the oral arguments on the instant petitions held on November 5, 2003 at which he added that the act of "initiating" included the act of taking initial action on the complaint, dissipates any doubt that indeed the word "initiate" as it twice appears in Article XI (3) and (5) of the Constitution means to file the complaint and take initial action on it. "Initiate" of course is understood by ordinary men to mean, as dictionaries do, to begin, to commence, or set going. As Webster's Third New International Dictionary of the English Language concisely puts it, it means "to perform or facilitate the first action," which jibes with Justice Regalado's position, and that of Father Bernas, who elucidated during the oral arguments of the instant petitions on November 5, 2003 in this wise: Briefly then, an impeachment proceeding is not a single act. It is a comlexus of acts consisting of a beginning, a middle and an end. The end is the transmittal of the articles of impeachment to the Senate. The middle consists of those deliberative moments leading to the formulation of the articles of impeachment. The beginning or the initiation is the filing of the complaint and its referral to the Committee on Justice. Finally, it should be noted that the House Rule relied upon by Representatives Cojuangco and Fuentebella says that impeachment is "deemed initiated" when the Justice Committee votes in favor of impeachment or when the House reverses a contrary vote of the Committee. Note that the Rule does not say "impeachment proceedings" are initiated but rather are "deemed initiated." The language is recognition that initiation happened earlier, but by legal fiction there is an attempt to postpone it to a time after actual initiation. (Emphasis and underscoring supplied) As stated earlier, one of the means of interpreting the Constitution is looking into the intent of the law. Fortunately, the intent of the framers of the 1987 Constitution can be pried from its records:

MR. MAAMBONG. With reference to Section 3, regarding the procedure and the substantive provisions on impeachment, I understand there have been many proposals and, I think, these would need some time for Committee action. However, I would just like to indicate that I submitted to the Committee a resolution on impeachment proceedings, copies of which have been furnished the Members of this body. This is borne out of my experience as a member of the Committee on Justice, Human Rights and Good Government which took charge of the last impeachment resolution filed before the First Batasang Pambansa. For the information of the Committee, the resolution covers several steps in the impeachment proceedings starting with initiation, action of the Speaker committee action, calendaring of report, voting on the report, transmittal referral to the Senate, trial and judgment by the Senate. xxx MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the approval of the amendment submitted by Commissioner Regalado, but I will just make of record my thinking that we do not really initiate the filing of the Articles of Impeachment on the floor. The procedure, as I have pointed out earlier, was that the initiation starts with the filing of the complaint. And what is actually done on the floor is that the committee resolution containing the Articles of Impeachment is the one approved by the body. As the phraseology now runs, which may be corrected by the Committee on Style, it appears that the initiation starts on the floor. If we only have time, I could cite examples in the case of the impeachment proceedings of President Richard Nixon wherein the Committee on the Judiciary submitted the recommendation, the resolution, and the Articles of Impeachment to the body, and it was the body who approved the resolution. It is not the body which initiates it. It only approves or disapproves the resolution. So, on that score, probably the Committee on Style could help in rearranging these words because we have to be very technical about this. I have been bringing with me The Rules of the House of Representatives of the U.S. Congress. The Senate Rules are with me. The proceedings on the case of Richard Nixon are with me. I have submitted my proposal, but the Committee has already decided. Nevertheless, I just want to indicate this on record. xxx MR. MAAMBONG. I would just like to move for a reconsideration of the approval of Section 3 (3). My reconsideration will not at all affect the substance, but it is only in keeping with the exact formulation of the Rules of the House of Representatives of the United States regarding impeachment. I am proposing, Madam President, without doing damage to any of this provision, that on page 2, Section 3 (3), from lines 17 to 18, we delete the words which read: "to initiate impeachment proceedings" and the comma (,) and insert on line 19 after the word

"resolution" the phrase WITH THE ARTICLES, and then capitalize the letter "i" in "impeachment" and replace the word "by" with OF, so that the whole section will now read: "A vote of at least one-third of all the Members of the House shall be necessary either to affirm a resolution WITH THE ARTICLES of Impeachment OF the Committee or to override its contrary resolution. The vote of each Member shall be recorded." I already mentioned earlier yesterday that the initiation, as far as the House of Representatives of the United States is concerned, really starts from the filing of the verified complaint and every resolution to impeach always carries with it the Articles of Impeachment. As a matter of fact, the words "Articles of Impeachment" are mentioned on line 25 in the case of the direct filing of a verified compliant of one-third of all the Members of the House. I will mention again, Madam President, that my amendment will not vary the substance in any way. It is only in keeping with the uniform procedure of the House of Representatives of the United States Congress. Thank you, Madam President.143 (Italics in the original; emphasis and udnerscoring supplied) This amendment proposed by Commissioner Maambong was clarified and accepted by the Committee on the Accountability of Public Officers.144 It is thus clear that the framers intended "initiation" to start with the filing of the complaint. In his amicus curiae brief, Commissioner Maambong explained that "the obvious reason in deleting the phrase "to initiate impeachment proceedings" as contained in the text of the provision of Section 3 (3) was to settle and make it understood once and for all that the initiation of impeachment proceedings starts with the filing of the complaint, and the vote of one-third of the House in a resolution of impeachment does not initiate the impeachment proceedings which was already initiated by the filing of a verified complaint under Section 3, paragraph (2), Article XI of the Constitution."145 Amicus curiae Constitutional Commissioner Regalado is of the same view as is Father Bernas, who was also a member of the 1986 Constitutional Commission, that the word "initiate" as used in Article XI, Section 3(5) means to file, both adding, however, that the filing must be accompanied by an action to set the complaint moving. During the oral arguments before this Court, Father Bernas clarified that the word "initiate," appearing in the constitutional provision on impeachment, viz: Section 3 (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment. xxx (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year, (Emphasis supplied) refers to two objects, "impeachment case" and "impeachment proceeding."

Father Bernas explains that in these two provisions, the common verb is "to initiate." The object in the first sentence is "impeachment case." The object in the second sentence is "impeachment proceeding." Following the principle of reddendo singuala sinuilis, the term "cases" must be distinguished from the term "proceedings." An impeachment case is the legal controversy that must be decided by the Senate. Above-quoted first provision provides that the House, by a vote of one-third of all its members, can bring a case to the Senate. It is in that sense that the House has "exclusive power" to initiate all cases of impeachment. No other body can do it. However, before a decision is made to initiate a case in the Senate, a "proceeding" must be followed to arrive at a conclusion. A proceeding must be "initiated." To initiate, which comes from the Latin word initium, means to begin. On the other hand, proceeding is a progressive noun. It has a beginning, a middle, and an end. It takes place not in the Senate but in the House and consists of several steps: (1) there is the filing of a verified complaint either by a Member of the House of Representatives or by a private citizen endorsed by a Member of the House of the Representatives; (2) there is the processing of this complaint by the proper Committee which may either reject the complaint or uphold it; (3) whether the resolution of the Committee rejects or upholds the complaint, the resolution must be forwarded to the House for further processing; and (4) there is the processing of the same complaint by the House of Representatives which either affirms a favorable resolution of the Committee or overrides a contrary resolution by a vote of one-third of all the members. If at least one third of all the Members upholds the complaint, Articles of Impeachment are prepared and transmitted to the Senate. It is at this point that the House "initiates an impeachment case." It is at this point that an impeachable public official is successfully impeached. That is, he or she is successfully charged with an impeachment "case" before the Senate as impeachment court. Father Bernas further explains: The "impeachment proceeding" is not initiated when the complaint is transmitted to the Senate for trial because that is the end of the House proceeding and the beginning of another proceeding, namely the trial. Neither is the "impeachment proceeding" initiated when the House deliberates on the resolution passed on to it by the Committee, because something prior to that has already been done. The action of the House is already a further step in the proceeding, not its initiation or beginning. Rather, the proceeding is initiated or begins, when a verified complaint is filed and referred to the Committee on Justice for action. This is the initiating step which triggers the series of steps that follow. The framers of the Constitution also understood initiation in its ordinary meaning. Thus when a proposal reached the floor proposing that "A vote of at least one-third of all the Members of the House shall be necessary to initiate impeachment proceedings," this was met by a proposal to delete the line on the ground that the vote of the House does not initiate impeachment proceeding but rather the filing of a complaint does.146 Thus the line was deleted and is not found in the present Constitution. Father Bernas concludes that when Section 3 (5) says, "No impeachment proceeding shall be initiated against the same official more than once within a period of one year," it means that no second verified complaint may be accepted and referred to the Committee on Justice for action. By his explanation, this interpretation is founded on the common understanding of the meaning of "to initiate" which means to begin. He reminds that the Constitution is ratified by the people, both ordinary and sophisticated, as they understand it; and that ordinary people read ordinary

meaning into ordinary words and not abstruse meaning, they ratify words as they understand it and not as sophisticated lawyers confuse it. To the argument that only the House of Representatives as a body can initiate impeachment proceedings because Section 3 (1) says "The House of Representatives shall have the exclusive power to initiate all cases of impeachment," This is a misreading of said provision and is contrary to the principle of reddendo singula singulis by equating "impeachment cases" with "impeachment proceeding." From the records of the Constitutional Commission, to the amicus curiae briefs of two former Constitutional Commissioners, it is without a doubt that the term "to initiate" refers to the filing of the impeachment complaint coupled with Congress' taking initial action of said complaint. Having concluded that the initiation takes place by the act of filing and referral or endorsement of the impeachment complaint to the House Committee on Justice or, by the filing by at least one-third of the members of the House of Representatives with the Secretary General of the House, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated, another impeachment complaint may not be filed against the same official within a one year period. Under Sections 16 and 17 of Rule V of the House Impeachment Rules, impeachment proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice that the verified complaint and/or resolution is sufficient in substance, or (2) once the House itself affirms or overturns the finding of the Committee on Justice that the verified complaint and/or resolution is not sufficient in substance or (3) by the filing or endorsement before the SecretaryGeneral of the House of Representatives of a verified complaint or a resolution of impeachment by at least 1/3 of the members of the House. These rules clearly contravene Section 3 (5) of Article XI since the rules give the term "initiate" a meaning different meaning from filing and referral. In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could not use contemporaneous construction as an aid in the interpretation of Sec.3 (5) of Article XI, citing Vera v. Avelino147 wherein this Court stated that "their personal opinions (referring to Justices who were delegates to the Constitution Convention) on the matter at issue expressed during this Court's our deliberations stand on a different footing from the properly recorded utterances of debates and proceedings." Further citing said case, he states that this Court likened the former members of the Constitutional Convention to actors who are so absorbed in their emotional roles that intelligent spectators may know more about the real meaning because of the latter's balanced perspectives and disinterestedness.148 Justice Gutierrez's statements have no application in the present petitions. There are at present only two members of this Court who participated in the 1986 Constitutional Commission Chief Justice Davide and Justice Adolf Azcuna. Chief Justice Davide has not taken part in these proceedings for obvious reasons. Moreover, this Court has not simply relied on the personal opinions now given by members of the Constitutional Commission, but has examined the records of the deliberations and proceedings thereof.

Respondent House of Representatives counters that under Section 3 (8) of Article XI, it is clear and unequivocal that it and only it has the power to make and interpret its rules governing impeachment. Its argument is premised on the assumption that Congress has absolute power to promulgate its rules. This assumption, however, is misplaced. Section 3 (8) of Article XI provides that "The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section." Clearly, its power to promulgate its rules on impeachment is limited by the phrase "to effectively carry out the purpose of this section." Hence, these rules cannot contravene the very purpose of the Constitution which said rules were intended to effectively carry out. Moreover, Section 3 of Article XI clearly provides for other specific limitations on its power to make rules, viz: Section 3. (1) x x x (2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. (3) A vote of at least one-third of all the Members of the House shall be necessary to either affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. (4) In case the verified complaint or resolution of impeachment is filed by at least onethird of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year. It is basic that all rules must not contravene the Constitution which is the fundamental law. If as alleged Congress had absolute rule making power, then it would by necessary implication have the power to alter or amend the meaning of the Constitution without need of referendum. In Osmea v. Pendatun,149 this Court held that it is within the province of either House of Congress to interpret its rules and that it was the best judge of what constituted "disorderly behavior" of its members. However, in Paceta v. Secretary of the Commission on Appointments,150 Justice (later Chief Justice) Enrique Fernando, speaking for this Court and quoting Justice Brandeis in United States v. Smith,151 declared that where the construction to be given to a rule affects persons other than members of the Legislature, the question becomes judicial in nature. In Arroyo v. De Venecia,152 quoting United States v. Ballin, Joseph & Co.,153 Justice Vicente Mendoza, speaking for this Court, held that while the Constitution empowers

each house to determine its rules of proceedings, it may not by its rules ignore constitutional restraints or violate fundamental rights, and further that there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. It is only within these limitations that all matters of method are open to the determination of the Legislature. In the same case of Arroyo v. De Venecia, Justice Reynato S. Puno, in his Concurring and Dissenting Opinion, was even more emphatic as he stressed that in the Philippine setting there is even more reason for courts to inquire into the validity of the Rules of Congress, viz: With due respect, I do not agree that the issues posed by the petitioner are nonjusticiable. Nor do I agree that we will trivialize the principle of separation of power if we assume jurisdiction over he case at bar. Even in the United States, the principle of separation of power is no longer an impregnable impediment against the interposition of judicial power on cases involving breach of rules of procedure by legislators. Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1) as a window to view the issues before the Court. It is in Ballin where the US Supreme Court first defined the boundaries of the power of the judiciary to review congressional rules. It held: "x x x "The Constitution, in the same section, provides, that each house may determine the rules of its proceedings." It appears that in pursuance of this authority the House had, prior to that day, passed this as one of its rules: Rule XV 3. On the demand of any member, or at the suggestion of the Speaker, the names of members sufficient to make a quorum in the hall of the House who do not vote shall be noted by the clerk and recorded in the journal, and reported to the Speaker with the names of the members voting, and be counted and announced in determining the presence of a quorum to do business. (House Journal, 230, Feb. 14, 1890) The action taken was in direct compliance with this rule. The question, therefore, is as to the validity of this rule, and not what methods the Speaker may of his own motion resort to for determining the presence of a quorum, nor what matters the Speaker or clerk may of their own volition place upon the journal. Neither do the advantages or disadvantages, the wisdom or folly, of such a rule present any matters for judicial consideration. With the courts the question is only one of power. The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceedings established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the House, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for

a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the House, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal." Ballin, clearly confirmed the jurisdiction of courts to pass upon the validity of congressional rules, i.e, whether they are constitutional. Rule XV was examined by the Court and it was found to satisfy the test: (1) that it did not ignore any constitutional restraint; (2) it did not violate any fundamental right; and (3) its method had a reasonable relationship with the result sought to be attained. By examining Rule XV, the Court did not allow its jurisdiction to be defeated by the mere invocation of the principle of separation of powers.154 xxx In the Philippine setting, there is a more compelling reason for courts to categorically reject the political question defense when its interposition will cover up abuse of power. For section 1, Article VIII of our Constitution was intentionally cobbled to empower courts "x x x to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." This power is new and was not granted to our courts in the 1935 and 1972 Constitutions. It was not also xeroxed from the US Constitution or any foreign state constitution. The CONCOM granted this enormous power to our courts in view of our experience under martial law where abusive exercises of state power were shielded from judicial scrutiny by the misuse of the political question doctrine. Led by the eminent former Chief Justice Roberto Concepcion, the CONCOM expanded and sharpened the checking powers of the judiciary vis--vis the Executive and the Legislative departments of government.155 xxx The Constitution cannot be any clearer. What it granted to this Court is not a mere power which it can decline to exercise. Precisely to deter this disinclination, the Constitution imposed it as a duty of this Court to strike down any act of a branch or instrumentality of government or any of its officials done with grave abuse of discretion amounting to lack or excess of jurisdiction. Rightly or wrongly, the Constitution has elongated the checking powers of this Court against the other branches of government despite their more democratic character, the President and the legislators being elected by the people.156 xxx The provision defining judicial power as including the 'duty of the courts of justice. . . to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government' constitutes the capstone of the efforts of the Constitutional Commission to upgrade the powers of this court vis--vis the other branches of government. This provision was

dictated by our experience under martial law which taught us that a stronger and more independent judiciary is needed to abort abuses in government. x x x xxx In sum, I submit that in imposing to this Court the duty to annul acts of government committed with grave abuse of discretion, the new Constitution transformed this Court from passivity to activism. This transformation, dictated by our distinct experience as nation, is not merely evolutionary but revolutionary. Under the 1935 and the 1973 Constitutions, this Court approached constitutional violations by initially determining what it cannot do; under the 1987 Constitution, there is a shift in stress this Court is mandated to approach constitutional violations not by finding out what it should not do but what it must do. The Court must discharge this solemn duty by not resuscitating a past that petrifies the present. I urge my brethren in the Court to give due and serious consideration to this new constitutional provision as the case at bar once more calls us to define the parameters of our power to review violations of the rules of the House. We will not be true to our trust as the last bulwark against government abuses if we refuse to exercise this new power or if we wield it with timidity. To be sure, it is this exceeding timidity to unsheathe the judicial sword that has increasingly emboldened other branches of government to denigrate, if not defy, orders of our courts. In Tolentino, I endorsed the view of former Senator Salonga that this novel provision stretching the latitude of judicial power is distinctly Filipino and its interpretation should not be depreciated by undue reliance on inapplicable foreign jurisprudence. In resolving the case at bar, the lessons of our own history should provide us the light and not the experience of foreigners.157 (Italics in the original emphasis and underscoring supplied) Thus, the ruling in Osmena v. Pendatun is not applicable to the instant petitions. Here, the third parties alleging the violation of private rights and the Constitution are involved. Neither may respondent House of Representatives' rely on Nixon v. US158 as basis for arguing that this Court may not decide on the constitutionality of Sections 16 and 17 of the House Impeachment Rules. As already observed, the U.S. Federal Constitution simply provides that "the House of Representatives shall have the sole power of impeachment." It adds nothing more. It gives no clue whatsoever as to how this "sole power" is to be exercised. No limitation whatsoever is given. Thus, the US Supreme Court concluded that there was a textually demonstrable constitutional commitment of a constitutional power to the House of Representatives. This reasoning does not hold with regard to impeachment power of the Philippine House of Representatives since our Constitution, as earlier enumerated, furnishes several provisions articulating how that "exclusive power" is to be exercised. The provisions of Sections 16 and 17 of Rule V of the House Impeachment Rules which state that impeachment proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice that the verified complaint and/or resolution is sufficient in substance, or (2) once the House itself affirms or overturns the finding of the Committee on Justice that the

verified complaint and/or resolution is not sufficient in substance or (3) by the filing or endorsement before the Secretary-General of the House of Representatives of a verified complaint or a resolution of impeachment by at least 1/3 of the members of the House thus clearly contravene Section 3 (5) of Article XI as they give the term "initiate" a meaning different from "filing." Validity of the Second Impeachment Complaint Having concluded that the initiation takes place by the act of filing of the impeachment complaint and referral to the House Committee on Justice, the initial action taken thereon, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated in the foregoing manner, another may not be filed against the same official within a one year period following Article XI, Section 3(5) of the Constitution. In fine, considering that the first impeachment complaint, was filed by former President Estrada against Chief Justice Hilario G. Davide, Jr., along with seven associate justices of this Court, on June 2, 2003 and referred to the House Committee on Justice on August 5, 2003, the second impeachment complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix William Fuentebella against the Chief Justice on October 23, 2003 violates the constitutional prohibition against the initiation of impeachment proceedings against the same impeachable officer within a one-year period. Conclusion If there is anything constant about this country, it is that there is always a phenomenon that takes the center stage of our individual and collective consciousness as a people with our characteristic flair for human drama, conflict or tragedy. Of course this is not to demean the seriousness of the controversy over the Davide impeachment. For many of us, the past two weeks have proven to be an exasperating, mentally and emotionally exhausting experience. Both sides have fought bitterly a dialectical struggle to articulate what they respectively believe to be the correct position or view on the issues involved. Passions had ran high as demonstrators, whether for or against the impeachment of the Chief Justice, took to the streets armed with their familiar slogans and chants to air their voice on the matter. Various sectors of society - from the business, retired military, to the academe and denominations of faith offered suggestions for a return to a state of normalcy in the official relations of the governmental branches affected to obviate any perceived resulting instability upon areas of national life. Through all these and as early as the time when the Articles of Impeachment had been constituted, this Court was specifically asked, told, urged and argued to take no action of any kind and form with respect to the prosecution by the House of Representatives of the impeachment complaint against the subject respondent public official. When the present petitions were knocking so to speak at the doorsteps of this Court, the same clamor for non-interference was made through what are now the arguments of "lack of jurisdiction," "non-justiciability," and "judicial self-restraint" aimed at halting the Court from any move that may have a bearing on the impeachment proceedings.

This Court did not heed the call to adopt a hands-off stance as far as the question of the constitutionality of initiating the impeachment complaint against Chief Justice Davide is concerned. To reiterate what has been already explained, the Court found the existence in full of all the requisite conditions for its exercise of its constitutionally vested power and duty of judicial review over an issue whose resolution precisely called for the construction or interpretation of a provision of the fundamental law of the land. What lies in here is an issue of a genuine constitutional material which only this Court can properly and competently address and adjudicate in accordance with the clear-cut allocation of powers under our system of government. Face-to-face thus with a matter or problem that squarely falls under the Court's jurisdiction, no other course of action can be had but for it to pass upon that problem head on. The claim, therefore, that this Court by judicially entangling itself with the process of impeachment has effectively set up a regime of judicial supremacy, is patently without basis in fact and in law. This Court in the present petitions subjected to judicial scrutiny and resolved on the merits only the main issue of whether the impeachment proceedings initiated against the Chief Justice transgressed the constitutionally imposed one-year time bar rule. Beyond this, it did not go about assuming jurisdiction where it had none, nor indiscriminately turn justiciable issues out of decidedly political questions. Because it is not at all the business of this Court to assert judicial dominance over the other two great branches of the government. Rather, the raison d'etre of the judiciary is to complement the discharge by the executive and legislative of their own powers to bring about ultimately the beneficent effects of having founded and ordered our society upon the rule of law. It is suggested that by our taking cognizance of the issue of constitutionality of the impeachment proceedings against the Chief Justice, the members of this Court have actually closed ranks to protect a brethren. That the members' interests in ruling on said issue is as much at stake as is that of the Chief Justice. Nothing could be farther from the truth. The institution that is the Supreme Court together with all other courts has long held and been entrusted with the judicial power to resolve conflicting legal rights regardless of the personalities involved in the suits or actions. This Court has dispensed justice over the course of time, unaffected by whomsoever stood to benefit or suffer therefrom, unfraid by whatever imputations or speculations could be made to it, so long as it rendered judgment according to the law and the facts. Why can it not now be trusted to wield judicial power in these petitions just because it is the highest ranking magistrate who is involved when it is an incontrovertible fact that the fundamental issue is not him but the validity of a government branch's official act as tested by the limits set by the Constitution? Of course, there are rules on the inhibition of any member of the judiciary from taking part in a case in specified instances. But to disqualify this entire institution now from the suit at bar is to regard the Supreme Court as likely incapable of impartiality when one of its members is a party to a case, which is simply a non sequitur. No one is above the law or the Constitution. This is a basic precept in any legal system which recognizes equality of all men before the law as essential to the law's moral authority and that of its agents to secure respect for and obedience to its commands. Perhaps, there is no other

government branch or instrumentality that is most zealous in protecting that principle of legal equality other than the Supreme Court which has discerned its real meaning and ramifications through its application to numerous cases especially of the high-profile kind in the annals of jurisprudence. The Chief Justice is not above the law and neither is any other member of this Court. But just because he is the Chief Justice does not imply that he gets to have less in law than anybody else. The law is solicitous of every individual's rights irrespective of his station in life. The Filipino nation and its democratic institutions have no doubt been put to test once again by this impeachment case against Chief Justice Hilario Davide. Accordingly, this Court has resorted to no other than the Constitution in search for a solution to what many feared would ripen to a crisis in government. But though it is indeed immensely a blessing for this Court to have found answers in our bedrock of legal principles, it is equally important that it went through this crucible of a democratic process, if only to discover that it can resolve differences without the use of force and aggression upon each other. WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment Proceedings which were approved by the House of Representatives on November 28, 2001 are unconstitutional. Consequently, the second impeachment complaint against Chief Justice Hilario G. Davide, Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix William B. Fuentebella with the Office of the Secretary General of the House of Representatives on October 23, 2003 is barred under paragraph 5, section 3 of Article XI of the Constitution. SO ORDERED.

EN BANC
[G.R. No. 160261. November 10, 2003.] ERNESTO B. FRANCISCO, JR., petitioner, NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA MANGGAGAWANG PILIPINO, INC., ITS OFFICERS AND MEMBERS, petitioner-inintervention, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER JOSE G. DE VENECIA, THE SENATE, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON, REPRESENTATIVE GILBERTO C. TEODORO, JR. AND REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, respondents, 1 JAIME N. SORIANO,
respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

[G.R. No. 160262. November 10, 2003.] SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA RAZON-ABAD, petitioners, ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO QUADRA, petitioners-inintervention, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. [G.R. No. 160263. November 10, 2003.] ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT, AND JOSE G. DE VENECIA, JR., IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF REPRESENTATIVES, respondents, JAIME N.

SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. [G.R. No. 160277. November 10, 2003.] FRANCISCO I. CHAVEZ, petitioner, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-inintervention, vs. JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF REPRESENTATIVES, FRANKLIN M. DRILON, IN HIS CAPACITY AS PRESIDENT OF THE SENATE OF THE REPUBLIC OF THE PHILIPPINES, GILBERT TEODORO, JR., FELIX WILLIAM FUENTEBELLA, JULIO LEDESMA IV, HENRY LANOT, KIM BERNARDOLOKIN, MARCELINO LIBANAN, EMMYLOU TALIO-SANTOS, DOUGLAS CAGAS, SHERWIN GATCHALIAN, LUIS BERSAMIN, JR., NERISSA SOON-RUIZ, ERNESTO NIEVA, EDGAR ERICE, ISMAEL MATHAY, SAMUEL DANGWA, ALFREDO MARAON, JR., CECILIA CARREON-JALOSJOS, AGAPITO AQUINO, FAUSTO SEACHON, JR., GEORGILU YUMUL-HERMIDA, JOSE CARLOS LACSON, MANUEL ORTEGA, ULIRAN JUAQUIN, SORAYA JAAFAR, WILHELMINO SY-ALVARADO, CLAUDE BAUTISTA, DEL DE GUZMAN, ZENAIDA CRUZ-DUCUT, AUGUSTO BACULIO, FAUSTINO DY III, AUGUSTO SYJUCO, ROZZANO RUFINO BIAZON, LEOVIGILDO BANAAG, ERIC SINGSON, JACINTO PARAS, JOSE SOLIS, RENATO MATUBO, HERMINO TEVES, AMADO ESPINO, JR., EMILIO MACIAS, ARTHUR PINGOY, JR., FRANCIS NEPOMUCENO, CONRADO ESTRELLA III, ELIAS BULUT, JR., JURDIN ROMUALDO, JUAN PABLO BONDOC, GENEROSO TULAGAN, PERPETUO YLAGAN, MICHAEL DUAVIT, JOSEPH DURANO, JESLI LAPUS, CARLOS COJUANGCO, GIORGIDI AGGABAO, FRANCIS ESCUDERRO, RENE VELARDE, CELSO LOBREGAT, ALIPIO BADELLES, DIDAGEN DILANGALEN, ABRAHAM MITRA, JOSEPH SANTIAGO, DARLENE ANTONIO-CUSTODIO, ALETA SUAREZ, RODOLFO PLAZA, JV BAUTISTA, GREGORIO IPONG, GILBERT REMULLA, ROLEX SUPLICO, CELIA LAYUS, JUAN MIGUEL ZUBIRI, BENASING MACARAMBON, JR., JOSEFINA JOSON, MARK COJUANGCO, MAURICIO DOMOGAN, RONALDO ZAMORA, ANGELO MONTILLA, ROSELLER BARINAGA, JESNAR FALCON, REYLINA NICOLAS, RODOLFO ALBANO, JOAQUIN CHIPECO, JR., AND

RUY ELIAS LOPEZ, respondents, JAIME N. SORIANO, respondentin-intervention, SENATOR AQUILINO Q. PIMENTEL, respondentin-intervention. [G.R. No. 160292. November 10, 2003.] HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA. CECILIA PAPA, NAPOLEON C. REYES, ANTONIO H. ABAD, JR., ALFREDO C. LIGON, JOAN P. SERRANO AND GARY S. MALLARI, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-inintervention, vs. HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P. NAZARENO, IN HIS CAPACITY AS SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES, AND THE HOUSE OF REPRESENTATIVES, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. [G.R. No. 160295. November 10, 2003.] SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. GONZALES, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-inintervention, vs. THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. [G.R. No. 160310. November 10, 2003.] LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN MATIBAG, RAMON MIQUIBAS, RODOLFO MAGSINO, EDUARDO MALASAGA, EDUARDO SARMIENTO, EDGARDO NAOE, LEONARDO GARCIA, EDGARD SMITH, EMETERIO MENDIOLA, MARIO TOREJA, GUILLERMO CASTASUS, NELSON A. LOYOLA, WILFREDO BELLO, JR.,

RONNIE TOQUILLO, KATE ANN VITAL, ANGELITA Q. GUZMAN, MONICO PABLES, JR., JAIME BOAQUINA, LITA A. AQUINO, MILA P. GABITO, JANETTE ARROYO, RIZALDY EMPIG, ERNA LAHUZ, HOMER CALIBAG, DR. BING ARCE, SIMEON ARCE, JR., EL DELLE ARCE, WILLIE RIVERO, DANTE DIAZ, ALBERTO BUENAVISTA, FAUSTO BUENAVISTA, EMILY SENERIS, ANNA CLARISSA LOYOLA, SALVACION LOYOLA, RAINIER QUIROLGICO, JOSEPH LEANDRO LOYOLA, ANTONIO LIBREA, FILEMON SIBULO, MANUEL D. COMIA, JULITO U. SOON, VIRGILIO LUSTRE, AND NOEL ISORENA, MAU RESTRIVERA, MAX VILLAESTER, AND EDILBERTO GALLOR, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON. SPEAKER JOSE C. DE VENECIA, JR., THE SENATE, REPRESENTED BY HON. SENATE PRESIDENT FRANKLIN DRILON, HON. FELIX FUENTEBELLA, ET AL., respondents. [G.R. No. 160318. November 10, 2003.] PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners, vs. HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF REPRESENTATIVES, HON. SENATE PRESIDENT FRANKLIN M. DRILON, AND ALL MEMBERS, PHILIPPINE SENATE, respondents. [G.R. No. 160342. November 10, 2003.] ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER OF THE INTEGRATED BAR OF THE PHILIPPINES, MANILA III, AND ENGR. MAXIMO N. MENEZ JR., IN HIS CAPACITY AS A TAXPAYER AND MEMBER OF THE ENGINEERING PROFESSION, petitioners, vs. THE HOUSE OF REPRESENTATIVES REPRESENTED BY THE 83 HONORABLE MEMBERS OF THE HOUSE LED BY HON. REPRESENTATIVE WILLIAM FUENTEBELLA, respondents. [G.R. No. 160343. November 10, 2003.]

INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents. [G.R. No. 160360. November 10, 2003.] CLARO B. FLORES, petitioner, vs. THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER, AND THE SENATE OF THE PHILIPPINES, THROUGH THE SENATE PRESIDENT, respondents. [G.R. No. 160365. November 10, 2003.] U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C. PADERANGA, DANILO V. ORTIZ, GLORIA C. ESTENZORAMOS, LIZA D. CORRO, LUIS V. DIORES, SR., BENJAMIN S. RALLON, ROLANDO P. NONATO, DANTE T. RAMOS, ELSA R. DIVINAGRACIA, KAREN B. CAPARROS-ARQUILLANO, SYLVA G. AGUIRRE-PADERANGA, FOR THEMSELVES AND IN BEHALF OF OTHER CITIZENS OF THE REPUBLIC OF THE PHILIPPINES, petitioners, vs. THE HOUSE OF REPRESENTATIVES, SPEAKER JOSE G. DE VENECIA, THE SENATE OF THE PHILIPPINES, SENATE PRESIDENT FRANKLIN DRILON, HOUSE REPRESENTATIVES FELIX FUENTEBELLA AND GILBERTO TEODORO, BY THEMSELVES AND AS REPRESENTATIVES OF THE GROUP OF MORE THAN 80 HOUSE REPRESENTATIVES WHO SIGNED AND FILED THE IMPEACHMENT COMPLAINT AGAINST SUPREME COURT CHIEF JUSTICE HILARIO G. DAVIDE, JR., respondents. [G.R. No. 160370. November 10, 2003.] FR. RANHILIO CALLANGAN AQUINO, petitioner, vs. THE HONORABLE PRESIDENT OF THE SENATE, THE

HONORABLE SPEAKER OF THE HOUSE OF REPRESENTATIVES, respondents. [G.R. No. 160376. November 10, 2003.] NILO A. MALANYAON, petitioner, vs. HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN REPRESENTATION OF THE 86 SIGNATORIES OF THE ARTICLES OF IMPEACHMENT AGAINST CHIEF JUSTICE HILARIO G. DAVIDE, JR. AND THE HOUSE OF REPRESENTATIVES, CONGRESS OF THE PHILIPPINES, REPRESENTED BY ITS SPEAKER, HON. JOSE G. DE VENECIA, respondents. [G.R. No. 160392. November 10, 2003.] VENICIO S. FLORES AND HECTOR L. HOFILEA, petitioners, vs. THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G. DE VENECIA, AND THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT FRANKLIN DRILON, respondents. [G.R. No. 160397. November 10, 2003.] IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF JUSTICE HILARIO G. DAVIDE, JR., ATTY. DIOSCORO U. VALLEJOS, JR., petitioner. [G.R. No. 160403. November 10, 2003.] PHILIPPINE BAR ASSOCIATION, petitioner, vs. THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR PRESIDING OFFICER, HON. JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT, HON. FRANKLIN DRILON, respondents. [G.R. No. 160405. November 10, 2003.]

DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY CHAPTER, MANUEL M. MONZON, PRESIDING OF IBP, CEBU PROVINCE, VICTOR A. MAAMBONG, PROVINCIAL BOARD MEMBER, ADELINO B. SITOY, DEAN OF THE COLLEGE OF LAW, UNIVERSITY OF CEBU, YOUNG LAWYERS ASSOCIATION OF CEBU, INC. [YLAC], REPRESENTED BY ATTY. MANUEL LEGASPI, CONFEDERATION OF ACCREDITED MEDIATORS OF THE PHILIPPINES, INC. [CAMP, INC.], REPRESENTED BY RODERIC R. POCA, MANDAUE LAWYERS ASSOCIATION, [MANLAW], REPRESENTED BY FELIPE VELASQUEZ, FEDERACION INTERNACIONAL DE ABOGADAS [FIDA], REPRESENTED BY THELMA L. JORDAN, CARLOS G. CO, PRESIDENT OF CEBU CHAMBER OF COMMERCE AND INDUSTRY AND CEBU LADY LAWYERS ASSOCIATION, INC. [CELLA, INC.], MARIBELLE NAVARRO AND BERNARDITO FLORIDO, PAST PRESIDENT CEBU CHAMBER OF COMMERCE AND INTEGRATED BAR OF THE PHILIPPINES, CEBU CHAPTER, petitioners, vs. THE HOUSE OF REPRESENTATIVES, REPRESENTED BY REP. JOSE G. DE VENECIA, AS HOUSE SPEAKER AND THE SENATE, REPRESENTED BY SENATOR FRANKLIN DRILON, AS SENATE PRESIDENT, respondents.

SYNOPSIS On June 2, 2003, former President Joseph E. Estrada filed with the Office of the Secretary General of the House of Representatives, a verified impeachment complaint against Chief Justice Hilario G. Davide, Jr. and seven (7) other Associate Justices of the Court for violation of the Constitution, betrayal of public trust and, committing high crimes. The House Committee on Justice subsequently dismissed said complaint on October 22, 2003 for insufficiency of substance. The next day, or on October 23, 2003, Representatives Gilberto C. Teodoro, Jr., First District, Tarlac and Felix William B. Fuentebella, Third District, Camarines Sur, filed another verified impeachment complaint with the Office of the Secretary General of the House against Chief Justice Hilario G. Davide, Jr., alleging underpayment of the COLA of the members and personnel of the judiciary from the JDF and unlawful disbursement of said fund for various infrastructure projects and acquisition of service vehicles and other equipment. Attached to the second impeachment complaint was a Resolution of Endorsement/Impeachment signed by at least one-third (1/3) of all the members of the

House of Representatives. The complaint was set to be transmitted to the Senate for appropriate action. Subsequently, several petitions were filed with this Court by members of the bar, members of the House of Representatives and private individuals, asserting their rights, among others, as taxpayers, to stop the illegal spending of public funds for the impeachment proceedings against the Chief Justice. Petitioners contended that the filing of second impeachment complaint against the Chief Justice was barred under Article XI, Sec. 3 (5) of the 1987 Constitution which states that "no impeachment proceedings shall be initiated against the same official more than once within a period of one year." The Supreme Court held that the second impeachment complaint filed against Chief Justice Hilario G. Davide, Jr. was unconstitutional or barred under Article XI, Sec. 3 (5) of the 1987 Constitution. Petitioners, as taxpayers, had sufficient standing to file the petitions to prevent disbursement of public funds amounting to millions of pesos for an illegal act. The petitions were justiciable or ripe for adjudication because there was an actual controversy involving rights that are legally demandable. Whether the issues present a political question, the Supreme Court held that only questions that are truly political questions are beyond judicial review. The Supreme Court has the exclusive power to resolve with definitiveness the issues of constitutionality. It is duty bound to take cognizance of the petitions to exercise the power of judicial review as the guardian of the Constitution. SYLLABUS 1.POLITICAL LAW; POWER OF JUDICIAL REVIEW; INCLUDES THE DUTY TO CURB GRAVE ABUSE OF DISCRETION BY "ANY BRANCH OR INSTRUMENTALITY OF GOVERNMENT." This Court's power of judicial review is conferred on the judicial branch of the government in Section l, Article VIII of our present 1987 Constitution. . . As pointed out by Justice Laurel, this "moderating power" to "determine the proper allocation of powers" of the different branches of government and "to direct the course of government along constitutional channels" is inherent in all courts as a necessary consequence of the judicial power itself, which is "the power of the court to settle actual controversies involving rights which are legally demandable and enforceable.". . In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, ". . . judicial review is essential for the maintenance and enforcement of the separation of powers and the balancing of powers among the three great departments of government through the definition and maintenance of the boundaries of authority and control between them." To him,"[j]udicial review is the chief, indeed the only, medium of participation or instrument of intervention of the judiciary in that balancing operation." To ensure the potency of the power of judicial review to curb grave abuse of discretion by "any branch or instrumentalities of government." the afore-quoted Section

1, Article VIII of the Constitution engraves, for the first time into its history, into block letter law the so-called "expanded certiorari jurisdiction" of this court. 2.ID.; ID.; ID.; AMERICAN JURISPRUDENCE AND AUTHORITIES CONFERRING UPON THE LEGISLATURE THE DETERMINATION OF ALL ISSUES PERTAINING TO IMPEACHMENT TO THE TOTAL EXCLUSION OF THE POWER OF JUDICIAL REVIEW ARE OF DUBIOUS APPLICATION WITHIN OUR JURISDICTION; CASE AT BAR. Respondents' and intervenors' reliance upon American jurisprudence, the American Constitution and American authorities cannot be credited to support the proposition that the Senate's "sole power to try and decide impeachment cases," as provided for under Art. XI, Sec. 3(6) of the Constitution, is a textually demonstrable constitutional commitment of all issues pertaining to impeachment to the legislature, to the total exclusion of the power of judicial review to check and restrain any grave abuse of the impeachment process. Nor can it reasonably support the interpretation that it necessarily confers upon the Senate the inherently judicial power to determine constitutional questions incident to impeachment proceedings. Said American jurisprudence and authorities, much less the American Constitution, are of dubious application for these are no longer controlling within our jurisdiction and have only limited persuasive merit insofar as Philippine constitutional law is concerned. As held in the case of Garcia vs. COMELEC, "[i]n resolving constitutional disputes, [this Court] should not be beguiled by foreign jurisprudence some of which are hardly applicable because they have been dictated by different constitutional settings and needs." Indeed, although the Philippine Constitution can trace its origins to that of the United States, their paths of development have long since diverged. In the colorful words of amicius curiae Father Bernas, "[w]e have cut the umbilical cord." 3.ID.; ID.; ID.; DIFFERENCE BETWEEN THE JUDICIAL POWER OF THE PHILIPPINE SUPREME COURT AND THAT OF THE U.S. SUPREME COURT AND DISTINCTIONS BETWEEN THE PHILIPPINE AND U.S. CONSTITUTIONS. The major difference between the judicial power of the Philippine Supreme Court and that of the U.S. Supreme Court is that while the power of judicial review is only impliedly granted to the U.S. Supreme Court and is discretionary in nature, that granted to the Philippine Supreme Court and lower courts, as expressly provided for in the Constitution, is not just a power but also a duty, and it was given an expanded definition to include the power to correct any grave abuse of discretion on the part of any government branch or instrumentality. There are also glaring distinctions between the U.S. Constitution and the Philippine Constitution with respect to the power of the House of Representatives over impeachment proceedings. While the U.S. Constitution bestows sole power of impeachment to the House of Representatives without limitation, our Constitution, though vesting in the House of Representatives the exclusive power to initiate impeachment cases, provides for several limitations to the exercise of such power as embodied in Section 3(2), (3). (4) and (5), Article XI thereof. These limitations include

the manner of filing, required vote to impeach, and the one year bar on the impeachment of one and the same official. 4.ID.; ID.; POWER EXCLUSIVELY VESTED IN THE JUDICIARY; CONGRESS HAS NO POWER TO RULE ON THE ISSUE OF CONSTITUTIONALITY. The futility of seeking remedies from either or both Houses of Congress before coming to this Court is shown by the fact that, as previously discussed, neither the House of Representatives nor the Senate is clothed with the power to rule with definitiveness on the issue of constitutionality, whether concerning impeachment proceedings or otherwise, as said power is exclusively vested in the judiciary by the earlier quoted Section 1, Article VIII of the Constitution. Remedy cannot be sought from a body which is bereft of power to grant it. 5.ID.; ID.; JUDICIAL POWER IS NOT ONLY A POWER BUT ALSO A DUTY; ONLY "TRULY POLITICAL QUESTIONS" ARE BEYOND JUDICIAL REVIEW. From the foregoing record of the proceedings of the 1986 Constitutional Commission, it is clear that judicial power is not only a power; it is also a duty, a duty which cannot be abdicated by the mere specter of this creature called the political question doctrine. Chief Justice Concepcion hastened to clarify, however, that Section 1, Article VIII was not intended to do away with "truly political questions." From this clarification it is gathered that there are two species of political questions: (1) "truly political questions" and (2) those which "are not truly political questions." Truly political questions are thus beyond judicial review, the reason being that respect for the doctrine of separation of powers must be maintained. On the other hand. by virtue of Section 1, Article VIII of the Constitution, courts can review questions which are not truly political in nature. 6.ID.; ID.; EXERCISE OF JUDICIAL RESTRAINT OVER JUSTICIABLE ISSUES IS NOT AN OPTION; COURT IS DUTY BOUND TO TAKE COGNIZANCE OF PETITIONS IN CASE AT BAR. The exercise of judicial restraint over justiciable issues is not an option before this Court. Adjudication may not be declined, because this Court is not legally disqualified. Nor can jurisdiction be renounced as there is no other tribunal to which the controversy may be referred."Otherwise, this Court would be shirking from its duty vested under Art. VIII, Sec. 1(2) of the Constitution. More than being clothed with authority thus, this Court is duty-bound to take cognizance of the instant petitions. In the august words of amicus curiae Father Bernas "jurisdiction is not just a power; it is a solemn duty which may not be renounced. To renounce it, even if it is vexatious, would be a dereliction of duty." Even in cases where it is an interested party, the Court under our system of government cannot inhibit itself and must rule upon the challenge because no other office has the authority to do so. On the occasion when this Court had been an interested party to the controversy before it, it had acted upon the matter "not with officiousness but in the discharge of an unavoidable duty and, as always, with detachment and fairness." After all, "by [his] appointment to the office, the public has laid on [a member of the judiciary] their confidence that [he] is mentally and morally

fit to pass upon the merits of their varied contentions. For this reason, they expect [him] to be fearless in [his] pursuit to render justice, toi be unafraid to displease any person, interest or power and to equipped with a moral fiber strong enough to resist the temptation lurking in [his] office."

7.POLITICAL LAW; LEGISLATIVE DEPARTMENT; IMPEACHMENT POWER; ONE-YEAR BAN PROHIBITING THE INITIATION OF IMPEACHMENT PROCEEDINGS AGAINST THE SAME OFFICIALS UNDER SECTION 3(5) OF THE CONSTITUTION; MEANING OF TIE TERM "INITIATE"; CASE AT BAR. From the records of the Constitutional Commission, to the amicus curiae briefs of two former Constitutional Commissioners, it is without a doubt that the term "to initiate" refers to the filing of the impeachment complaint coupled with Congress' taking initial action on said complaint. Having concluded that the initiation takes place by the act of filing and referral or endorsement of the impeachment complaint to the House Committee on Justice or, by the filing by at least one-third of the members of the House of Representatives with the Secretary General of the House, the meaning of Section 3(5) of Article XI becomes clear. Once an impeachment complaint has been initiated, another impeachment complaint may not be filed against the same official within a one year period. 8.ID.; ID.; ID.; POWER OF CONGRESS TO MAKE AND INTERPRET ITS RULES ON IMPEACHMENT IS NOT ABSOLUTE; IMPEACHMENT RULES MUST EFFECTIVELY CARRY OUT THE PURPOSE OF THE CONSTITUTION. Respondent House of Representatives counters that under Section 3 (8) of Article XI, it is clear and unequivocal that it and only it has the power to make and interpret its rules governing impeachment. Its argument is premised on the assumption that Congress has absolute power to promulgate its rules. This assumption, however, is misplaced. Section 3(8) of Article XI provides that "The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section." Clearly, its power to promulgate its rules on impeachment is limited by the phrase "to effectively carry out the purpose of this section." Hence, these rules cannot contravene the very purpose of the Constitution which said rules were intended to effectively carry out. Moreover, Section 3 of Article XI clearly provides for other specific limitations on its power to make rules. VITUG, J., separate opinion: 1.POLITICAL LAW; SUPREME COURT; POWER OF JUDICIAL REVIEW; NOT FORECLOSED BY THE ISSUE OF "POLITICAL QUESTION" ON AN ASSAILED ACT OF A BRANCH OF GOVERNMENT WHERE DISCRETION HAS NOT, IN FACT BEEN VESTED, YET ASSUMED AND EXERCISED. The Court should not consider the issue of "political question" as foreclosing judicial review on an assailed act

of a branch of government in instances where discretion has not, in fact, been vested, yet assumed and exercised. Where, upon the other hand, such discretion is given, the "political question doctrine" may be ignored only if the Court sees such review as necessary to void an action committed with grave abuse of discretion amounting to lack or excess of jurisdiction. In the latter case, the constitutional grant of the power of judicial review vested by the Philippine Constitution on the Supreme Court is rather clear and positive, certainly and textually broader and more potent than where it has been borrowed. 2.ID.; ID.; SCOPE OF POWER UNDER THE 1987 CONSTITUTION, EXPANDED; VIOLATIONS OF CONSTITUTIONAL MANDATES ARE SUBJECT TO JUDICIAL INQUIRY; SUPREME COURT AS THE ULTIMATE ARBITER ON, AND THE ADJUDGED SENTINEL OF THE CONSTITUTION. The 1987 Constitution has, in good measure, "narrowed the reach of the `political question doctrine' by expanding the power of judicial review of the Supreme Court not only to settle actual controversies involving rights which are legally demandable and enforceable but also to determine whether or not grave abuse of discretion has attended an act of any branch or instrumentality of government. When constitutional limits or proscriptions are expressed, discretion is effectively withheld. Thus, issues pertaining to who are impeachable officers, the number of votes necessary to impeach and the prohibition against initiation of impeachment proceeding twice against the same official in a single year, provided for in Sections 2, 3, and 4, and 5 of Article XI of the Constitution, verily are subject to judicial inquiry, and any violation or disregard of these explicit Constitutional mandates can be struck down by the Court in the exercise of judicial power. In so doing, the Court does not thereby arrogate unto itself, let alone assume superiority over, nor undue interference into the domain of, a co-equal branch of government, but merely fulfills its constitutional duty to uphold the supremacy of the Constitution. The judiciary may be the weakest among the three branches of government but it concededly and rightly occupies the post of being the ultimate arbiter on, and the adjudged sentinel of, the Constitution. 3.ID.; LEGISLATIVE DEPARTMENT; IMPEACHMENT PROCEEDINGS; ONEYEAR BAN PROHIBITING THE INITIATION OF A SECOND IMPEACHMENT COMPLAINT AGAINST THE SAME OFFICIALS UNDER SECTION 3(5) OF THE CONSTITUTION; MEANING OF THE TERM, "INITIATE"; CASE AT BAR. I would second the view that the term "initiate" should be construed as the physical act of filing the complaint, coupled with an action by the House taking cognizance of it, i.e., referring the complaint to the proper Committee. Evidently, the House of Representatives had taken cognizance of the first complaint and acted on it 1) The complaint was filed on 02 June 2003 by former President Joseph Estrada along with the resolutions of endorsement signed by three members of the House of Representatives; 2) on 01 August 2003, the Speaker of the House directed the chairman of the House Committee on Rules, to include in the Order of Business the complaint; 3) on 13 October 2003, the House Committee on Justice included the complaint in its Order of Business and ruled that the

complaint was sufficient in form; and 4) on 22 October 2003, the House Committee on Justice dismissed the complaint for impeachment against the eight justices, including Chief Justice Hilario Davide, Jr., of the Supreme Court, for being insufficient in substance. The following day, on 23 October 2003, the second impeachment complaint was filed by two members of the House of Representatives, accompanied by an endorsement signed by at least one-third of its membership, against the Chief Justice. PANGANIBAN, J. separate concurring opinion: POLITICAL LAW; SUPREME COURT; POWER OF JUDICIAL REVIEW; HAS THE DUTY TO DETERMINE WHETHER ANY INCIDENT OF THE IMPEACHMENT PROCEEDING VIOLATES ANY CONSTITUTIONAL PROHIBITION; CASE AT BAR. The constitution imposes on the Supreme court the duty to rule on unconstitutional acts of "any" branch or instrumentality of government. Such duty is plenary, extensive and admits of no exceptions. While the Court is not authorized to pass upon the wisdom of an impeachment, it is nonetheless obligated to determine whether any incident of the impeachment proceedings violates any constitutional prohibition, condition or limitation imposed on its exercise. Thus, normally, the Court may not inquire into how and why the house initiates an impeachment complaint. But if in initiating one, it violates a constitutional prohibition, condition or limitation on the exercise thereof, then the Court as the protector and interpreter of the Constitution is duty-bound to intervene and "to settle" the issue. . . In the present cases, the main issue is whether, in initiating the second Impeachment Complaint, the House of Representatives violated Article XI, Section 3(5), which provides that "[n]o impeachment proceedings shall be initiated against the same official more than once within a period of one year." The interpretation of this constitutional prohibition or condition as it applies to the second Impeachment Complaint clearly involves the "legality, not the wisdom" of the acts of the House of Representatives. Thus, the Court must "settle it." SANDOVAL-GUTIERREZ, J., separate concurring opinion: 1.POLITICAL LAW; SUPREME COURT; POWER OF JUDICIAL REVIEW; COURT SHOULD DO ITS DUTY TO INTERPRET THE LAW EVEN IF THERE IS A DANGER OF EXPOSING THE COURT'S INABILITY IN GIVING EFFICACY TO ITS JUDGMENT. Confronted with an issue involving constitutional infringement, should this Court shackle its hands under the principle of judicial self restraint? The polarized opinions of the amici curiae is that by asserting its power of judicial review, this Court can maintain the supremacy of the Constitution but at the same time invites a disastrous confrontation with the House of Representatives. A question repeated almost to satiety is what if the House holds its ground and refuses to respect the Decision of this Court? It is argued that there will be a Constitutional crisis. Nonetheless, despite such impending scenario, I believe this Court should do its duty mandated by the Constitution, seeing to it that it acts within the bounds of its authority. The 1987

Constitution speaks of judicial prerogative not only in terms of power but also of duty. As the last guardian of the Constitution, the Court's duty is to uphold and defend it at all times and for all persons. It is a duty this Court cannot abdicate. It is a mandatory and inescapable obligation made particularly more exacting and peremptory by the oath of each member of this Court. Judicial reluctance on the face of a clear constitutional transgression may bring about the death of the rule of law in this country. Yes, there is indeed a danger of exposing the Court's inability in giving efficacy to its judgment. But is it not the way in our present system of government? The Legislature enacts the law, the Judiciary interprets it and the Executive implements it. It is not for the Court to withhold its judgment just because it would be a futile exercise of authority. It should do its duty to interpret the law. 2.ID.; ID.; ID.; IMPEACHMENT PROCEEDINGS; SUPREME COURT HAS POWER TO DECLARE HOUSE RULES OR ACT UNCONSTITUTIONAL IF FORBIDDEN BY THE CONSTITUTION. While the power to initiate all cases of impeachment is regarded as a matter of "exclusive" concern only of the House of Representatives, over which the other departments may not exercise jurisdiction by virtue of the separation of powers established by the fundamental law, it does not follow that the House of Representatives may not overstep its own powers defined and limited by the Constitution. Indeed, it cannot, under the guise of implementing its Rules, transgress the Constitution, for when it does, its act immediately ceases to be a mere internal concern. Surely, by imposing limitations on specific powers of the House of Representatives, a fortiori, the Constitution has prescribed a diminution of its "exclusive power." I am sure that the honorable Members of the House who took part in the promulgation and adoption of its internal rules on impeachment did not intend to disregard or disobey the clear mandate of the Constitution the law of the people. And I confidently believe that they recognize, as fully as this Court does, that the Constitution is the supreme law of the land, equally binding upon every branch or department of the government and upon every citizen, high or low. It need not be stressed that under our present form of government, the executive, legislative and judicial departments are coequal and co-important. But it does not follow that this Court, whose Constitutional primary duty is to interpret the supreme law of the land, has not the power to declare the House Rules unconstitutional. Of course, this Court will not attempt to require the House of Representatives to adopt a particular action, but it is authorized and empowered to pronounce an action null and void if found to be contrary to the provisions of the Constitution.

3.ID.; ID.; ID.; IMPEACHMENT CASES; PETITIONERS, AS TAXPAYERS, HAVE LOCUS STANDI TO QUESTION VALIDITY OF THE SECOND IMPEACHMENT COMPLAINT AGAINST THE CHIEF JUSTICE. Indeed, the present suits involve matters of first impression and of immense importance to the public considering that, as previously stated, this is the first time a Chief Justice of the Supreme Court is being

subjected to an impeachment proceeding which, according to petitioners, is prohibited by the Constitution. Obviously, if such proceeding is not prevented and nullified, public funds amounting to millions of pesos will be disbursed for an illegal act. Undoubtedly, this is a grave national concern involving paramount public interest. The petitions are properly instituted to avert such a situation. CORONA, J., separate opinion: 1.POLITICAL LAW; LEGISLATIVE DEPARTMENT; IMPEACHMENT; PURPOSE; INTENDED TO BE AN INSTRUMENT OF LAST RESORT. Impeachment has been described as sui generis and an "exceptional method of removing exceptional public officials (that must be) exercised by the Congress with exceptional caution." Thus, it is directed only at an exclusive list of officials, providing for complex procedures, exclusive grounds and every stringent limitations. The implied constitutional caveat on impeachment is that Congress should use that awesome power only for protecting the welfare of the state and the people, and not merely the personal interests of a few. There exists no doubt in my mind that the framers of the Constitution intended impeachment to be an instrument of last resort, a draconian measure to be exercised only when there are no other alternatives available. It was never meant to be a bargaining chip, much less a weapon for political leverage. Unsubstantiated allegations, mere suspicions of wrongdoing and other less than serious grounds, needless to state, preclude its invocation or exercise. 2.POLITICAL LAW; SUPREME COURT; POWER OF JUDICIAL REVIEW; SUPREME COURT HAS THE DUTY TO DECIDE PENDING PETITIONS TO MAINTAIN THE SUPREMACY OF THE CONSTITUTION IN CASE AT BAR. The Court has the obligation to decide on the issues before us to preserve the hierarchy of laws and to maintain the supremacy of the rule of the Constitution over the rule of men, . . .The Court should not evade its duty to decide the pending petitions because of its sworn responsibility as the guardian of the Constitution. To refuse cognizance of the present petitions merely because they indirectly concern the Chief Justice of this Court is to skirt the duty of dispensing fair and impartial justice. Furthermore, refusing to assume jurisdiction under these circumstances will run afoul of the great traditions of our democratic way of life and the very reason why this Court exists in the first place. 3.ID.; ID.; ID.; ID.; SCOPE OF POWER UNDER THE 1987 CONSTITUTION EXPANDED. Under the new definition of judicial power embodied in Article VIII, Section 1, courts of justice have not only the authority but also the duty to "settle actual controversies involving rights which are legally demandable and enforceable" and "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." The Court can therefore, in certain situations provided in the Constitution itself, inquire into the acts of Congress and the President, though with great hesitation and prudence

owing to mutual respect and comity. Among these situations, in so far as the pending petitions are concerned, are (1) issues involving constitutionality and (2) grave abuse of discretion amounting to lack of or excess of jurisdiction on the part of any branch of the government. These are the strongest reasons for the Court to exercise its jurisdiction over the pending cases before us. CALLEJO, SR., J., separate opinion: POLITICAL LAW; SUPREME COURT; POWER OF JUDICIAL REVIEW; IMPEACHMENT CASES; SUPREME COURT HAS THE DUTY TO CONSIDER WHETHER THE PROCEEDINGS IN CONGRESS ARE IN CONFORMITY WITH THE CONSTITUTION. Under Section 1, Article VIII of the Constitution, "judicial power is vested in the Supreme Court and in such lower courts as may be established by law. The judicial power of the Court includes the power to settle controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the branch or instrumentality of the Government." In Estrada v. Desierto, this Court held that with the new provision in the Constitution, courts are given a greater prerogative to determine what it can do to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. The constitution is the supreme law on all governmental agencies, including the House of Representatives and the Senate. Under Section 4(2), Article VIII of the Constitution, the Supreme Court is vested with jurisdiction over cases involving the constitutionality, application and operation of government rules and regulations, including the constitutionality, application and operation of rules of the House of Representatives, as well as the Senate. It is competent and proper for the Court to consider whether the proceedings in Congress are in conformity with the Constitution and the law because living under the Constitution, no branch or department of the government is supreme; and it is the duty of the judiciary to determine cases regularly brought before them, whether the powers of any branch of the government and even those of the legislative enactment of laws and rules have been exercised in conformity with the Constitution; and if they have not, to treat their acts as null and void. Under Section 5, Article VIII of the Constitution, the Court has exclusive jurisdiction over petitions for certiorari and prohibition. The House of Representatives may have the sole power to initiate impeachment cases, and the Senate the sole power to try and decide the said cases, but the exercise of such powers must be in conformity with and not in derogation of the Constitution. AZCUNA, J., separate opinion: 1.POLITICAL LAW; SUPREME COURT; POWER OF JUDICIAL REVIEW; PETITIONERS, AS TAXPAYERS, HAVE LOCUS STANDI TO QUESTION VALIDITY OF THE SECOND IMPEACHMENT COMPLAINT AGAINST THE

CHIEF JUSTICE; JUSTICIABILITY OF PETITIONS IN CASE AT BAR. There can be no serious challenge as to petitioners' locus standi. Eight are Members of the House of Representatives, with direct interest in the integrity of its proceedings. Furthermore, petitioners as taxpayers have sufficient standing, in view of the transcendental importance of the issue at hand. It goes beyond the fate of Chief Justice Davide, as it shakes the very foundations of our system of government and poses a question as to our survival as a democratic polity. There is, moreover, an actual controversy involving rights that are legally demandable, thereby leaving no doubt as to the justiciability of the petitions. 2.ID.; ID.; ID.; IMPEACHMENT CASES; SUPREME COURT HAS THE DUTY TO CONSIDER WHETHER THE PROCEEDINGS THEREIN CONFORM WITH THE CONSTITUTION. Unlike the Constitutions of other countries, that of the Philippines, our Constitution, has opted textually to commit the sole power and the exclusive power to this and to that Department or branch of government, but in doing so it has further provided specific procedures and equally textually identifiable limits to the exercise of those powers. Thus, the filing of the complaint for impeachment is provided for in detail as to who may file and as to what shall be done to the complaint after it is filed, the referral to the proper Committee, its hearing, its voting, its report to the House, and the action of the House thereon, and the timeframes for every step (Subsection 2). Similarly, the required number of votes to affirm or override a favorable or contrary resolution is stated (Subsection 3). So, also, what is needed for a complaint or resolution of impeachment to constitute the Articles of Impeachment, so that trial by the Senate shall forthwith proceed, is specifically laid down, i.e., a verified complaint or resolution of impeachment filed by at least one-third of all the Members of the House (Subsection 4). It is my view that when the Constitution not only gives or allocates the power to one Department or branch of government, be it solely or exclusively, but also, at the same time, or together with the grant or allocation, specifically provides certain limits to its exercise, then this Court, belonging to the Department called upon under the Constitution to interpret its provisions, has the jurisdiction to do so. And, in fact, this jurisdiction of the Court is not so much a power as a duty, as clearly set forth in Article VIII, Section 1 of the Constitution. 3.ID.; LEGISLATION DEPARTMENT; IMPEACHMENT; ONE-YEAR BAN PROHIBITING THE INITIATION THEREOF AGAINST THE SAME OFFICIALS UNDER ARTICLE XI, SECTION 3(5) OF THE CONSTITUTION; MEANING OF THE TERM "INITIATE." It is also contended that the provision of Article XI, Sec. 3 (5) refers to impeachment proceedings in the Senate, not in the House of Representatives. This is premised on the wording of Article XI, Sec. 3 (1) which states that "The House of Representatives shall have the exclusive power to initiate all cases of impeachment." Thus, it is argued, cases of impeachment are initiated only by the filing thereof by the House of Representatives with the Senate, so that impeachment proceedings are those that follow said filing. This interpretation does violence to the carefully allocated division of power found in Article XI, Sec. 3. Precisely, the first part of the power is lodged with

the House, that of initiating impeachment, so that a respondent hailed by the House before the Senate is a fact and in law already impeached. What the House initiates in the Senate is an impeachment CASE, not PROCEEDINGS. The proceedings for impeachment preceded that and took place exclusively in the House (in fact, nonmembers of the House cannot initiate it and there is a need for a House member to endorse the complaint). And what takes place in the Senate is the trial and the decision. For this reason, Subsections (1) to (5) of Article XI, Section 3 apply to the House whereas Subsections (6) and (7) apply to the Senate, and Subsection (8) applies to both, or to "Congress." There is therefore a sequence or order in these subsections, and the contrary view disregards the same.

TINGA, J., separate opinion: 1.POLITICAL LAW; LEGISLATIVE DEPARTMENT; IMPEACHMENT, NATURE OF. On the question of whether it is proper for this Court to decide the petitions, it would be useless for us to pretend that the official being impeached is not a member of this Court, much less the primus inter pares. Simplistic notions of rectitude will cause a furor over the decision of this Court, even if it is the right decision. Yet we must decide this case because the Constitution dictates that we do so. The most fatal charge that can be levied against this Court is that it did not obey the Constitution. The Supreme Court cannot afford, as it did in the Javellana case, to abdicate its duty and refuse to address a constitutional violation of a co-equal branch of government just because it feared the political repercussions. And it is comforting that this Court need not rest merely on rhetoric in deciding that it is proper for it to decide the petitions, despite the fact that the fate of the Chief Justice rests in the balance. Jurisprudence is replete with instances when this Court was called upon to exercise judicial duty, notwithstanding the fact that the application of the same could benefit one or all members of the Court. Nevertheless, this does not mean that the second impeachment complaint is forever barred; only that it should be dismissed without prejudice to its re-filing after one year from the filing of the first impeachment complaint. Indeed, this Court cannot deprive the House of the exclusive power of impeachment lodged in the House by the Constitution. In taking cognizance of this case, the Court does not do so out of empathy or loyalty for one of our Brethren. Nor does it do so out of enmity or loathing toward the Members of a co-equal branch, whom I still call and regard as my Brethren. The Court, in assuming jurisdiction over this case, to repeat, does so only out of duty, a duty reposed no less by the fundamental law. 2.ID.; ID.; ID.; SENATE HAS NO AUTHORITY TO PASS UPON THE HOUSE RULES ON IMPEACHMENT. Despite suggestions to the contrary, I maintain that the Senate does not have the jurisdiction to determine whether or not the House Rules of Impeachment violate the Constitution. As I earlier stated, impeachment is not an inherent

legislative function, although it is traditionally conferred on the legislature. It requires the mandate of a constitutional provision before the legislature can assume impeachment functions. The grant of power should be explicit in the Constitution. It cannot be readily carved out of the shade of a presumed penumbra. In this case, there is a looming prospect that an invalid impeachment complaint emanating from an unconstitutional set of House rules would be presented to the Senate for action. The proper recourse would be to dismiss the complaint on constitutional grounds. Yet, from the Constitutional and practical perspectives, only this Court may grant that relief. The Senate cannot be expected to declare void the Articles of Impeachment, as well as the offending Rules of the House based on which the House completed the impeachment process. The Senate cannot look beyond the Articles of Impeachment. Under the Constitution, the Senate's mandate is solely to try and decide the impeachment complaint. While the Senate acts as an impeachment court for the purpose of trying and deciding impeachment cases, such "transformation" does not vest unto the Senate any of the powers inherent in the Judiciary, because impeachment powers are not residual with the Senate. Whatever powers the Senate may acquire as an impeachment court are limited to what the Constitution provides, if any, and they cannot extend to judicial-like review of the acts of co-equal components of government, including those of the House. Pursuing the concept of the Senate as an impeachment court, its jurisdiction, like that of the regular courts,' has to be conferred by law and it cannot be presumed. This is the principle that binds and guides all courts of the land, and it should likewise govern the impeachment court, limited as its functions may be. There must be an express grant of authority in the Constitution empowering the Senate to pass upon the House Rules on Impeachment. 3.ID.; ID.; INTER-CHAMBER COURTESY; ANY ATTEMPT OF THE SENATE TO INVALIDATE THE HOUSE RULES OF IMPEACHMENT IS OBNOXIOUS TO INTER-CHAMBER COURTESY. Ought to be recognized too is the tradition of comity observed by members of Congress commonly referred to as "inter-chamber courtesy." It is simply the mutual deference accorded by the chambers of Congress to each other. Thus, "the opinion of each House should be independent and not influenced by the proceedings of the other." While inter-chamber courtesy is not a principle which has attained the level of a statutory command, it enjoys a high degree of obeisance among the members of the legislature, ensuring as it does the smooth flow of the legislative process. It is my belief that any attempt on the part of the Senate to invalidate the House Rules of Impeachment is obnoxious to inter-chamber courtesy. If the Senate were to render these House Rules unconstitutional, it would set an unfortunate precedent that might engender a wrong-headed assertion that one chamber of Congress may invalidate the rules and regulations promulgated by the other chamber. Verily, the duty to pass upon the validity of the House Rules of Impeachment is imposed by the Constitution not upon the Senate but upon this Court. 4.ID.; SUPREME COURT; POWER OF JUDICIAL REVIEW; SUPREME COURT HAS THE DUTY TO ADDRESS CONSTITUTIONAL VIOLATION OF A CO-

EQUAL BRANCH OF GOVERNMENT, EVEN IF IT WOULD REDOUND TO THE BENEFIT OF ONE, SOME OR EVEN ALL MEMBERS OF THE COURT. On the question of whether it is proper for this Court to decide the petitions, it would be useless for us to pretend that the official being impeached is not a member of this Court, much less the primus inter pares. Simplistic notions of rectitude will cause a furor over the decision of this Court, even if it is the right decision. Yet we must decide this case because the Constitution dictates that we do so. The most fatal charge that can be levied against this Court is that it did not obey the Constitution. The Supreme Court cannot afford, as it did in the Javellana case, to abdicate its duty and refuse to address a constitutional violation of a co-equal branch of government just because it feared the political repercussions. And it is comforting that this Court need not rest merely on rhetoric in deciding that it is proper for it to decide the petitions, despite the fact that the fate of the Chief Justice rests in the balance. Jurisprudence is replete with instances when this Court responded to the call of judicial duty, notwithstanding the fact that the performance of the duty would ultimately redound to the benefit of one, some or even all members of the Court. . . Indeed, this Court cannot deprive the House of the exclusive power of impeachment lodged in the House by the Constitution. In taking cognizance of this case, the Court does not do so out of empathy or loyalty for one of our Brethren. Nor does it do so out of enmity or loathing toward the Members of a coequal branch, whom I still call and regard as my Brethren. The Court, in assuming jurisdiction over this case, to repeat, does so only out of duty, a duty reposed no less by the fundamental law. PUNO, J., concurring and dissenting: 1.POLITICAL LAW; IMPEACHMENT PROCEEDINGS; HISTORIOGRAPHY OF OUR IMPEACHMENT PROVISIONS SHOW INHERENT NATURE OF IMPEACHMENT AS POLITICAL. The historiography of our impeachment provisions will show that they were liberally lifted from the US Constitution. Following an originalist interpretation, there is much to commend to the thought that they are political in nature and character. The political character of impeachment hardly changed in our 1935, 1973 and 1987 Constitutions. Thus, among the grounds of impeachment are "other high crimes or betrayal of public trust." They hardly have any judicially ascertainable content. The power of impeachment is textually committed to Congress, a political branch of government. The right to accuse is exclusively given to the House of Representatives. The right to try and decide is given solely to the Senate and not to the Supreme Court. The Chief Justice has a limited part in the process . . . to preside but without the right to vote when the President is under impeachment. Likewise, the President cannot exercise his pardoning power in cases of impeachment. All these provisions confirm the inherent nature of impeachment as political. 2.ID.; ID.; ID.; REENGINEERED CONCEPT OF OUR IMPEACHMENT IS NOW A COMMIXTURE OF POLITICAL AND JUDICIAL COMPONENTS; RIGHT OF CHIEF JUSTICE AGAINST THE INITIATION OF A SECOND IMPEACHMENT

WITHIN ONE YEAR IS A JUSTICIABLE ISSUE. Be that as it may, the purity of the political nature of impeachment has been lost. Some legal scholars characterize impeachment proceedings as akin to criminal proceedings. Thus, they point to some of the grounds of impeachment like treason, bribery, graft and corruption as well defined criminal offenses. They stress that the impeached official undergoes trial in the Senate sitting as an impeachment court. If found guilty, the impeached official suffers a penalty "which shall not be further than removal from office and disqualification to hold any office under the Republic of the Philippines." I therefore respectfully submit that there is now a commixture of political and judicial components in our reengineered concept of impeachment. It is for this reason and more that impeachment proceedings A classified as sui generis. To be sure, our impeachment proceedings are indigenous, a kind of its own. They have been shaped by our distinct political experience especially in the last fifty years. EDSA People Power I resulted in the radical rearrangement of the powers of government in the 1987 Constitution.

3.ID.; ID.; INITIATION THEREOF AND ITS DECISION ARE INITIALLY BEST LEFT TO CONGRESS; COORDINACY THEORY OF CONSTITUTIONAL INTERPRETATION AND PRUDENTIAL CONSIDERATIONS DEMAND DEFERMENT OF COURT'S EXERCISE OF JURISDICTION OVER PETITIONS; CASE AT BAR. I most respectfully submit, that the 1987 Constitution adopted neither judicial restraint nor judicial activism as a political philosophy to the exclusion of each other. The expanded definition of judicial power gives the Court enough elbow room to be more activist in dealing with political questions but did not necessarily junk restraint in resolving them. Political questions are not undifferentiated questions. They are of different variety. The antagonism between judicial restraint and judicial activism is avoided by the coordinacy theory of constitutional interpretation. This coordinacy theory gives room for judicial restraint without allowing the judiciary to abdicate its constitutionally mandated duty to interpret the constitution. Coordinacy theory rests on the premise that within the constitutional system, each branch of government has an independent obligation to interpret the Constitution. This obligation is rooted on the system of separation of powers. The oath to "support this Constitution" which the constitution mandates judges, legislators and executives to take proves this independent obligation. Thus, the coordinacy theory accommodates judicial restraint because it recognizes that the President and Congress also have an obligation to interpret the constitution. In fine, the Court, under the coordinacy theory, considers the preceding constitutional judgments made by other branches of government. By no means however, does it signify complete judicial deference. Coordinacy means courts listen to the voice of the President and Congress but their voice does not silence the judiciary. The doctrine in Marbury v. Madison that courts are not bound by the constitutional interpretation of other branches of government still rings true. As well stated, "the coordinacy thesis is quite compatible with a judicial deference that accommodates the views of other

branches, while not amounting to an abdication of judicial review." With due respect, I cannot take the extreme position of judicial restraint that always defers on the one hand, or judicial activism that never defers on the other. I prefer to take the contextual approach of the coordinacy theory which considers the constitution's allocation of decision-making authority, the constitution's judgments as to the relative risks of action and inaction by each branch of government, and the fears and aspirations embodies in the different provisions of the constitution. The contextual approach better attends to the specific character of particular constitutional provisions and calibrates deference or restraint accordingly on a case to case basis. In doing so, it allows the legislature adequate leeway to carry out their constitutional duties while at the same time ensuring that any abuse does not undermine important constitutional principles. . . Their correct calibration will compel the conclusion that this Court should defer the exercise of its ultimate jurisdiction over the petitions at bar out of prudence and respect to the initial exercise by the legislature of its jurisdiction over impeachment proceedings. YNARES-SANTIAGO, J., concurring and dissenting: 1.POLITICAL LAW; SUPREME COURT; POWER OF JUDICIAL REVIEW ; IMPEACHMENT PROCEEDINGS; SUPREME COURT HAS THE DUTY TO REVIEW THE CONSTITUTIONALITY OF THE ACTS OF CONGRESS. I also concur with the ponente that the Court has the power of judicial review: This power of the Court has been expanded by the Constitution not only to settle actual controversies involving rights which are legally demandable and enforceable but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of an branch or instrumentality of government. The court is under mandate to assume jurisdiction over, and to undertake judicial inquiry into, what may even be deemed to be political questions provided, however, that grave abuse of discretion the sole test of justiciability on purely political issues is shown to have attended the contested act. The Court checks the exercise of power of the other branches of government through judicial review. It is the final arbiter of the disputes involving the proper allocation and exercise of the different powers under the Constitution. When the Supreme Court reviews the Constitutionality of the acts of Congress, it does not thereby assert its superiority over a co-equal branch of government. It merely asserts its solemn and sacred obligation under the Constitution and affirms constitutional supremacy. Indeed, in the resolution of the principal issue in these petitions, a distinction has to be drawn between the power of the members of the House of Representatives to initiate impeachment proceedings, on the one hand, and the manner in which they have exercised that power. While it is clear that the House has the exclusive power to initiate impeachment cases, and the Senate has the sole power to try and decide these cases, the Court, upon a proper finding that either chamber committed, grave abuse of discretion or violated any constitutional provision, may invoke its corrective power of judicial review.

2.ID.; LEGISLATIVE DEPARTMENT; IMPEACHMENT PROCEEDINGS; ONEYEAR BAN PROHIBITING THE INITIATION OF IMPEACHMENT CASE AGAINST THE SAME OFFICIALS UNDER SECTION 3(5) OF THE CONSTITUTION; MEANING OF THE TERM "INITIATE. The meaning of the word "initiate" in relation to impeachment is at the center of much debate. The confusion as to the meaning of this term was aggravated by the amendment of the House of Representatives' Rules of Procedure in Impeachment Proceedings. The first set of Rules adopted on May 31, 1988, specifically Rule V, Section 14 and Rule 11, Section 2 thereof, provides that impeachment shall be initiated when a verified complaint for impeachment is filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, or when a verified complaint or resolution of impeachment is filed by at least one-third (1/3) of all the Members of the House. This provision was later amended on November 28, 2001: Rule V, Section 16 of the amendatory Rules states that impeachment proceedings under any of the three methods above-stated are deemed initiated on the day that the Committee on Justice finds that the verified complaint and/or resolution against such official is sufficient in substance or on the date the House votes to overturn or affirm the finding of the said Committee that the verified complaint and/or resolution is not sufficient in substance. The adoption of the 2001 Rules, at least insofar as initiation of impeachment proceedings is concerned, unduly expanded the power of the House by restricting the constitutional time-bar only to complaints that have been "approved" by the House Committee on Justice. As stated above, the one-year bar is a limitation set by the Constitution which Congress cannot overstep. Indeed, the Records of the Constitutional Commission clearly show that, as defined in Article XI, Section 3 (5), impeachment proceedings begin not on the floor of the House but with the filing of the complaint by any member of the House of any citizen upon a resolution of endorsement by any Member thereof. This is the plain sense in which the word "Initiate" must be understood, i.e., to begin or commence the action. 3.ID.; ID.; ID.; HOW COMPLAINT FOR IMPEACHMENT IS "FILED"; CASE AT BAR. Moreover, the second impeachment complaint was filed by only two complainants, namely Representatives Gilberto G. Teodoro, Jr. and Felix William B. Fuentebella. The rest of the members of the House whose names appear on the attachments thereto merely signed endorsements to the Complaint. Article XI, Section 3 (3) of the Constitution is explicit: In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (Emphasis provided.) The mere endorsement of the members of the House, albeit embodied in a verified resolution, did not suffice for it did not constitute filing of the impeachment complaint, as this term is plainly understood. In order that the verified complaint may be said to have been filed by at least 1/3 of the Members, all of them must be named as complainants therein. All of them must sign the main complaint. This was not done in the case of the assailed second impeachment complaint against the Chief

Justice. The complaint was not filed by at least one-third of the Members of the House, and therefore did not constitute the Article of Impeachment. I am constrained to disagree with the majority decision to discard the above issue for being unnecessary for the determination of the instant cases. On the contrary, the foregoing defect in the complaint is a vital issue in the determination of whether or not the House should transmit the complaint to the Senate, and if it does, whether the Senate should entertain it. The Constitution is clear that the complaint for impeachment shall constitute the Articles of Impeachment, without need of referral to the Committee on Justice, when the complaint is filed by at least one-third of all the Members of the House. Being the exception to the general procedure outlined in the Constitution, its formal requisites must be strictly construed. 4.ID.; ID.; ID.; SIGNING OF IMPEACHMENT COMPLAINT DONE WITHOUT DUE PROCESS IN CASE AT BAR. The impeachment complaint suffers from yet another serious flaw. As one of the amici curiae, former Senate President Jovito Salonga, pointed out, the signing of the impeachment complaint by the purported 1/3 of the Congressmen was done without due process. The Chief Justice, against whom the complaint was brought, was not served notice of the proceedings against him. No rule is better established under the due process clause of the constitution, than that which requires notice and opportunity to be heard before any person can be lawfully deprived of his rights. Indeed, when the Constitution says that no person shall be deprived of life, liberty or property without due process of law, it means that every person shall be afforded the essential element of notice in any proceeding. Any act committed in violation of due process may be declared null and void.

5.ID.; ID.; ID.; JUDICIAL SELF-RESTRAINT SHOULD BE EXERCISED IN IMPEACHMENT PROCEEDINGS. Notwithstanding the constitutional and procedural defects in the impeachment complaint, I dissent from the majority when it decided to resolve the issues at this premature stage. I submit that the process of impeachment should first be allowed to run its course. The power of this Court as the final arbiter of all justiciable questions should come into play only when the procedure as outlined in the Constitution has been exhausted. The complaint should be referred back to the House Committee on Justice, where its constitutionality may be threshed out. Thereafter, if the Committee so decides, the complaint will have to be deliberated by the House on plenary session, preparatory to its possible transmittal to the Senate. The questions on the sufficiency of the complaint in form may again be brought to the Senate by way of proper motion, and the Senate may deny the motion or dismiss the complaint depending on the merits of the grounds raised. After the Senate shall have acted in due course, its disposition of the case may be elevated to this Court pursuant to its judicial power of review. . . The Court should recognize the extent and practical limitations of its judicial prerogatives, and identify those areas where it should carefully tread instead of

rush in and act accordingly. Considering that power of impeachment was intended to be the legislature's lone check on the judiciary, exercising our power of judicial review over impeachment would place the final reviewing authority with respect to impeachments in the hands of the same body that the impeachment process is meant to regulate. In fact, judicial involvement in impeachment proceedings, even if only for purposes of judicial review is counter-intuitive because it eviscerates the improper constitutional check to the judiciary. A becoming sense of propriety and justice dictates that judicial self-restraint should be exercised; that the impeachment power should remain at all times and under all circumstances with the legislature, where the Constitution has placed it. The commonlaw principle of judicial restraint serves the public interest by allowing the political processes to operate without undue interference.

DECISION

CARPIO MORALES, J :
p

There can be no constitutional crisis arising from a conflict, no matter how passionate and seemingly irreconcilable it may appear to be, over the determination by the independent branches of government of the nature, scope and extent of their respective constitutional powers where the Constitution itself provides for the means and bases for its resolution. Our nation's history is replete with vivid illustrations of the often frictional, at times turbulent, dynamics of the relationship among these co-equal branches. This Court is confronted with one such today involving the legislature and the judiciary which has drawn legal luminaries to chart antipodal courses and not a few of our countrymen to vent cacophonous sentiments thereon. There may indeed be some legitimacy to the characterization that the present controversy subject of the instant petitions whether the filing of the second impeachment complaint against Chief Justice Hilario G. Davide, Jr. with the House of Representatives falls within the one year bar provided in the Constitution, and whether the resolution thereof is a political question has resulted in a political crisis. Perhaps even more truth to the view that it was brought upon by a political crisis of conscience. In any event, it is with the absolute certainty that our Constitution is sufficient to address all the issues which this controversy spawns that this Court unequivocally pronounces, at the first instance, that the feared resort to extra-constitutional methods of resolving it is neither necessary nor legally permissible. Both its resolution and protection of the public interest lie in adherence to, not departure from, the Constitution.

In passing over the complex issues arising from the controversy, this Court is ever mindful of the essential truth that the inviolate doctrine of separation of powers among the legislative, executive or judicial branches of government by no means prescribes for absolute autonomy in the discharge by each of that part of the governmental power assigned to it by the sovereign people. At the same time, the corollary doctrine of checks and balances which has been carefully calibrated by the Constitution to temper the official acts of each of these three branches must be given effect without destroying their indispensable co-equality. Taken together, these two fundamental doctrines of republican government, intended as they are to insure that governmental power is wielded only for the good of the people, mandate a relationship of interdependence and coordination among these branches where the delicate functions of enacting, interpreting and enforcing laws are harmonized to achieve a unity of governance, guided only by what is in the greater interest and wellbeing of the people. Verily, salus populi est suprema lex. Article XI of our present 1987 Constitution provides:
ARTICLE XI Accountability of Public Officers SECTION 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. SECTION 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.
cEDIAa

SECTION 3.(1)The House of Representatives shall have the exclusive power to initiate all cases of impeachment. (2)A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be

calendared for consideration by the House within ten session days from receipt thereof. (3)A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. (4)In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (5)No impeachment proceedings shall be initiated against the same official more than once within a period of one year. (6)The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate. (7)Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment according to law. (8)The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section. (Emphasis and italics supplied)

Following the above-quoted Section 8 of Article XI of the Constitution, the 12th Congress of the House of Representatives adopted and approved the Rules of Procedure in Impeachment Proceedings (House Impeachment Rules) on November 28, 2001, superseding the previous House Impeachment Rules 1 approved by the 11th Congress. The relevant distinctions between these two Congresses' House Impeachment Rules are shown in the following tabulation:
11TH CONGRESS RULES 12TH CONGRESS NEW RULES

RULE IIRULE V INITIATING IMPEACHMENTBAR AGAINST INITIATION OF IMPEACHMENT

PROCEEDINGS AGAINST THE SAME OFFICIAL

Section 2. Mode of InitiatingSection 16. Impeachment Proceedings Impeachment. ImpeachmentDeemed Initiated. In cases where a shall be initiated only by a verifiedMember of the House files a verified complaint for impeachment filed bycomplaint of impeachment or a citizen any Member of the House offiles a verified complaint that is endorsed Representatives or by any citizen uponby a Member of the House through a a resolution of endorsement by anyresolution of endorsement against an Member thereof or by a verifiedimpeachable officer, impeachment complaint or resolution of impeachmentproceedings against such official are filed by at least one-third (1/3) of alldeemed initiated on the day the the Members of the House.Committee on Justice finds that the verified complaint and/or resolution against such official, as the case may be, is sufficient in substance, or on the date the House votes to overturn or affirm the finding of the said Committee that the verified complaint and/or resolution, as the case may be, is not sufficient in substance.

In cases where a verified complaint or a resolution of impeachment is filed or endorsed, as the case may be, by at least one-

third (1/3) of the Members of the House, impeachment proceedings are deemed initiated at the time of the filing of such

verified complaint or resolution of impeachment with the Secretary General.

RULE V BAR AGAINST IMPEACHMENT

Section 14. Scope of Bar. NoSection 17. Bar Against Initiation Of impeachment proceedings shall beImpeachment Proceedings. Within a initiated against the same official moreperiod of one (1) year from the date than once within the period of oneimpeachment proceedings are deemed (1) year.initiated as provided in Section 16 hereof, no impeachment proceedings, as such, can be initiated against the same official. (Italics in the original; emphasis and italics supplied)

On July 22, 2002, the House of Representatives adopted a Resolution, 2 sponsored by Representative Felix William D. Fuentebella, which directed the Committee on Justice "to conduct an investigation, in aid of legislation, on the manner of disbursements and expenditures by the Chief Justice of the Supreme Court of the Judiciary Development Fund (JDF)." 3 On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint 4 (first impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate Justices 5 of this Court for "culpable violation of the Constitution, betrayal of the public trust and other high crimes." 6 The complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo B. Zamora and Didagen Piang Dilangalen, 7 and was referred

to the House Committee on Justice on August 5, 2003 8 in accordance with Section 3(2) of Article XI of the Constitution which reads:
HSTCcD

Section 3(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof.

The House Committee on Justice ruled on October 13, 2003 that the first impeachment complaint was "sufficient in form," 9 but voted to dismiss the same on October 22, 2003 for being insufficient in substance. 10 To date, the Committee Report to this effect has not yet been sent to the House in plenary in accordance with the said Section 3(2) of Article XI of the Constitution. Four months and three weeks since the filing on June 2, 2003 of the first complaint or on October 23, 2003, a day after the House Committee on Justice voted to dismiss it, the second impeachment complaint 11 was filed with the Secretary General of the House 12 by Representatives Gilberto C. Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella (Third District, Camarines Sur) against Chief Justice Hilario G. Davide, Jr., founded on the alleged results of the legislative inquiry initiated by above-mentioned House Resolution. This second impeachment complaint was accompanied by a "Resolution of Endorsement/Impeachment" signed by at least one-third (1/3) of all the Members of the House of Representatives. 13 Thus arose the instant petitions against the House of Representatives, et al., most of which petitions contend that the filing of the second impeachment complaint is unconstitutional as it violates the provision of Section 5 of Article XI of the Constitution that "[n]o impeachment proceedings shall be initiated against the same official more than once within a period of one year." In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he has a duty as a member of the Integrated Bar of the Philippines to use all available legal remedies to stop an unconstitutional impeachment, that the issues raised in his petition for Certiorari, Prohibition and Mandamus are of transcendental importance, and that he "himself was a victim of the capricious and arbitrary changes in the Rules of Procedure in Impeachment Proceedings introduced by the 12th Congress," 14 posits that his right to bring an impeachment complaint against then Ombudsman Aniano Desierto had been violated due to the capricious and arbitrary changes in the House Impeachment Rules adopted and approved on November 28, 2001 by the House of Representatives and prays that (1) Rule

V, Sections 16 and 17 and Rule III, Sections 5, 6, 7, 8, and 9 thereof be declared unconstitutional; (2) this Court issue a writ of mandamus directing respondents House of Representatives et al. to comply with Article IX, Section 3 (2), (3) and (5) of the Constitution, to return the second impeachment complaint and/or strike it off the records of the House of Representatives, and to promulgate rules which are consistent with the Constitution; and (3) this Court permanently enjoin respondent House of Representatives from proceeding with the second impeachment complaint. In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et al., as citizens and taxpayers, alleging that the issues of the case are of transcendental importance, pray, in their petition for Certiorari/Prohibition, the issuance of a writ "perpetually" prohibiting respondent House of Representatives from filing any Articles of Impeachment against the Chief Justice with the Senate; and for the issuance of a writ "perpetually" prohibiting respondents Senate and Senate President Franklin Drilon from accepting any Articles of Impeachment against the Chief Justice or, in the event that the Senate has accepted the same, from proceeding with the impeachment trial. In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad Cagampang, as citizens, taxpayers, lawyers and members of the Integrated Bar of the Philippines, alleging that their petition for Prohibition involves public interest as it involves the use of public funds necessary to conduct the impeachment trial on the second impeachment complaint, pray for the issuance of a writ of prohibition enjoining Congress from conducting further proceedings on said second impeachment complaint. In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court has recognized that he has locus standi to bring petitions of this nature in the cases of Chavez v. PCGG 15 and Chavez v. PEA-Amari Coastal Bay Development Corporation, 16 prays in his petition for Injunction that the second impeachment complaint be declared unconstitutional. In G.R. No. 160292, petitioners Atty. Harry L. Roque, et al., as taxpayers and members of the legal profession, pray in their petition for Prohibition for an order prohibiting respondent House of Representatives from drafting, adopting, approving and transmitting to the Senate the second impeachment complaint, and respondents De Venecia and Nazareno from transmitting the Articles of Impeachment to the Senate.
ESCTaA

In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and Deputy Speaker Raul M. Gonzalez, alleging that, as members of the House of Representatives, they have a legal interest in ensuring that only constitutional impeachment proceedings are initiated, pray in their petition for Certiorari/Prohibition that the second impeachment complaint and any act proceeding therefrom be declared null and void.

In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al., claiming that they have a right to be protected against all forms of senseless spending of taxpayers money and that they have an obligation to protect the Supreme Court, the Chief Justice, and the integrity of the Judiciary, allege in their petition for Certiorari and Prohibition that it is instituted as "a class suit" and pray that (1) the House Resolution endorsing the second impeachment complaint as well as all issuances emanating therefrom be declared null and void; and (2) this Court enjoin the Senate and the Senate President from taking cognizance of, hearing, trying and deciding the second impeachment complaint, and issue a writ of prohibition commanding the Senate, its prosecutors and agents to desist from conducting any proceedings or to act on the impeachment complaint. In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members are citizens and taxpayers, and its co-petitioner Crispin T. Reyes, a citizen, taxpayer and a member of the Philippine Bar, both allege in their petition, which does not state what its nature is, that the filing of the second impeachment complaint involves paramount public interest and pray that Sections 16 and 17 of the House Impeachment Rules and the second impeachment complaint/Articles of Impeachment be declared null and void. In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and a member of the Philippine Bar Association and of the Integrated Bar of the Philippines, and petitioner Engr. Maximo N. Menez, Jr., as a taxpayer, pray in their petition for the issuance of a Temporary Restraining Order and Permanent Injunction to enjoin the House of Representatives from proceeding with the second impeachment complaint. In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that it is mandated by the Code of Professional Responsibility to uphold the Constitution, prays in its petition for Certiorari and Prohibition that Sections 16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the House Impeachment Rules be declared unconstitutional and that the House of Representatives be permanently enjoined from proceeding with the second impeachment complaint.
CTAIHc

In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his petition for Certiorari and Prohibition that the House Impeachment Rules be declared unconstitutional. In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et al., in their petition for Prohibition and Injunction which they claim is a class suit filed in behalf of all citizens, citing Oposa v. Factoran 17 which was filed in behalf of succeeding generations of Filipinos, pray for the issuance of a writ prohibiting respondents House of Representatives and the Senate from conducting further proceedings on the second impeachment complaint and that this Court declare as unconstitutional the second impeachment complaint and the acts of respondent House of Representatives in interfering with the fiscal matters of the Judiciary.

In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino, alleging that the issues in his petition for Prohibition are of national and transcendental significance and that as an official of the Philippine Judicial Academy, he has a direct and substantial interest in the unhampered operation of the Supreme Court and its officials in discharging their duties in accordance with the Constitution, prays for the issuance of a writ prohibiting the House of Representatives from transmitting the Articles of Impeachment to the Senate and the Senate from receiving the same or giving the impeachment complaint due course. In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in his petition for Prohibition that respondents Fuentebella and Teodoro at the time they filed the second impeachment complaint, were "absolutely without any legal power to do so, as they acted without jurisdiction as far as the Articles of Impeachment assail the alleged abuse of powers of the Chief Justice to disburse the (JDF)." In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L. Hofilea, alleging that as professors of law they have an abiding interest in the subject matter of their petition for Certiorari and Prohibition as it pertains to a constitutional issue "which they are trying to inculcate in the minds of their students," pray that the House of Representatives be enjoined from endorsing and the Senate from trying the Articles of Impeachment and that the second impeachment complaint be declared null and void. In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging his locus standi, but alleging that the second impeachment complaint is founded on the issue of whether or not the Judicial Development Fund (JDF) was spent in accordance with law and that the House of Representatives does not have exclusive jurisdiction in the examination and audit thereof, prays in his petition "To Declare Complaint Null and Void for Lack of Cause of Action and Jurisdiction" that the second impeachment complaint be declared null and void. In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the issues raised in the filing of the second impeachment complaint involve matters of transcendental importance, prays in its petition for Certiorari/Prohibition that (1) the second impeachment complaint and all proceedings arising therefrom be declared null and void; (2) respondent House of Representatives be prohibited from transmitting the Articles of Impeachment to the Senate; and (3) respondent Senate be prohibited from accepting the Articles of Impeachment and from conducting any proceedings thereon. In G.R. No. 160405, petitioners Democrit C. Barcenas, et al., as citizens and taxpayers, pray in their petition for Certiorari/Prohibition that (1) the second impeachment complaint as well as the resolution of endorsement and impeachment by the respondent

House of Representatives be declared null and void and (2) respondents Senate and Senate President Franklin Drilon be prohibited from accepting any Articles of Impeachment against the Chief Justice or, in the event that they have accepted the same, that they be prohibited from proceeding with the impeachment trial. Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, the first three of the eighteen which were filed before this Court, 18 prayed for the issuance of a Temporary Restraining Order and/or preliminary injunction to prevent the House of Representatives from transmitting the Articles of Impeachment arising from the second impeachment complaint to the Senate. Petition bearing docket number G.R. No. 160261 likewise prayed for the declaration of the November 28, 2001 House Impeachment Rules as null and void for being unconstitutional. Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295, which were filed on October 28, 2003, sought similar relief. In addition, petition bearing docket number G.R. No. 160292 alleged that House Resolution No. 260 (calling for a legislative inquiry into the administration by the Chief Justice of the JDF) infringes on the constitutional doctrine of separation of powers and is a direct violation of the constitutional principle of fiscal autonomy of the judiciary. On October 28, 2003, during the plenary session of the House of Representatives, a motion was put forth that the second impeachment complaint be formally transmitted to the Senate, but it was not carried because the House of Representatives adjourned for lack of quorum, 19 and as reflected above, to date, the Articles of Impeachment have yet to be forwarded to the Senate.
TEHDIA

Before acting on the petitions with prayers for temporary restraining order and/or writ of preliminary injunction which were filed on or before October 28, 2003, Justices Puno and Vitug offered to recuse themselves, but the Court rejected their offer. Justice Panganiban inhibited himself, but the Court directed him to participate. Without necessarily giving the petitions due course, this Court in its Resolution of October 28, 2003, resolved to (a) consolidate the petitions; (b) require respondent House of Representatives and the Senate, as well as the Solicitor General, to comment on the petitions not later than 4:30 p.m. of November 3, 2003; (c) set the petitions for oral arguments on November 5, 2003, at 10:00 a.m.; and (d) appointed distinguished legal experts as amici curiae. 20 In addition, this Court called on petitioners and respondents to maintain the status quo, enjoining all the parties and others acting for and in their behalf to refrain from committing acts that would render the petitions moot. Also on October 28, 2003, when respondent House of Representatives through Speaker Jose C. De Venecia, Jr. and/or its co-respondents, by way of special appearance, submitted a Manifestation asserting that this Court has no jurisdiction to hear, much less

prohibit or enjoin the House of Representatives, which is an independent and co-equal branch of government under the Constitution, from the performance of its constitutionally mandated duty to initiate impeachment cases. On even date, Senator Aquilino Q. Pimentel, Jr., in his own behalf, filed a Motion to Intervene (Ex Abudante Cautela) 21 and Comment, praying that "the consolidated petitions be dismissed for lack of jurisdiction of the Court over the issues affecting the impeachment proceedings and that the sole power, authority and jurisdiction of the Senate as the impeachment court to try and decide impeachment cases, including the one where the Chief Justice is the respondent, be recognized and upheld pursuant to the provisions of Article XI of the Constitution." 22 Acting on the other petitions which were subsequently filed, this Court resolved to (a) consolidate them with the earlier consolidated petitions; (b) require respondents to file their comment not later than 4:30 p.m. of November 3, 2003; and (c) include them for oral arguments on November 5, 2003. On October 29, 2003, the Senate of the Philippines, through Senate President Franklin M. Drilon, filed a Manifestation stating that insofar as it is concerned, the petitions are plainly premature and have no basis in law or in fact, adding that as of the time of the filing of the petitions, no justiciable issue was presented before it since (1) its constitutional duty to constitute itself as an impeachment court commences only upon its receipt of the Articles of Impeachment, which it had not, and (2) the principal issues raised by the petitions pertain exclusively to the proceedings in the House of Representatives. On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, and 160295, questioning the status quo Resolution issued by this Court on October 28, 2003 on the ground that it would unnecessarily put Congress and this Court in a "constitutional deadlock" and praying for the dismissal of all the petitions as the matter in question is not yet ripe for judicial determination. On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino Quadra filed in G.R. No. 160262 a "Motion for Leave of Court to Intervene and to Admit the Herein Incorporated Petition in Intervention." On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc. filed a Motion for Intervention in G.R. No. 160261. On November 5, 2003, World War II Veterans Legionnaires of the Philippines, Inc. also filed a "Petition-inIntervention with Leave to Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and 160310. The motions for intervention were granted and both Senator Pimentel's Comment and Attorneys Macalintal and Quadra's Petition in Intervention were admitted.

On November 5-6, 2003, this Court heard the views of the amici curiae and the arguments of petitioners, intervenors Senator Pimentel and Attorney Makalintal, and Solicitor General Alfredo Benipayo on the principal issues outlined in an Advisory issued by this Court on November 3, 2003, to wit:
Whether the certiorari jurisdiction of the Supreme Court may be invoked; who can invoke it; on what issues and at what time; and whether it should be exercised by this Court at this time. In discussing these issues, the following may be taken up: a)locus standi of petitioners; b)ripeness (prematurity; mootness); c)political question/justiciability; d)House's "exclusive" power to initiate all cases of impeachment; e)Senate's "sole" power to try and decide all cases of impeachment;
aTADCE

f)constitutionality of the House Rules on Impeachment vis-a-vis Section 3(5) of Article XI of the Constitution; and g)judicial restraint (Italics in the original)

In resolving the intricate conflux of preliminary and substantive issues arising from the instant petitions as well as the myriad arguments and opinions presented for and against the grant of the reliefs prayed for, this Court has sifted and determined them to be as follows: (1) the threshold and novel issue of whether or not the power of judicial review extends to those arising from impeachment proceedings; (2) whether or not the essential pre-requisites for the exercise of the power of judicial review have been fulfilled; and (3) the substantive issues yet remaining. These matters shall now be discussed in seriatim.

Judicial Review As reflected above, petitioners plead for this Court to exercise the power of judicial review to determine the validity of the second impeachment complaint. This Court's power of judicial review is conferred on the judicial branch of the government in Section 1, Article VIII of our present 1987 Constitution:

SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. (Emphasis supplied)

Such power of judicial review was early on exhaustively expounded upon by Justice Jose P. Laurel in the definitive 1936 case of Angara v. Electoral Commission 23 after the effectivity of the 1935 Constitution whose provisions, unlike the present Constitution, did not contain the present provision in Article VIII, Section 1, par. 2 on what judicial power includes. Thus, Justice Laurel discoursed:
. . . In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof . As any human production, our Constitution is of course lacking perfection and perfectibility, but as much as it was within the power of our people, acting through their delegates to so provide, that instrument which is the expression of their sovereignty however limited, has established a republican government intended to operate and function as a harmonious whole, under a system of checks and balances, and subject to specific limitations and restrictions provided in the said instrument. The Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere political apothegms. Certainly, the limitations and restrictions embodied in our Constitution are real as they should be in any living constitution. In the United States where no express constitutional grant is found in their constitution, the possession of this moderating power of the courts, not to speak of its historical origin and development there, has been set at rest by popular acquiescence for a period of more than one and a half centuries. In our case, this moderating power is granted, if not expressly, by clear implication from section 2 of article VIII of our Constitution.
IAETDc

The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And

when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. Even then, this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government. 24 (Italics in the original; emphasis and italics supplied)

As pointed out by Justice Laurel, this "moderating power" to "determine the proper allocation of powers" of the different branches of government and "to direct the course of government along constitutional channels" is inherent in all courts 25 as a necessary consequence of the judicial power itself, which is "the power of the court to settle actual controversies involving rights which are legally demandable and enforceable." 26 Thus, even in the United States where the power of judicial review is not explicitly conferred upon the courts by its Constitution, such power has "been set at rest by popular acquiescence for a period of more than one and a half centuries." To be sure, it was in the 1803 leading case of Marbury v. Madison 27 that the power of judicial review was first articulated by Chief Justice Marshall, to wit:
It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument. 28 (Italics in the original; emphasis supplied)

In our own jurisdiction, as early as 1902, decades before its express grant in the 1935 Constitution, the power of judicial review was exercised by our courts to invalidate constitutionally infirm acts. 29 And as pointed out by noted political law professor and former Supreme Court Justice Vicente V. Mendoza, 30 the executive and legislative branches of our government in fact effectively acknowledged this power of judicial review in Article 7 of the Civil Code, to wit:
Article 7.Laws are repealed only by subsequent ones, and their violation or nonobservance shall not be excused by disuse, or custom or practice to the contrary. When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution. (Emphasis supplied)

As indicated in Angara v. Electoral Commission, 31 judicial review is indeed an integral component of the delicate system of checks and balances which, together with the corollary principle of separation of powers, forms the bedrock of our republican form of government and insures that its vast powers are utilized only for the benefit of the people for which it serves.
The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. . . . And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution. 32 (Emphasis and italics supplied)
THaAEC

In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, ". . . judicial review is essential for the maintenance and enforcement of the separation of powers and the balancing of powers among the three great departments of government through the definition and maintenance of the boundaries of authority and control between them." 33 To him, "[j]udicial review is the chief, indeed the only, medium of participation or instrument of intervention of the judiciary in that balancing operation." 34

To ensure the potency of the power of judicial review to curb grave abuse of discretion by "any branch or instrumentalities of government," the afore-quoted Section 1, Article VIII of the Constitution engraves, for the first time into its history, into block letter law the so-called "expanded certiorari jurisdiction" of this Court, the nature of and rationale for which are mirrored in the following excerpt from the sponsorship speech of its proponent, former Chief Justice Constitutional Commissioner Roberto Concepcion:
xxx xxx xxx The first section starts with a sentence copied from former Constitutions. It says:

The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. I suppose nobody can question it. The next provision is new in our constitutional law. I will read it first and explain. Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part or instrumentality of the government. Fellow Members of this Commission, this is actually a product of our experience during martial law. As a matter of fact, it has some antecedents in the past, but the role of the judiciary during the deposed regime was marred considerably by the circumstance that in a number of cases against the government, which then had no legal defense at all, the solicitor general set up the defense of political questions and got away with it. As a consequence, certain principles concerning particularly the writ of habeas corpus, that is, the authority of courts to order the release of political detainees, and other matters related to the operation and effect of martial law failed because the government set up the defense of political question. And the Supreme Court said: "Well, since it is political, we have no authority to pass upon it." The Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did not merely request an encroachment upon the rights of the people, but it, in effect, encouraged further violations thereof during the martial law regime. . . . xxx xxx xxx

Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature. This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute a political question. 35 (Italics in the original; emphasis and italics supplied)

To determine the merits of the issues raised in the instant petitions, this Court must necessarily turn to the Constitution itself which employs the well-settled principles of constitutional construction. First, verba legis, that is, wherever possible, the words used in the Constitution must be given their ordinary meaning except where technical terms are employed. Thus, in J.M. Tuason & Co., Inc. v. Land Tenure Administration, 36 this Court, speaking through Chief Justice Enrique Fernando, declared:
We look to the language of the document itself in our search for its meaning. We do not of course stop there, but that is where we begin. It is to be assumed that the words in which constitutional provisions are couched express the objective sought to be attained. They are to be given their ordinary meaning except where technical terms are employed in which case the significance thus attached to them prevails. As the Constitution is not primarily a lawyer's document, it being essential for the rule of law to obtain that it should ever be present in the people's consciousness, its language as much as possible should be understood in the sense they have in common use. What it says according to the text of the provision to be construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers and the people mean what they say. Thus these are the cases where the need for construction is reduced to a minimum. 37 (Emphasis and italics supplied)

Second, where there is ambiguity, ratio legis est anima. The words of the Constitution should be interpreted in accordance with the intent of its framers. And so did this Court apply this principle in Civil Liberties Union v. Executive Secretary 38 in this wise:
SHTaID

A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the light of the history of the times, and the condition and circumstances under which the Constitution

was framed. The object is to ascertain the reason which induced the framers of the Constitution to enact the particular provision and the purpose sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that reason and calculated to effect that purpose. 39 (Emphasis and italics supplied)

As it did in Nitafan v. Commissioner on Internal Revenue 40 where, speaking through Madame Justice Amuerfina A. Melencio-Herrera, it declared:
. . . The ascertainment of that intent is but in keeping with the fundamental principle of constitutional construction that the intent of the framers of the organic law and of the people adopting it should be given effect. The primary task in constitutional construction is to ascertain and thereafter assure the realization of the purpose of the framers and of the people in the adoption of the Constitution. It may also be safely assumed that the people in ratifying the Constitution were guided mainly by the explanation offered by the framers. 41 (Emphasis and italics supplied)

Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. Thus, in Chiongbian v. De Leon, 42 this Court, through Chief Justice Manuel Moran declared:
. . . [T]he members of the Constitutional Convention could not have dedicated a provision of our Constitution merely for the benefit of one person without considering that it could also affect others. When they adopted subsection 2, they permitted, if not willed, that said provision should function to the full extent of its substance and its terms, not by itself alone, but in conjunction with all other provisions of that great document. 43 (Emphasis and italics supplied)

Likewise, still in Civil Liberties Union v. Executive Secretary, 44 this Court affirmed that:
It is a well-established rule in constitutional construction that no one provision of the Constitution is to be separated from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the instrument. Sections bearing on a particular subject should be considered and interpreted together as to effectuate the whole purpose of the Constitution and one section is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand together. In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make the words idle and nugatory. 45 (Emphasis supplied)

If, however, the plain meaning of the word is not found to be clear, resort to other aids is available. In still the same case of Civil Liberties Union v. Executive Secretary, this Court expounded:
While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the constitutional convention "are of value as showing the views of the individual members, and as indicating the reasons for their votes, but they give us no light as to the views of the large majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer to construe the constitution from what appears upon its face." The proper interpretation therefore depends more on how it was understood by the people adopting it than in the framers's understanding thereof . 46 (Emphasis and italics supplied)

It is in the context of the foregoing backdrop of constitutional refinement and jurisprudential application of the power of judicial review that respondents Speaker De Venecia, et al. and intervenor Senator Pimentel raise the novel argument that the Constitution has excluded impeachment proceedings from the coverage of judicial review. Briefly stated, it is the position of respondents Speaker De Venecia, et al. that impeachment is a political action which cannot assume a judicial character. Hence, any question, issue or incident arising at any stage of the impeachment proceeding is beyond the reach of judicial review. 47 For his part, intervenor Senator Pimentel contends that the Senate's "sole power to try" impeachment cases 48 (1) entirely excludes the application of judicial review over it; and (2) necessarily includes the Senates power to determine constitutional questions relative to impeachment proceedings. 49 In furthering their arguments on the proposition that impeachment proceedings are outside the scope of judicial review, respondents Speaker De Venecia, et al. and intervenor Senator Pimentel rely heavily on American authorities, principally the majority opinion in the case of Nixon v. United States. 50 Thus, they contend that the exercise of judicial review over impeachment proceedings is inappropriate since it runs counter to the framers' decision to allocate to different fora the powers to try impeachments and to try crimes; it disturbs the system of checks and balances, under which impeachment is the only legislative check on the judiciary; and it would create a lack of finality and difficulty in fashioning relief. 51 Respondents likewise point to

deliberations on the US Constitution to show the intent to isolate judicial power of review in cases of impeachment.

Respondents' and intervenors' reliance upon American jurisprudence, the American Constitution and American authorities cannot be credited to support the proposition that the Senate's "sole power to try and decide impeachment cases," as provided for under Art. XI, Sec. 3(6) of the Constitution, is a textually demonstrable constitutional commitment of all issues pertaining to impeachment to the legislature, to the total exclusion of the power of judicial review to check and restrain any grave abuse of the impeachment process. Nor can it reasonably support the interpretation that it necessarily confers upon the Senate the inherently judicial power to determine constitutional questions incident to impeachment proceedings.
TEcAHI

Said American jurisprudence and authorities, much less the American Constitution, are of dubious application for these are no longer controlling within our jurisdiction and have only limited persuasive merit insofar as Philippine constitutional law is concerned. As held in the case of Garcia vs. COMELEC , 52 "[i]n resolving constitutional disputes, [this Court] should not be beguiled by foreign jurisprudence some of which are hardly applicable because they have been dictated by different constitutional settings and needs." 53 Indeed, although the Philippine Constitution can trace its origins to that of the United States, their paths of development have long since diverged. In the colorful words of Father Bernas, "[w]e have cut the umbilical cord."
DHacTC

The major difference between the judicial power of the Philippine Supreme Court and that of the U.S. Supreme Court is that while the power of judicial review is only impliedly granted to the U.S. Supreme Court and is discretionary in nature, that granted to the Philippine Supreme Court and lower courts, as expressly provided for in the Constitution, is not just a power but also a duty, and it was given an expanded definition to include the power to correct any grave abuse of discretion on the part of any government branch or instrumentality. There are also glaring distinctions between the U.S. Constitution and the Philippine Constitution with respect to the power of the House of Representatives over impeachment proceedings. While the U.S. Constitution bestows sole power of impeachment to the House of Representatives without limitation, 54 our Constitution, though vesting in the House of Representatives the exclusive power to initiate impeachment cases, 55 provides for several limitations to the exercise of such power as embodied in Section 3(2), (3), (4) and (5), Article XI thereof. These limitations include the manner of filing, required vote to impeach, and the one year bar on the impeachment of one and the same official.

Respondents are also of the view that judicial review of impeachments undermines their finality and may also lead to conflicts between Congress and the judiciary. Thus, they call upon this Court to exercise judicial statesmanship on the principle that "whenever possible, the Court should defer to the judgment of the people expressed legislatively, recognizing full well the perils of judicial willfulness and pride." 56 But did not the people also express their will when they instituted the above-mentioned safeguards in the Constitution? This shows that the Constitution did not intend to leave the matter of impeachment to the sole discretion of Congress. Instead, it provided for certain well-defined limits, or in the language of Baker v. Carr, 57 "judicially discoverable standards" for determining the validity of the exercise of such discretion, through the power of judicial review. The cases of Romulo v. Yniguez 58 and Alejandrino v. Quezon, 59 cited by respondents in support of the argument that the impeachment power is beyond the scope of judicial review, are not in point. These cases concern the denial of petitions for writs of mandamus to compel the legislature to perform non-ministerial acts, and do not concern the exercise of the power of judicial review. There is indeed a plethora of cases in which this Court exercised the power of judicial review over congressional action. Thus, in Santiago v. Guingona, Jr., 60 this Court ruled that it is well within the power and jurisdiction of the Court to inquire whether the Senate or its officials committed a violation of the Constitution or grave abuse of discretion in the exercise of their functions and prerogatives. In Taada v. Angara, 61 in seeking to nullify an act of the Philippine Senate on the ground that it contravened the Constitution, it held that the petition raises a justiciable controversy and that when an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. In Bondoc v. Pineda, 62 this Court declared null and void a resolution of the House of Representatives withdrawing the nomination, and rescinding the election, of a congressman as a member of the House Electoral Tribunal for being violative of Section 17, Article VI of the Constitution. In Coseteng v. Mitra, 63 it held that the resolution of whether the House representation in the Commission on Appointments was based on proportional representation of the political parties as provided in Section 18, Article VI of the Constitution is subject to judicial review. In Daza v. Singson, 64 it held that the act of the House of Representatives in removing the petitioner from the Commission on Appointments is subject to judicial review. In Taada v. Cuenco, 65 it held that although under the Constitution, the legislative power is vested exclusively in Congress, this does not detract from the power of the courts to pass upon the constitutionality of acts of Congress. In Angara v. Electoral Commission, 66 it ruled that confirmation by the National Assembly of the election of any member, irrespective of whether his election is contested, is not essential before such member-elect may discharge the duties and enjoy the privileges of a member of the National Assembly.

Finally, there exists no constitutional basis for the contention that the exercise of judicial review over impeachment proceedings would upset the system of checks and balances. Verily, the Constitution is to be interpreted as a whole and "one section is not to be allowed to defeat another." 67 Both are integral components of the calibrated system of independence and interdependence that insures that no branch of government act beyond the powers assigned to it by the Constitution.
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Essential Requisites for Judicial Review As clearly stated in Angara v. Electoral Commission, the courts' power of judicial review, like almost all powers conferred by the Constitution, is subject to several limitations, namely: (1) an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have "standing" to challenge; he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest possible opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.
. . . Even then, this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government. 68 (Italics in the original)

Standing Locus standi or legal standing or has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the question of standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions. 69 Intervenor Soriano, in praying for the dismissal of the petitions, contends that petitioners do not have standing since only the Chief Justice has sustained and will sustain direct

personal injury. Amicus curiae former Justice Minister and Solicitor General Estelito Mendoza similarly contends. Upon the other hand, the Solicitor General asserts that petitioners have standing since this Court had, in the past, accorded standing to taxpayers, voters, concerned citizens, legislators in cases involving paramount public interest 70 and transcendental importance, 71 and that procedural matters are subordinate to the need to determine whether or not the other branches of the government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them. 72 Amicus curiae Dean Raul Pangalangan of the U.P. College of Law is of the same opinion, citing transcendental importance and the well-entrenched rule exception that, when the real party in interest is unable to vindicate his rights by seeking the same remedies, as in the case of the Chief Justice who, for ethical reasons, cannot himself invoke the jurisdiction of this Court, the courts will grant petitioners standing.

There is, however, a difference between the rule on real-party-in-interest and the rule on standing, for the former is a concept of civil procedure 73 while the latter has constitutional underpinnings. 74 In view of the arguments set forth regarding standing, it behooves the Court to reiterate the ruling in Kilosbayan, Inc.v. Morato 75 to clarify what is meant by locus standi and to distinguish it from real party-in-interest.
The difference between the rule on standing and real party in interest has been noted by authorities thus: "It is important to note . . . that standing because of its constitutional and public policy underpinnings, is very different from questions relating to whether a particular plaintiff is the real party in interest or has capacity to sue. Although all three requirements are directed towards ensuring that only certain parties can maintain an action, standing restrictions require a partial consideration of the merits, as well as broader policy concerns relating to the proper role of the judiciary in certain areas. Standing is a special concern in constitutional law because in some cases suits are brought not by parties who have been personally injured by the operation of a law or by official action taken, but by concerned citizens, taxpayers or voters who actually sue in the public interest. Hence the question in standing is whether such parties have "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions."
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xxx xxx xxx

On the other hand, the question as to "real party in interest" is whether he is "the party who would be benefited or injured by the judgment, or the 'party entitled to the avails of the suit.'" 76 (Citations omitted)

While rights personal to the Chief Justice may have been injured by the alleged unconstitutional acts of the House of Representatives, none of the petitioners asserts a violation of the personal rights of the Chief Justice. On the contrary, they invariably invoke the vindication of their own rights as taxpayers; members of Congress; citizens, individually or in a class suit; and members of the bar and of the legal profession which were supposedly violated by the alleged unconstitutional acts of the House of Representatives. In a long line of cases, however, concerned citizens, taxpayers and legislators when specific requirements have been met have been given standing by this Court. When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of. 77 In fine, when the proceeding involves the assertion of a public right, 78 the mere fact that he is a citizen satisfies the requirement of personal interest. In the case of a taxpayer, he is allowed to sue where there is a claim that public funds are illegally disbursed, or that public money is being deflected to any improper purpose, or that there is a wastage of public funds through the enforcement of an invalid or unconstitutional law. 79 Before he can invoke the power of judicial review, however, he must specifically prove that he has sufficient interest in preventing the illegal expenditure of money raised by taxation and that he would sustain a direct injury as a result of the enforcement of the questioned statute or contract. It is not sufficient that he has merely a general interest common to all members of the public. 80 At all events, courts are vested with discretion as to whether or not a taxpayer's suit should be entertained. 81 This Court opted to grant standing to most of the petitioners, given their allegation that any impending transmittal to the Senate of the Articles of Impeachment and the ensuing trial of the Chief Justice will necessarily involve the expenditure of public funds. As for a legislator, he is allowed to sue to question the validity of any official action which he claims infringes his prerogatives as a legislator. 82 Indeed, a member of the

House of Representatives has standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in his office. 83 While an associationhas legal personality to represent its members, 84 especially when it is composed of substantial taxpayers and the outcome will affect their vital interests, 85 the mere invocation by the Integrated Bar of the Philippines or any member of the legal profession of the duty to preserve the rule of law and nothing more, although undoubtedly true, does not suffice to clothe it with standing. Its interest is too general. It is shared by other groups and the whole citizenry. However, a reading of the petition shows that it has advanced constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and weight as precedents. 86 It, therefore, behooves this Court to relax the rules on standing and to resolve the issues presented by it. In the same vein, when dealing with class suits filed in behalf of all citizens, persons intervening must be sufficiently numerous to fully protect the interests of all concerned 87 to enable the court to deal properly with all interests involved in the suit, 88 for a judgment in a class suit, whether favorable or unfavorable to the class, is, under the res judicata principle, binding on all members of the class whether or not they were before the court. 89 Where it clearly appears that not all interests can be sufficiently represented as shown by the divergent issues raised in the numerous petitions before this Court, G.R. No. 160365 as a class suit ought to fail. Since petitioners additionally allege standing as citizens and taxpayers, however, their petition will stand. The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground of transcendental importance, while Atty. Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his standing. There being no doctrinal definition of transcendental importance, the following determinants formulated by former Supreme Court Justice Florentino P. Feliciano are instructive: (1) the character of the funds or other assets involved in the case; (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; and (3) the lack of any other party with a more direct and specific interest in raising the questions being raised. 90 Applying these determinants, this Court is satisfied that the issues raised herein are indeed of transcendental importance. In not a few cases, this Court has in fact adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of transcendental significance to the people, as when the issues raised are of paramount importance to the public. 91 Such liberality does not, however, mean that the requirement that a party should have an interest in the matter is totally eliminated. A party must, at the very least, still plead the existence of such interest, it not being one of which courts can take judicial notice. In

petitioner Vallejos' case, he failed to allege any interest in the case. He does not thus have standing. With respect to the motions for intervention, Rule 19, Section 2 of the Rules of Court requires an intervenor to possess a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof. While intervention is not a matter of right, it may be permitted by the courts when the applicant shows facts which satisfy the requirements of the law authorizing intervention. 92 In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadras case, they seek to join petitioners Candelaria, et al. in G.R. No. 160262. Since, save for one additional issue, they raise the same issues and the same standing, and no objection on the part of petitioners Candelaria, et al. has been interposed, this Court as earlier stated, granted their Motion for Leave of Court to Intervene and Petition-in-Intervention. Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et al. sought to join petitioner Francisco in G.R. No. 160261. Invoking their right as citizens to intervene, alleging that "they will suffer if this insidious scheme of the minority members of the House of Representatives is successful," this Court found the requisites for intervention had been complied with. Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and 160310 are of transcendental importance, World War II Veterans Legionnaires of the Philippines, Inc. filed a "Petition-in-Intervention with Leave to Intervene" to raise the additional issue of whether or not the second impeachment complaint against the Chief Justice is valid and based on any of the grounds prescribed by the Constitution. Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et al. and World War II Veterans Legionnaires of the Philippines, Inc. possess a legal interest in the matter in litigation the respective motions to intervene were granted.

Senator Aquilino Pimentel, on the other hand, sought to intervene for the limited purpose of making of record and arguing a point of view that differs with Senate President Drilon's. He alleges that submitting to this Court's jurisdiction as the Senate President does will undermine the independence of the Senate which will sit as an impeachment court once the Articles of Impeachment are transmitted to it from the House of Representatives. Clearly, Senator Pimentel possesses a legal interest in the matter in litigation, he being a member of Congress against which the herein petitions are directed.

For this reason, and to fully ventilate all substantial issues relating to the matter at hand, his Motion to Intervene was granted and he was, as earlier stated, allowed to argue.
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Lastly, as to Jaime N. Soriano's motion to intervene, the same must be denied for, while he asserts an interest as a taxpayer, he failed to meet the standing requirement for bringing taxpayer's suits as set forth in Dumlao v. COMELEC, 93 to wit:
. . . While, concededly, the elections to be held involve the expenditure of public moneys, nowhere in their Petition do said petitioners allege that their tax money is "being extracted and spent in violation of specific constitutional protection against abuses of legislative power," or that there is a misapplication of such funds by respondent COMELEC, or that public money is being deflected to any improper purpose. Neither do petitioners seek to restrain respondent from wasting public funds through the enforcement of an invalid or unconstitutional law. 94 (Citations omitted)

In praying for the dismissal of the petitions, Soriano failed even to allege that the act of petitioners will result in illegal disbursement of public funds or in public money being deflected to any improper purpose. Additionally, his mere interest as a member of the Bar does not suffice to clothe him with standing. Ripeness and Prematurity In Tan v. Macapagal, 95 this Court, through Chief Justice Fernando, held that for a case to be considered ripe for adjudication, "it is a prerequisite that something had by then been accomplished or performed by either branch before a court may come into the picture." 96 Only then may the courts pass on the validity of what was done, if and when the matter is challenged in an appropriate legal proceeding. The instant petitions raise in the main the issue of the validity of the filing of the second impeachment complaint against the Chief Justice in accordance with the House Impeachment Rules adopted by the 12th Congress, the constitutionality of which is questioned. The questioned acts having been carried out, i.e., the second impeachment complaint had been filed with the House of Representatives and the 2001 Rules have already been already promulgated and enforced, the prerequisite that the alleged unconstitutional act should be accomplished and performed before suit, as Tan v. Macapagal holds, has been complied with. Related to the issue of ripeness is the question of whether the instant petitions are premature. Amicus curiae former Senate President Jovito R. Salonga opines that there may be no urgent need for this Court to render a decision at this time, it being the final arbiter on questions of constitutionality anyway. He thus recommends that all remedies in the House and Senate should first be exhausted.

Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law who suggests to this Court to take judicial notice of on-going attempts to encourage signatories to the second impeachment complaint to withdraw their signatures and opines that the House Impeachment Rules provide for an opportunity for members to raise constitutional questions themselves when the Articles of Impeachment are presented on a motion to transmit to the same to the Senate. The dean maintains that even assuming that the Articles are transmitted to the Senate, the Chief Justice can raise the issue of their constitutional infirmity by way of a motion to dismiss. The dean's position does not persuade. First, the withdrawal by the Representatives of their signatures would not, by itself, cure the House Impeachment Rules of their constitutional infirmity. Neither would such a withdrawal, by itself, obliterate the questioned second impeachment complaint since it would only place it under the ambit of Sections 3(2) and (3) of Article XI of the Constitution 97 and, therefore, petitioners would continue to suffer their injuries. Second and most importantly, the futility of seeking remedies from either or both Houses of Congress before coming to this Court is shown by the fact that, as previously discussed, neither the House of Representatives nor the Senate is clothed with the power to rule with definitiveness on the issue of constitutionality, whether concerning impeachment proceedings or otherwise, as said power is exclusively vested in the judiciary by the earlier quoted Section I, Article VIII of the Constitution. Remedy cannot be sought from a body which is bereft of power to grant it. Justiciability In the leading case of Taada v. Cuenco, 98 Chief Justice Roberto Concepcion defined the term "political question," viz:
[T]he term "political question" connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy. In other words, in the language of Corpus Juris Secundum, it refers to "those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government." It is concerned with issues dependent upon the wisdom, not legality, of a particular measure. 99 (Italics in the original)

Prior to the 1973 Constitution, without consistency and seemingly without any rhyme or reason, this Court vacillated on its stance of taking cognizance of cases which involved political questions. In some cases, this Court hid behind the cover of the political question doctrine and refused to exercise its power of judicial review. 100 In other cases, however, despite the seeming political nature of the therein issues involved, this Court assumed jurisdiction whenever it found constitutionally imposed limits on powers or functions

conferred upon political bodies. 101 Even in the landmark case of Javellana v. Executive Secretary 102 which raised the issue of whether the 1973 Constitution was ratified, hence, in force, this Court shunted the political question doctrine and took cognizance thereof. Ratification by the people of a Constitution is a political question, it being a question decided by the people in their sovereign capacity. The frequency with which this Court invoked the political question doctrine to refuse to take jurisdiction over certain cases during the Marcos regime motivated Chief Justice Concepcion, when he became a Constitutional Commissioner, to clarify this Court's power of judicial review and its application on issues involving political questions, viz:
MR. CONCEPCION. Thank you, Mr. Presiding Officer. I will speak on the judiciary. Practically, everybody has made, I suppose, the usual comment that the judiciary is the weakest among the three major branches of the service. Since the legislature holds the purse and the executive the sword, the judiciary has nothing with which to enforce its decisions or commands except the power of reason and appeal to conscience which, after all, reflects the will of God, and is the most powerful of all other powers without exception. . . . And so, with the bodys indulgence, I will proceed to read the provisions drafted by the Committee on the Judiciary. The first section starts with a sentence copied from former Constitutions. It says: The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. I suppose nobody can question it. The next provision is new in our constitutional law. I will read it first and explain. Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part or instrumentality of the government. Fellow Members of this Commission, this is actually a product of our experience during martial law. As a matter of fact, it has some antecedents in the past, but the role of the judiciary during the deposed regime was marred considerably by the circumstance that in a number of cases against the government, which then had no legal defense at all, the solicitor general set up the defense of political questions and got away with it. As a consequence, certain principles concerning particularly the writ of habeas corpus, that is, the

authority of courts to order the release of political detainees, and other matters related to the operation and effect of martial law failed because the government set up the defense of political question. And the Supreme Court said: "Well, since it is political, we have no authority to pass upon it." The Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did not merely request an encroachment upon the rights of the people, but it, in effect, encouraged further violations thereof during the martial law regime. I am sure the members of the Bar are familiar with this situation. But for the benefit of the Members of the Commission who are not lawyers, allow me to explain. I will start with a decision of the Supreme Court in 1973 on the case of Javellana vs. the Secretary of Justice, if I am not mistaken. Martial law was announced on September 22, although the proclamation was dated September 21. The obvious reason for the delay in its publication was that the administration had apprehended and detained prominent newsmen on September 21. So that when martial law was announced on September 22, the media hardly published anything about it. In fact, the media could not publish any story not only because our main writers were already incarcerated, but also because those who succeeded them in their jobs were under mortal threat of being the object of wrath of the ruling party. The 1971 Constitutional Convention had begun on June 1, 1971 and by September 21 or 22 had not finished the Constitution; it had barely agreed in the fundamentals of the Constitution. I forgot to say that upon the proclamation of martial law, some delegates to that 1971 Constitutional Convention, dozens of them, were picked up. One of them was our very own colleague, Commissioner Calderon. So, the unfinished draft of the Constitution was taken over by representatives of Malacaang. In 17 days, they finished what the delegates to the 1971 Constitutional Convention had been unable to accomplish for about 14 months. The draft of the 1973 Constitution was presented to the President around December 1, 1972, whereupon the President issued a decree calling a plebiscite which suspended the operation of some provisions in the martial law decree which prohibited discussions, much less public discussions of certain matters of public concern. The purpose was presumably to allow a free discussion on the draft of the Constitution on which a plebiscite was to be held sometime in January 1973. If I may use a word famous by our colleague, Commissioner Ople, during the interregnum, however, the draft of the Constitution was analyzed and criticized with such a telling effect that Malacaang felt the danger of its approval. So, the President suspended indefinitely the holding of the plebiscite and announced that he would consult the people in a referendum to be held from January 10 to January 15. But the questions to be submitted in the referendum were not announced until the eve of its scheduled beginning, under the supposed supervision not of the Commission on Elections, but of what was then designated as "citizens assemblies or barangays." Thus the barangays came into existence. The questions to be propounded were released with proposed answers thereto, suggesting that it was unnecessary to hold a plebiscite because the answers given in the referendum should be regarded as the votes cast in the plebiscite. Thereupon, a motion was filed with the Supreme

Court praying that the holding of the referendum be suspended. When the motion was being heard before the Supreme Court, the Minister of Justice delivered to the Court a proclamation of the President declaring that the new Constitution was already in force because the overwhelming majority of the votes cast in the referendum favored the Constitution. Immediately after the departure of the Minister of Justice, I proceeded to the session room where the case was being heard. I then informed the Court and the parties the presidential proclamation declaring that the 1973 Constitution had been ratified by the people and is now in force.

A number of other cases were filed to declare the presidential proclamation null and void. The main defense put up by the government was that the issue was a political question and that the court had no jurisdiction to entertain the case. xxx xxx xxx The government said that in a referendum held from January 10 to January 15, the vast majority ratified the draft of the Constitution. Note that all members of the Supreme Court were residents of Manila, but none of them had been notified of any referendum in their respective places of residence, much less did they participate in the alleged referendum. None of them saw any referendum proceeding. In the Philippines, even local gossips spread like wild fire. So, a majority of the members of the Court felt that there had been no referendum. Second, a referendum cannot substitute for a plebiscite. There is a big difference between a referendum and a plebiscite. But another group of justices upheld the defense that the issue was a political question. Whereupon, they dismissed the case. This is not the only major case in which the plea of "political question" was set up. There have been a number of other cases in the past. . . . The defense of the political question was rejected because the issue was clearly justiciable. xxx xxx xxx . . . When your Committee on the Judiciary began to perform its functions, it faced the following questions: What is judicial power? What is a political question? The Supreme Court, like all other courts, has one main function: to settle actual controversies involving conflicts of rights which are demandable and enforceable. There are rights which are guaranteed by law but cannot be

enforced by a judiciary party. In a decided case, a husband complained that his wife was unwilling to perform her duties as a wife. The Court said: "We can tell your wife what her duties as such are and that she is bound to comply with them, but we cannot force her physically to discharge her main marital duty to her husband. There are some rights guaranteed by law, but they are so personal that to enforce them by actual compulsion would be highly derogatory to human dignity." This is why the first part of the second paragraph of Section I provides that: Judicial power includes the duty of courts to settle actual controversies involving rights which are legally demandable or enforceable . . . The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a presidential system of government, the Supreme Court has, also another important function. The powers of government are generally considered divided into three branches: the Legislative, the Executive and the Judiciary. Each one is supreme within its own sphere and independent of the others. Because of that supremacy power to determine whether a given law is valid or not is vested in courts of justice. Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature. This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute a political question. I have made these extended remarks to the end that the Commissioners may have an initial food for thought on the subject of the judiciary. 103 (Italics in the original; emphasis supplied)

During the deliberations of the Constitutional Commission, Chief Justice Concepcion further clarified the concept of judicial power, thus:
MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial power is not vested in the Supreme Court alone but also in other lower courts as may be created by law. MR. CONCEPCION. Yes.

MR. NOLLEDO. And so, is this only an example? MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify political questions with jurisdictional questions. But there is a difference. MR. NOLLEDO. Because of the expression "judicial power"? MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but where there is a question as to whether the government had authority or had abused its authority to the extent of lacking jurisdiction or excess of jurisdiction, that is not a political question. Therefore, the court has the duty to decide. xxx xxx xxx FR. BERNAS. Ultimately, therefore, it will always have to be decided by the Supreme Court according to the new numerical need for votes. On another point, is it the intention of Section 1 to do away with the political question doctrine? MR. CONCEPCION. No. FR. BERNAS. It is not. MR. CONCEPCION. No, because whenever there is an abuse of discretion, amounting to a lack of jurisdiction . . . FR. BERNAS. So, I am satisfied with the answer that it is not intended to do away with the political question doctrine. MR. CONCEPCION. No, certainly not. When this provision was originally drafted, it sought to define what is judicial power. But the Gentleman will notice it says, "judicial power includes" and the reason being that the definition that we might make may not cover all possible areas. FR. BERNAS. So, this is not an attempt to solve the problems arising from the political question doctrine. MR. CONCEPCION. It definitely does not eliminate the fact that truly political questions are beyond the pale of judicial power. 104 (Emphasis supplied)

From the foregoing record of the proceedings of the 1986 Constitutional Commission, it is clear that judicial power is not only a power; it is also a duty, a duty which cannot be abdicated by the mere specter of this creature called the political question doctrine. Chief

Justice Concepcion hastened to clarify, however, that Section 1, Article VIII was not intended to do away with "truly political questions." From this clarification it is gathered that there are two species of political questions: (1) "truly political questions" and (2) those which "are not truly political questions." Truly political questions are thus beyond judicial review, the reason being that respect for the doctrine of separation of powers must be maintained. On the other hand, by virtue of Section 1, Article VIII of the Constitution, courts can review questions which are not truly political in nature. As pointed out by amicus curiae former dean Pacifico Agabin of the UP College of Law, this Court has in fact in a number of cases taken jurisdiction over questions which are not truly political following the effectivity of the present Constitution. In Marcos v. Manglapus, 105 this Court, speaking through Madame Justice Irene Cortes, held:
The present Constitution limits resort to the political question doctrine and broadens the scope of judicial inquiry into areas which the Court, under previous constitutions, would have normally left to the political departments to decide. 106 . . .

In Bengzon v. Senate Blue Ribbon Committee, 107 through Justice Teodoro Padilla, this Court declared:
The "allocation of constitutional boundaries" is a task that this Court must perform under the Constitution. Moreover, as held in a recent case, "(t)he political question doctrine neither interposes an obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot abdicate that obligation mandated by the 1987 Constitution, although said provision by no means does away with the applicability of the principle in appropriate cases." 108 (Emphasis and italics supplied)

And in Daza v. Singson, 109 speaking through Justice Isagani Cruz, this Court ruled:
In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even if we were to assume that the issue presented before us was political in nature, we would still not be precluded from resolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political question. 110 . . . (Emphasis and italics supplied.)

Section 1, Article VIII, of the Court does not define what are justiciable political questions and non-justiciable political questions, however. Identification of these two

species of political questions may be problematic. There has been no clear standard. The American case of Baker v. Carr 111 attempts to provide some:
. . . Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a courts undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for questioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. 112 (emphasis supplied)

Of these standards, the more reliable have been the first three: (1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; (2) the lack of judicially discoverable and manageable standards for resolving it; and (3) the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion. These standards are not separate and distinct concepts but are interrelated to each in that the presence of one strengthens the conclusion that the others are also present.

The problem in applying the foregoing standards is that the American concept of judicial review is radically different from our current concept, for Section 1, Article VIII of the Constitution provides our courts with far less discretion in determining whether they should pass upon a constitutional issue. In our jurisdiction, the determination of a truly political question from a non-justiciable political question lies in the answer to the question of whether there are constitutionally imposed limits on powers or functions conferred upon political bodies. If there are, then our courts are duty-bound to examine whether the branch or instrumentality of the government properly acted within such limits. This Court shall thus now apply this standard to the present controversy. These petitions raise five substantial issues:
I.Whether the offenses alleged in the Second impeachment complaint constitute valid impeachable offenses under the Constitution. II.Whether the second impeachment complaint was filed in accordance with Section 3(4), Article XI of the Constitution.

III.Whether the legislative inquiry by the House Committee on Justice into the Judicial Development Fund is an unconstitutional infringement of the constitutionally mandated fiscal autonomy of the judiciary. IV.Whether Sections 15 and 16 of Rule V of the Rules on Impeachment adopted by the 12th Congress are unconstitutional for violating the provisions of Section 3, Article XI of the Constitution. V.Whether the second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution.

The first issue goes into the merits of the second impeachment complaint over which this Court has no jurisdiction. More importantly, any discussion of this issue would require this Court to make a determination of what constitutes an impeachable offense. Such a determination is a purely political question which the Constitution has left to the sound discretion of the legislation. Such an intent is clear from the deliberations of the Constitutional Commission. 113 Although Section 2 of Article XI of the Constitution enumerates six grounds for impeachment, two of these, namely, other high crimes and betrayal of public trust, elude a precise definition. In fact, an examination of the records of the 1986 Constitutional Commission shows that the framers could find no better way to approximate the boundaries of betrayal of public trust and other high crimes than by alluding to both positive and negative examples of both, without arriving at their clear cut definition or even a standard therefor. 114 Clearly, the issue calls upon this court to decide a nonjusticiable political question which is beyond the scope of its judicial power under Section 1, Article VIII. Lis Mota It is a well-settled maxim of adjudication that an issue assailing the constitutionality of a governmental act should be avoided whenever possible. Thus, in the case of Sotto v. Commission on Elections, 115 this Court held:
. . . It is a well-established rule that a court should not pass upon a constitutional question and decide a law to be unconstitutional or invalid, unless such question is raised by the parties and that when it is raised, if the record also presents some other ground upon which the court may rest its judgment, that course will be adopted and the constitutional question will be left for consideration until a case arises in which a decision upon such question will be unavoidable. 116 [Emphasis and italics supplied]

The same principle was applied in Luz Farms v. Secretary of Agrarian Reform, 117 where this Court invalidated Sections 13 and 32 of Republic Act No. 6657 for being confiscatory and violative of due process, to wit:

It has been established that this Court will assume jurisdiction over a constitutional question only if it is shown that the essential requisites of a judicial inquiry into such a question are first satisfied. Thus, there must be an actual case or controversy involving a conflict of legal rights susceptible of judicial determination, the constitutional question must have been opportunely raised by the proper party, and the resolution of the question is unavoidably necessary to the decision of the case itself . 118 [Emphasis supplied]

Succinctly put, courts will not touch the issue of constitutionality unless it is truly unavoidable and is the very lis mota or crux of the controversy. As noted earlier, the instant consolidated petitions, while all seeking the invalidity of the second impeachment complaint, collectively raise several constitutional issues upon which the outcome of this controversy could possibly be made to rest. In determining whether one, some or all of the remaining substantial issues should be passed upon, this Court is guided by the related cannon of adjudication that "the court should not form a rule of constitutional law broader than is required by the precise facts to which it is applied." 119 In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among other reasons, the second impeachment complaint is invalid since it directly resulted from a Resolution 120 calling for a legislative inquiry into the JDF, which Resolution and legislative inquiry petitioners claim to likewise be unconstitutional for being: (a) a violation of the rules and jurisprudence on investigations in aid of legislation; (b) an open breach of the doctrine of separation of powers; (c) a violation of the constitutionally mandated fiscal autonomy of the judiciary; and (d) an assault on the independence of the judiciary. 121 Without going into the merits of petitioners Alfonso, et al.'s claims, it is the studied opinion of this Court that the issue of the constitutionality of the said Resolution and resulting legislative inquiry is too far removed from the issue of the validity of the second impeachment complaint. Moreover, the resolution of said issue would, in the Court's opinion, require it to form a rule of constitutional law touching on the separate and distinct matter of legislative inquiries in general, which would thus be broader than is required by the facts of these consolidated cases. This opinion is further strengthened by the fact that said petitioners have raised other grounds in support of their petition which would not be adversely affected by the Court's ruling. En passant, this Court notes that a standard for the conduct of legislative inquiries has already been enunciated by this Court in Bengzon, Jr. v. Senate Blue Ribbon Committee, 122 viz:

The 1987 Constitution expressly recognizes the power of both houses of Congress to conduct inquiries in aid of legislation. Thus, Section 21, Article VI thereof provides: The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. The power of both houses of Congress to conduct inquiries in aid of legislation is not, therefore absolute or unlimited. Its exercise is circumscribed by the afore-quoted provision of the Constitution. Thus, as provided therein, the investigation must be "in aid of legislation in accordance with its duly published rules of procedure" and that "the rights of persons appearing in or affected by such inquiries shall be respected." It follows then that the rights of persons under the Bill of Rights must be respected, including the right to due process and the right not be compelled to testify against one's self. 123

In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino Quadra, while joining the original petition of petitioners Candelaria, et al., introduce the new argument that since the second impeachment complaint was verified and filed only by Representatives Gilberto Teodoro, Jr. and Felix William Fuentebella, the same does not fall under the provision of Section 3 (4), Article XI of the Constitution which reads:
Section 3(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.

They assert that while at least 81 members of the House of Representatives signed a Resolution of Endorsement/Impeachment, the same did not satisfy the requisites for the application of the afore-mentioned section in that the "verified complaint or resolution of impeachment" was not filed "by at least one-third of all the Members of the House." With the exception of Representatives Teodoro and Fuentebella, the signatories to said Resolution are alleged to have verified the same merely as a "Resolution of Endorsement." Intervenors point to the "Verification" of the Resolution of Endorsement which states that:
"We are the proponents/sponsors of the Resolution of Endorsement of the abovementioned Complaint of Representatives Gilberto Teodoro and Felix William B. Fuentebella . . . 124

Intervenors Macalintal and Quadra further claim that what the Constitution requires in order for said second impeachment complaint to automatically become the Articles of Impeachment and for trial in the Senate to begin "forthwith," is that the verified complaint be "filed," not merely endorsed, by at least one-third of the Members of the

House of Representatives. Not having complied with this requirement, they concede that the second impeachment complaint should have been calendared and referred to the House Committee on Justice under Section 3(2), Article XI of the Constitution, viz:
Section 3(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof.

Intervenors' foregoing position is echoed by Justice Maambong who opined that for Section 3 (4), Article XI of the Constitution to apply, there should be 76 or more representatives who signed and verified the second impeachment complaint as complainants, signed and verified the signatories to a resolution of impeachment. Justice Maambong likewise asserted that the Resolution of Endorsement/Impeachment signed by at least one-third of the members of the House of Representatives as endorsers is not the resolution of impeachment contemplated by the Constitution, such resolution of endorsement being necessary only from at least one Member whenever a citizen files a verified impeachment complaint. While the foregoing issue, as argued by intervenors Macalintal and Quadra, does indeed limit the scope of the constitutional issues to the provisions on impeachment, more compelling considerations militate against its adoption as the lis mota or crux of the present controversy. Chief among this is the fact that only Attorneys Macalintal and Quadra, intervenors in G.R. No. 160262, have raised this issue as a ground for invalidating the second impeachment complaint. Thus, to adopt this additional ground as the basis for deciding the instant consolidated petitions would not only render for naught the efforts of the original petitioners in G.R. No. 160262, but the efforts presented by the other petitioners as well. Again, the decision to discard the resolution of this issue as unnecessary for the determination of the instant cases is made easier by the fact that said intervenors Macalintal and Quadra have joined in the petition of Candelaria, et al., adopting the latter's arguments and issues as their own. Consequently, they are not unduly prejudiced by this Court's decision. In sum, this Court holds that the two remaining issues, inextricably linked as they are, constitute the very lis mota of the instant controversy: (1) whether Sections 15 and 16 of

Rule V of the House Impeachment Rules adopted by the 12th Congress are unconstitutional for violating the provisions of Section 3, Article XI of the Constitution; and (2) whether, as a result thereof, the second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution. Judicial Restraint Senator Pimentel urges this Court to exercise judicial restraint on the ground that the Senate, sitting as an impeachment court, has the sole power to try and decide all cases of impeachment. Again, this Court reiterates that the power of judicial review includes the power of review over justiciable issues in impeachment proceedings. On the other hand, respondents Speaker De Venecia et al. argue that "[t]here is a moral compulsion for the Court to not assume jurisdiction over the impeachment because all the Members thereof are subject to impeachment." 125 But this argument is very much like saying the Legislature has a moral compulsion not to pass laws with penalty clauses because Members of the House of Representatives are subject to them. The exercise of judicial restraint over justiciable issues is not an option before this Court. Adjudication may not be declined, because this Court is not legally disqualified. Nor can jurisdiction be renounced as there is no other tribunal to which the controversy may be referred." 126 Otherwise, this Court would be shirking from its duty vested under Art. VIII, Sec. 1(2) of the Constitution. More than being clothed with authority thus, this Court is duty-bound to take cognizance of the instant petitions. 127 In the august words of amicus curiae Father Bernas, "jurisdiction is not just a power; it is a solemn duty which may not be renounced. To renounce it, even if it is vexatious, would be a dereliction of duty." Even in cases where it is an interested party, the Court under our system of government cannot inhibit itself and must rule upon the challenge because no other office has the authority to do so. 128 On the occasion that this Court had been an interested party to the controversy before it, it has acted upon the matter "not with officiousness but in the discharge of an unavoidable duty and, as always, with detachment and fairness." 129 After all, "by [his] appointment to the office, the public has laid on [a member of the judiciary] their confidence that [he] is mentally and morally fit to pass upon the merits of their varied contentions. For this reason, they expect [him] to be fearless in [his] pursuit to render justice, to be unafraid to displease any person, interest or power and to be equipped with a moral fiber strong enough to resist the temptations lurking in [his] office." 130 The duty to exercise the power of adjudication regardless of interest had already been settled in the case of Abbas v. Senate Electoral Tribunal. 131 In that case, the petitioners filed with the respondent Senate Electoral Tribunal a Motion for Disqualification or

Inhibition of the Senators-Members thereof from the hearing and resolution of SET Case No. 002-87 on the ground that all of them were interested parties to said case as respondents therein. This would have reduced the Tribunal's membership to only its three Justices-Members whose disqualification was not sought, leaving them to decide the matter. This Court held:
Where, as here, a situation is created which precludes the substitution of any Senator sitting in the Tribunal by any of his other colleagues in the Senate without inviting the same objections to the substitute's competence, the proposed mass disqualification, if sanctioned and ordered, would leave the Tribunal no alternative but to abandon a duty that no other court or body can perform, but which it cannot lawfully discharge if shorn of the participation of its entire membership of Senators. To our mind, this is the overriding consideration that the Tribunal be not prevented from discharging a duty which it alone has the power to perform, the performance of which is in the highest public interest as evidenced by its being expressly imposed by no less than the fundamental law. It is aptly noted in the first of the questioned Resolutions that the framers of the Constitution could not have been unaware of the possibility of an election contest that would involve all Senators elect, six of whom would inevitably have to sit in judgment thereon. Indeed, such possibility might surface again in the wake of the 1992 elections when once more, but for the last time, all 24 seats in the Senate will be at stake. Yet the Constitution provides no scheme or mode for settling such unusual situations or for the substitution of Senators designated to the Tribunal whose disqualification may be sought. Litigants in such situations must simply place their trust and hopes of vindication in the fairness and sense of justice of the Members of the Tribunal. Justices and Senators, singly and collectively. Let us not be misunderstood as saying that no Senator-Member of the Senate Electoral Tribunal may inhibit or disqualify himself from sitting in judgment on any case before said Tribunal. Every Member of the Tribunal may, as his conscience dictates, refrain from participating in the resolution of a case where he sincerely feels that his personal interests or biases would stand in the way of an objective and impartial judgment. What we are merely saying is that in the light of the Constitution, the Senate Electoral Tribunal cannot legally function as such, absent its entire membership of Senators and that no amendment of its Rules can confer on the three Justices-Members alone the power of valid adjudication of a senatorial election contest.

More recently in the case of Estrada v. Desierto, 132 it was held that:
Moreover, to disqualify any of the members of the Court, particularly a majority of them, is nothing short of pro tanto depriving the Court itself of its jurisdiction

as established by the fundamental law. Disqualification of a judge is a deprivation of his judicial power. And if that judge is the one designated by the Constitution to exercise the jurisdiction of his court, as is the case with the Justices of this Court, the deprivation of his or their judicial power is equivalent to the deprivation of the judicial power of the court itself. It affects the very heart of judicial independence. The proposed mass disqualification, if sanctioned and ordered, would leave the Court no alternative but to abandon a duty which it cannot lawfully discharge if shorn of the participation of its entire membership of Justices. 133 (Italics in the original; emphasis supplied)

Besides, there are specific safeguards already laid down by the Court when it exercises its power of judicial review. In Demetria v. Alba, 134 this Court, through Justice Marcelo Fernan cited the "seven pillars" of limitations of the power of judicial review, enunciated by US Supreme Court Justice Brandeis in Ashwander v. TVA 135 as follows:
1.The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary proceeding, declining because to decide such questions 'is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.' 2.The Court will not 'anticipate a question of constitutional law in advance of the necessity of deciding it.' . . . 'It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.' 3.The Court will not 'formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.' 4.The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. Appeals from the highest court of a state challenging its decision of a question under the Federal Constitution are frequently dismissed because the judgment can be sustained on an independent state ground.

5.The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right. Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained . . . In Fairchild v. Hughes, the Court affirmed the dismissal of a suit brought by a citizen who sought to have the Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon, the challenge of the federal Maternity Act was not entertained although made by the Commonwealth on behalf of all its citizens. 6.The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits. 7.When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided (citations omitted).

The foregoing "pillars" of limitation of judicial review, summarized in Ashwander v. TVA from different decisions of the United States Supreme Court, can be encapsulated into the following categories:
1.that there be absolute necessity of deciding a case 2.that rules of constitutional law shall be formulated only as required by the facts of the case 3.that judgment may not be sustained on some other ground 4.that there be actual injury sustained by the party by reason of the operation of the statute 5.that the parties are not in estoppel 6.that the Court upholds the presumption of constitutionality.

As stated previously, parallel guidelines have been adopted by this Court in the exercise of judicial review:
1.actual case or controversy calling for the exercise of judicial power 2.the person challenging the act must have "standing" to challenge; he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement

3.the question of constitutionality must be raised at the earliest possible opportunity 4.the issue of constitutionality must be the very lis mota of the case. 136

Respondents Speaker de Venecia, et al. raise another argument for judicial restraint the possibility that "judicial review of impeachments might also lead to embarrassing conflicts between the Congress and the [J]udiciary." They stress the need to avoid the appearance of impropriety or conflicts of interest in judicial hearings, and the scenario that it would be confusing and humiliating and risk serious political instability at home and abroad if the judiciary countermanded the vote of Congress to remove an impeachable official. 137 Intervenor Soriano echoes this argument by alleging that failure of this Court to enforce its Resolution against Congress would result in the diminution of its judicial authority and erode public confidence and faith in the judiciary. Such an argument, however, is specious, to say the least. As correctly stated by the Solicitor General, the possibility of the occurrence of a constitutional crisis is not a reason for this Court to refrain from upholding the Constitution in all impeachment cases. Justices cannot abandon their constitutional duties just because their action may start, if not precipitate, a crisis. Justice Feliciano warned against the dangers when this Court refuses to act.
. . . Frequently, the fight over a controversial legislative or executive act is not regarded as settled until the Supreme Court has passed upon the constitutionality of the act involved, the judgment has not only juridical effects but also political consequences. Those political consequences may follow even where the Court fails to grant the petitioner's prayer to nullify an act for lack of the necessary number of votes. Frequently, failure to act explicitly, one way or the other, itself constitutes a decision for the respondent and validation, or at least quasi-validation, follows." 138

Thus, in Javellana v. Executive Secretary 139 where this Court was split and "in the end there were not enough votes either to grant the petitions, or to sustain respondent's claims," 140 the pre-existing constitutional order was disrupted which paved the way for the establishment of the martial law regime. Such an argument by respondents and intervenor also presumes that the coordinate branches of the government would behave in a lawless manner and not do their duty under the law to uphold the Constitution and obey the laws of the land. Yet there is no reason to believe that any of the branches of government will behave in a precipitate manner and risk social upheaval, violence, chaos and anarchy by encouraging disrespect for the fundamental law of the land.

Substituting the word public officers for judges, this Court is well guided by the doctrine in People v. Veneracion, to wit: 141
Obedience to the rule of law forms the bedrock of our system of justice. If [public officers], under the guise of religious or political beliefs were allowed to roam unrestricted beyond boundaries within which they are required by law to exercise the duties of their office, then law becomes meaningless. A government of laws, not of men excludes the exercise of broad discretionary powers by those acting under its authority. Under this system, [public officers] are guided by the Rule of Law, and ought "to protect and enforce it without fear or favor," resist encroachments by governments, political parties, or even the interference of their own personal beliefs. 142

Constitutionality of the Rules of Procedure for Impeachment Proceedings adopted by the 12th Congress Respondent House of Representatives, through Speaker De Venecia, argues that Sections 16 and 17 of Rule V of the House Impeachment Rules do not violate Section 3 (5) of Article XI of our present Constitution, contending that the term "initiate" does not mean "to file;" that Section 3 (1) is clear in that it is the House of Representatives, as a collective body, which has the exclusive power to initiate all cases of impeachment; that initiate could not possibly mean "to file" because filing can, as Section 3 (2), Article XI of the Constitution provides, only be accomplished in 3 ways, to wit: (1) by a verified complaint for impeachment by any member of the House of Representatives; or (2) by any citizen upon a resolution of endorsement by any member; or (3) by at least 1/3 of all the members of the House. Respondent House of Representatives concludes that the one year bar prohibiting the initiation of impeachment proceedings against the same officials could not have been violated as the impeachment complaint against Chief Justice Davide and seven Associate Justices had not been initiated as the House of Representatives, acting as the collective body, has yet to act on it. The resolution of this issue thus hinges on the interpretation of the term "initiate." Resort to statutory construction is, therefore, in order. That the sponsor of the provision of Section 3(5) of the Constitution, Commissioner Florenz Regalado, who eventually became an Associate Justice of this Court, agreed on the meaning of "initiate" as "to file," as proffered and explained by Constitutional Commissioner Maambong during the Constitutional Commission proceedings, which he (Commissioner Regalado) as amicus curiae affirmed during the oral arguments on the instant petitions held on November 5, 2003 at which he added that the act of "initiating" included the act of taking initial action on the complaint, dissipates any doubt that indeed the word "initiate" as it twice appears in Article XI (3) and (5) of the Constitution means to file the complaint and take initial action on it.

"Initiate" of course is understood by ordinary men to mean, as dictionaries do, to begin, to commence, or set going. As Webster's Third New International Dictionary of the English Language concisely puts it, it means "to perform or facilitate the first action," which jibes with Justice Regalado's position, and that of Father Bernas, who elucidated during the oral arguments of the instant petitions on November 5, 2003 in this wise:
Briefly then, an impeachment proceeding is not a single act. It is a complexus of acts consisting of a beginning, a middle and an end. The end is the transmittal of the articles of impeachment to the Senate. The middle consists of those deliberative moments leading to the formulation of the articles of impeachment. The beginning or the initiation is the filing of the complaint and its referral to the Committee on Justice. Finally, it should be noted that the House Rule relied upon by Representatives Cojuangco and Fuentebella says that impeachment is "deemed initiated" when the Justice Committee votes in favor of impeachment or when the House reverses a contrary vote of the Committee. Note that the Rule does not say "impeachment proceedings" are initiated but rather are "deemed initiated. The language is recognition that initiation happened earlier, but by legal fiction there is an attempt to postpone it to a time after actual initiation. (Emphasis and italics supplied)

As stated earlier, one of the means of interpreting the Constitution is looking into the intent of the law. Fortunately, the intent of the framers of the 1987 Constitution can be pried from its records:
MR. MAAMBONG. With reference to Section 3, regarding the procedure and the substantive provisions on impeachment, I understand there have been many proposals and, I think, these would need some time for Committee action. However, I would just like to indicate that I submitted to the Committee a resolution on impeachment proceedings, copies of which have been furnished the Members of this body. This is borne out of my experience as a member of the Committee on Justice, Human Rights and Good Government which took charge of the last impeachment resolution filed before the First Batasang Pambansa. For the information of the Committee, the resolution covers several steps in the impeachment proceedings starting with initiation, action of the Speaker committee action, calendaring of report, voting on the report, transmittal referral to the Senate, trial and judgment by the Senate.

xxx xxx xxx MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the approval of the amendment submitted by Commissioner

Regalado, but I will just make of record my thinking that we do not really initiate the filing of the Articles of Impeachment on the floor. The procedure, as I have pointed out earlier, was that the initiation starts with the filing of the complaint. And what is actually done on the floor is that the committee resolution containing the Articles of Impeachment is the one approved by the body. As the phraseology now runs, which may be corrected by the Committee on Style, it appears that the initiation starts on the floor. If we only have time, I could cite examples in the case of the impeachment proceedings of President Richard Nixon wherein the Committee on the Judiciary submitted the recommendation, the resolution, and the Articles of Impeachment to the body, and it was the body who approved the resolution. It is not the body which initiates it. It only approves or disapproves the resolution. So, on that score, probably the Committee on Style could help in rearranging these words because we have to be very technical about this. I have been bringing with me The Rules of the House of Representatives of the U.S. Congress. The Senate Rules are with me. The proceedings on the case of Richard Nixon are with me. I have submitted my proposal, but the Committee has already decided. Nevertheless, I just want to indicate this on record. xxx xxx xxx MR. MAAMBONG. I would just like to move for a reconsideration of the approval of Section 3 (3). My reconsideration will not at all affect the substance, but it is only in keeping with the exact formulation of the Rules of the House of Representatives of the United States regarding impeachment. I am proposing, Madam President, without doing damage to any of this provision, that on page 2, Section 3 (3), from lines 17 to 18, we delete the words which read: "to initiate impeachment proceedings" and the comma (,) and insert on line 19 after the word "resolution" the phrase WITH THE ARTICLES, and then capitalize the letter "i" in "impeachment" and replace the word "by" with OF, so that the whole section will now read: "A vote of at least one-third of all the Members of the House shall be necessary either to affirm a resolution WITH THE ARTICLES of Impeachment OF the Committee or to override its contrary resolution. The vote of each Member shall be recorded." I already mentioned earlier yesterday that the initiation, as far as the House of Representatives of the United States is concerned, really starts from the filing of the verified complaint and every resolution to impeach always carries with it the Articles of Impeachment. As a matter of fact, the words "Articles of Impeachment" are mentioned on line 25 in the case of the direct filing of a verified complaint of one-third of all the Members of the House. I will mention again, Madam President, that my amendment will not vary the substance in any way. It is only in keeping with the uniform procedure of the House of

Representatives of the United States Congress. Thank you, Madam President. 143 (Italics in the original; emphasis and italics supplied)

This amendment proposed by Commissioner Maambong was clarified and accepted by the Committee on the Accountability of Public Officers. 144 It is thus clear that the framers intended "initiation" to start with the filing of the complaint. In his amicus curiae brief, Commissioner Maambong explained that "the obvious reason in deleting the phrase "to initiate impeachment proceedings" as contained in the text of the provision of Section 3 (3) was to settle and make it understood once and for all that the initiation of impeachment proceedings starts with the filing of the complaint, and the vote of one-third of the House in a resolution of impeachment does not initiate the impeachment proceedings which was already initiated by the filing of a verified complaint under Section 3, paragraph (2), Article XI of the Constitution." 145 Amicus curiae Constitutional Commissioner Regalado is of the same view as is Father Bernas, who was also a member of the 1986 Constitutional Commission, that the word "initiate" as used in Article XI, Section 3(5) means to file, both adding, however, that the filing must be accompanied by an action to set the complaint moving. During the oral arguments before this Court, Father Bernas clarified that the word "initiate," appearing in the constitutional provision on impeachment, viz:
Section 3 (1).The House of Representatives shall have the exclusive power to initiate all cases of impeachment. xxx xxx xxx (5)No impeachment proceedings shall be initiated against the same official more than once within a period of one year, (Emphasis supplied)

refers to two objects, "impeachment case" and "impeachment proceeding." Father Bernas explains that in these two provisions, the common verb is "to initiate." The object in the first sentence is "impeachment case." The object in the second sentence is "impeachment proceeding." Following the principle of reddendo singuala sinuilis, the term "cases" must be distinguished from the term "proceedings." An impeachment case is the legal controversy that must be decided by the Senate. Above-quoted first provision provides that the House, by a vote of one-third of all its members, can bring a case to the Senate. It is in that sense that the House has "exclusive power" to initiate all cases of impeachment. No other body can do it. However, before a decision is made to initiate a case in the Senate, a "proceeding" must be followed to arrive at a conclusion. A proceeding must be "initiated." To initiate, which comes from the Latin word initium, means to begin. On the other hand, proceeding is a progressive noun. It has a beginning, a

middle, and an end. It takes place not in the Senate but in the House and consists of several steps: (1) there is the filing of a verified complaint either by a Member of the House of Representatives or by a private citizen endorsed by a Member of the House of the Representatives; (2) there is the processing of this complaint by the proper Committee which may either reject the complaint or uphold it; (3) whether the resolution of the Committee rejects or upholds the complaint, the resolution must be forwarded to the House for further processing; and (4) there is the processing of the same complaint by the House of Representatives which either affirms a favorable resolution of the Committee or overrides a contrary resolution by a vote of one-third of all the members. If at least one third of all the Members upholds the complaint, Articles of Impeachment are prepared and transmitted to the Senate. It is at this point that the House "initiates an impeachment case." It is at this point that an impeachable public official is successfully impeached. That is, he or she is successfully charged with an impeachment "case" before the Senate as impeachment court. Father Bernas further explains: The "impeachment proceeding" is not initiated when the complaint is transmitted to the Senate for trial because that is the end of the House proceeding and the beginning of another proceeding, namely the trial. Neither is the "impeachment proceeding" initiated when the House deliberates on the resolution passed on to it by the Committee, because something prior to that has already been done. The action of the House is already a further step in the proceeding, not its initiation or beginning. Rather, the proceeding is initiated or begins, when a verified complaint is filed and referred to the Committee on Justice for action. This is the initiating step which triggers the series of steps that follow. The framers of the Constitution also understood initiation in its ordinary meaning. Thus when a proposal reached the floor proposing that "A vote of at least one-third of all the Members of the House shall be necessary . . . to initiate impeachment proceedings," this was met by a proposal to delete the line on the ground that the vote of the House does not initiate impeachment proceeding but rather the filing of a complaint does. 146 Thus the line was deleted and is not found in the present Constitution. Father Bernas concludes that when Section 3 (5) says, "No impeachment proceeding shall be initiated against the same official more than once within a period of one year," it means that no second verified complaint may be accepted and referred to the Committee on Justice for action. By his explanation, this interpretation is founded on the common understanding of the meaning of "to initiate" which means to begin. He reminds that the Constitution is ratified by the people, both ordinary and sophisticated, as they understand it; and that ordinary people read ordinary meaning into ordinary words and not abstruse meaning, they ratify words as they understand it and not as sophisticated lawyers confuse it.

To the argument that only the House of Representatives as a body can initiate impeachment proceedings because Section 3 (1) says "The House of Representatives shall have the exclusive power to initiate all cases of impeachment," this is a misreading of said provision and is contrary to the principle of reddendo singula singulis by equating "impeachment cases" with "impeachment proceeding." From the records of the Constitutional Commission, to the amicus curiae briefs of two former Constitutional Commissioners, it is without a doubt that the term "to initiate" refers to the filing of the impeachment complaint coupled with Congress' taking initial action of said complaint. Having concluded that the initiation takes place by the act of filing and referral or endorsement of the impeachment complaint to the House Committee on Justice or, by the filing by at least one-third of the members of the House of Representatives with the Secretary General of the House, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated, another impeachment complaint may not be filed against the same official within a one year period.

Under Sections 16 and 17 of Rule V of the House Impeachment Rules, impeachment proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice that the verified complaint and/or resolution is sufficient in substance, or (2) once the House itself affirms or overturns the finding of the Committee on Justice that the verified complaint and/or resolution is not sufficient in substance or (3) by the filing or endorsement before the Secretary-General of the House of Representatives of a verified complaint or a resolution of impeachment by at least 1/3 of the members of the House. These rules clearly contravene Section 3 (5) of Article XI since the rules give the term "initiate" a meaning different meaning from filing and referral. In his amicus curiaebrief, Justice Hugo Gutierrez posits that this Court could not use contemporaneous construction as an aid in the interpretation of Sec. 3 (5) of Article XI, citing Vera v. Avelino 147 wherein this Court stated that "their personal opinions (referring to Justices who were delegates to the Constitution Convention) on the matter at issue expressed during this Court's our deliberations stand on a different footing from the properly recorded utterances of debates and proceedings." Further citing said case, he states that this Court likened the former members of the Constitutional Convention to actors who are so absorbed in their emotional roles that intelligent spectators may know more about the real meaning because of the latter's balanced perspectives and disinterestedness. 148 Justice Gutierrez's statements have no application in the present petitions. There are at present only two members of this Court who participated in the 1986 Constitutional

Commission Chief Justice Davide and Justice Adolf Azcuna. Chief Justice Davide has not taken part in these proceedings for obvious reasons. Moreover, this Court has not simply relied on the personal opinions now given by members of the Constitutional Commission, but has examined the records of the deliberations and proceedings thereof. Respondent House of Representatives counters that under Section 3 (8) of Article XI, it is clear and unequivocal that it and only it has the power to make and interpret its rules governing impeachment. Its argument is premised on the assumption that Congress has absolute power to promulgate its rules. This assumption, however, is misplaced. Section 3 (8) of Article XI provides that "The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section." Clearly, its power to promulgate its rules on impeachment is limited by the phrase "to effectively carry out the purpose of this section." Hence, these rules cannot contravene the very purpose of the Constitution which said rules were intended to effectively carry out. Moreover, Section 3 of Article XI clearly provides for other specific limitations on its power to make rules, viz:
Section 3.(1). . . (2)A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. (3)A vote of at least one-third of all the Members of the House shall be necessary to either affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. (4)In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (5)No impeachment proceedings shall be initiated against the same official more than once within a period of one year.

It is basic that all rules must not contravene the Constitution which is the fundamental law. If as alleged Congress had absolute rule making power, then it would by necessary

implication have the power to alter or amend the meaning of the Constitution without need of referendum. In Osmea v. Pendatun, 149 this Court held that it is within the province of either House of Congress to interpret its rules and that it was the best judge of what constituted "disorderly behavior" of its members. However, in Paceta v. Secretary of the Commission on Appointments, 150 Justice (later Chief Justice) Enrique Fernando, speaking for this Court and quoting Justice Brandeis in United States v. Smith, 151 declared that where the construction to be given to a rule affects persons other than members of the Legislature, the question becomes judicial in nature. In Arroyo v. De Venecia, 152 quoting United States v. Ballin, Joseph & Co., 153 Justice Vicente Mendoza, speaking for this Court, held that while the Constitution empowers each house to determine its rules of proceedings, it may not by its rules ignore constitutional restraints or violate fundamental rights, and further that there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. It is only within these limitations that all matters of method are open to the determination of the Legislature. In the same case of Arroyo v. De Venecia, Justice Reynato S. Puno, in his Concurring and Dissenting Opinion, was even more emphatic as he stressed that in the Philippine setting there is even more reason for courts to inquire into the validity of the Rules of Congress, viz:
With due respect, I do not agree that the issues posed by the petitioner are nonjusticiable. Nor do I agree that we will trivialize the principle of separation of power if we assume jurisdiction over the case at bar. Even in the United States, the principle of separation of power is no longer an impregnable impediment against the interposition of judicial power on cases involving breach of rules of procedure by legislators. Rightly, the ponencia uses the 1891 case of US v. Ballin (144 US 1) as a window to view the issues before the Court. It is in Ballin where the US Supreme Court first defined the boundaries of the power of the judiciary to review congressional rules. It held: "xxx xxx xxx "The Constitution, in the same section, provides, that each house may determine the rules of its proceedings." It appears that in pursuance of this authority the House had, prior to that day, passed this as one of its rules: Rule XV 3.On the demand of any member, or at the suggestion of the Speaker, the names of members sufficient to make a quorum in the hall of the House who do not vote shall be noted by the clerk and recorded in the journal,

and reported to the Speaker with the names of the members voting, and be counted and announced in determining the presence of a quorum to do business. (House Journal, 230, Feb. 14, 1890) The action taken was in direct compliance with this rule. The question, therefore, is as to the validity of this rule, and not what methods the Speaker may of his own motion resort to for determining the presence of a quorum, nor what matters the Speaker or clerk may of their own volition place upon the journal. Neither do the advantages or disadvantages, the wisdom or folly, of such a rule present any matters for judicial consideration. With the courts the question is only one of power. The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceedings established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the House, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the House, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal." Ballin, clearly confirmed the jurisdiction of courts to pass upon the validity of congressional rules, i.e., whether they are constitutional. Rule XV was examined by the Court and it was found to satisfy the test: (1) that it did not ignore any constitutional restraint; (2) it did not violate any fundamental right; and (3) its method had a reasonable relationship with the result sought to be attained. By examining Rule XV, the Court did not allow its jurisdiction to be defeated by the mere invocation of the principle of separation of powers. 154 xxx xxx xxx In the Philippine setting, there is a more compelling reason for courts to categorically reject the political question defense when its interposition will cover up abuse of power. For section 1, Article VIII of our Constitution was intentionally cobbled to empower courts ". . . to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." This power is new and was not granted to our courts in the 1935 and 1972 Constitutions. It was not also xeroxed from the US Constitution or any foreign state constitution. The CONCOM granted this enormous power to our courts in view of our experience under martial law where abusive exercises of state power were shielded from judicial scrutiny by the misuse of the political question doctrine.

Led by the eminent former Chief Justice Roberto Concepcion, the CONCOM expanded and sharpened the checking powers of the judiciary vis--vis the Executive and the Legislative departments of government. 155

xxx xxx xxx The Constitution cannot be any clearer. What it granted to this Court is not a mere power which it can decline to exercise. Precisely to deter this disinclination, the Constitution imposed it as a duty of this Court to strike down any act of a branch or instrumentality of government or any of its officials done with grave abuse of discretion amounting to lack or excess of jurisdiction. Rightly or wrongly, the Constitution has elongated the checking powers of this Court against the other branches of government despite their more democratic character, the President and the legislators being elected by the people. 156 xxx xxx xxx The provision defining judicial power as including the 'duty of the courts of justice . . . to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government' constitutes the capstone of the efforts of the Constitutional Commission to upgrade the powers of this court vis--vis the other branches of government. This provision was dictated by our experience under martial law which taught us that a stronger and more independent judiciary is needed to abort abuses in government. . . . xxx xxx xxx In sum, I submit that in imposing to this Court the duty to annul acts of government committed with grave abuse of discretion, the new Constitution transformed this Court from passivity to activism. This transformation, dictated by our distinct experience as nation, is not merely evolutionary but revolutionary. Under the 1935 and the 1973 Constitutions, this Court approached constitutional violations by initially determining what it cannot do; under the 1987 Constitution, there is a shift in stress this Court is mandated to approach constitutional violations not by finding out what it should not do but what it must do. The Court must discharge this solemn duty by not resuscitating a past that petrifies the present. I urge my brethren in the Court to give due and serious consideration to this new constitutional provision as the case at bar once more calls us to define the parameters of our power to review violations of the rules of the House. We will not be true to our trust as the last bulwark against government abuses if we refuse to exercise this new power or if we wield it with timidity. To be sure, it is

this exceeding timidity to unsheathe the judicial sword that has increasingly emboldened other branches of government to denigrate, if not defy, orders of our courts. In Tolentino, I endorsed the view of former Senator Salonga that this novel provision stretching the latitude of judicial power is distinctly Filipino and its interpretation should not be depreciated by undue reliance on inapplicable foreign jurisprudence. In resolving the case at bar, the lessons of our own history should provide us the light and not the experience of foreigners. 157 (Italics in the original; emphasis and italics supplied)

Thus, the ruling in Osmea v. Pendatun is not applicable to the instant petitions. Here, the third parties alleging the violation of private rights and the Constitution are involved. Neither may respondent House of Representatives' rely on Nixon v. US 158 as basis for arguing that this Court may not decide on the constitutionality of Sections 16 and 17 of the House Impeachment Rules. As already observed, the U.S. Federal Constitution simply provides that "the House of Representatives shall have the sole power of impeachment." It adds nothing more. It gives no clue whatsoever as to how this "sole power" is to be exercised. No limitation whatsoever is given. Thus, the US Supreme Court concluded that there was a textually demonstrable constitutional commitment of a constitutional power to the House of Representatives. This reasoning does not hold with regard to impeachment power of the Philippine House of Representatives since our Constitution, as earlier enumerated, furnishes several provisions articulating how that "exclusive power" is to be exercised. The provisions of Sections 16 and 17 of Rule V of the House Impeachment Rules which state that impeachment proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice that the verified complaint and/or resolution is sufficient in substance, or (2) once the House itself affirms or overturns the finding of the Committee on Justice that the verified complaint and/or resolution is not sufficient in substance or (3) by the filing or endorsement before the Secretary-General of the House of Representatives of a verified complaint or a resolution of impeachment by at least 1/3 of the members of the House thus clearly contravene Section 3 (5) of Article XI as they give the term "initiate" a meaning different from "filing." Validity of the Second Impeachment Complaint Having concluded that the initiation takes place by the act of filing of the impeachment complaint and referral to the House Committee on Justice, the initial action taken thereon, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated in the foregoing manner, another may not be filed against the same official within a one year period following Article XI, Section 3 (5) of the Constitution.

In fine, considering that the first impeachment complaint, was filed by former President Estrada against Chief Justice Hilario G. Davide, Jr., along with seven associate justices of this Court, on June 2, 2003 and referred to the House Committee on Justice on August 5, 2003, the second impeachment complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix William Fuentebella against the Chief Justice on October 23, 2003 violates the constitutional prohibition against the initiation of impeachment proceedings against the same impeachable officer within a one-year period. Conclusion If there is anything constant about this country, it is that there is always a phenomenon that takes the center stage of our individual and collective consciousness as a people with our characteristic flair for human drama, conflict or tragedy. Of course this is not to demean the seriousness of the controversy over the Davide impeachment. For many of us, the past two weeks have proven to be an exasperating, mentally and emotionally exhausting experience. Both sides have fought bitterly a dialectical struggle to articulate what they respectively believe to be the correct position or view on the issues involved. Passions had ran high as demonstrators, whether for or against the impeachment of the Chief Justice, took to the streets armed with their familiar slogans and chants to air their voice on the matter. Various sectors of society from the business, retired military, to the academe and denominations of faith offered suggestions for a return to a state of normalcy in the official relations of the governmental branches affected to obviate any perceived resulting instability upon areas of national life. Through all these and as early as the time when the Articles of Impeachment had been constituted, this Court was specifically asked, told, urged and argued to take no action of any kind and form with respect to the prosecution by the House of Representatives of the impeachment complaint against the subject respondent public official. When the present petitions were knocking so to speak at the doorsteps of this Court, the same clamor for non-interference was made through what are now the arguments of "lack of jurisdiction," "non-justiciability," and "judicial self-restraint" aimed at halting the Court from any move that may have a bearing on the impeachment proceedings. This Court did not heed the call to adopt a hands-off stance as far as the question of the constitutionality of initiating the impeachment complaint against Chief Justice Davide is concerned. To reiterate what has been already explained, the Court found the existence in full of all the requisite conditions for its exercise of its constitutionally vested power and duty of judicial review over an issue whose resolution precisely called for the construction or interpretation of a provision of the fundamental law of the land. What lies in here is an issue of a genuine constitutional material which only this Court can properly and competently address and adjudicate in accordance with the clear-cut allocation of powers under our system of government. Face-to-face thus with a matter or problem that

squarely falls under the Court's jurisdiction, no other course of action can be had but for it to pass upon that problem head on. The claim, therefore, that this Court by judicially entangling itself with the process of impeachment has effectively set up a regime of judicial supremacy, is patently without basis in fact and in law. This Court in the present petitions subjected to judicial scrutiny and resolved on the merits only the main issue of whether the impeachment proceedings initiated against the Chief Justice transgressed the constitutionally imposed one-year time bar rule. Beyond this, it did not go about assuming jurisdiction where it had none, nor indiscriminately turn justiciable issues out of decidedly political questions. Because it is not at all the business of this Court to assert judicial dominance over the other two great branches of the government. Rather, the raison d'etre of the judiciary is to complement the discharge by the executive and legislative of their own powers to bring about ultimately the beneficent effects of having founded and ordered our society upon the rule of law. It is suggested that by our taking cognizance of the issue of constitutionality of the impeachment proceedings against the Chief Justice, the members of this Court have actually closed ranks to protect one of their brethren. That the members' interests in ruling on said issue is as much at stake as is that of the Chief Justice. Nothing could be farther from the truth.

The institution that is the Supreme Court together with all other courts has long held and been entrusted with the judicial power to resolve conflicting legal rights regardless of the personalities involved in the suits or actions. This Court has dispensed justice over the course of time, unaffected by whomsoever stood to benefit or suffer therefrom, unafraid by whatever imputations or speculations could be made to it, so long as it rendered judgment according to the law and the facts. Why can it not now be trusted to wield judicial power in these petitions just because it is the highest ranking magistrate who is involved when it is an incontrovertible fact that the fundamental issue is not him but the validity of a government branch's official act as tested by the limits set by the Constitution? Of course, there are rules on the inhibition of any member of the judiciary from taking part in a case in specified instances. But to disqualify this entire institution now from the suits at bar is to regard the Supreme Court as likely incapable of impartiality when one of its members is a party to a case, which is simply a non sequitur. No one is above the law or the Constitution. This is a basic precept in any legal system which recognizes equality of all men before the law as essential to the law's moral authority and that of its agents to secure respect for and obedience to its commands. Perhaps, there is no other government branch or instrumentality that is most zealous in

protecting that principle of legal equality other than the Supreme Court which has discerned its real meaning and ramifications through its application to numerous cases especially of the high-profile kind in the annals of jurisprudence. The Chief Justice is not above the law and neither is any other member of this Court. But just because he is the Chief Justice does not imply that he gets to have less in law than anybody else. The law is solicitous of every individual's rights irrespective of his station in life. The Filipino nation and its democratic institutions have no doubt been put to test once again by this impeachment case against Chief Justice Hilario Davide. Accordingly, this Court has resorted to no other than the Constitution in search for a solution to what many feared would ripen to a crisis in government. But though it is indeed immensely a blessing for this Court to have found answers in our bedrock of legal principles, it is equally important that it went through this crucible of a democratic process, if only to discover that it can resolve differences without the use of force and aggression upon each other. WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment Proceedings which were approved by the House of Representatives on November 28, 2001 are unconstitutional. Consequently, the second impeachment complaint against Chief Justice Hilario G. Davide, Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix William B. Fuentebella with the Office of the Secretary General of the House of Representatives on October 23, 2003 is barred under paragraph 5, section 3 of Article XI of the Constitution. SO ORDERED. Carpio, J ., concurs. Davide, Jr., C .J ., took no part. Quisumbing, J ., concurring separate opinion received. Austria-Martinez, J ., I concur in the majority opinion and in the separate opinion of J. Vitug. Corona, J ., I will write a separate concurring opinion.

Separate Opinions
BELLOSILLO, J .:

. . . In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. Justice Jose P. Laurel

A pall of gloom hovers ominously in the horizon. Looming in its midst is the specter of conflict the thunderous echoes of which we listened to intently for the past few days; two great departments of government locked in a virtual impasse, sending them closer to the precipice of constitutional confrontation. Emerging from the shadows of unrest is the national inquest on the conduct of no less than the Chief Justice of this Court. Impeachment, described by Alexis Tocqueville as "the most formidable weapon that has ever been placed in the grasp of the majority," has taken center stage in the national consciousness in view of its far-reaching implications on the life of our nation. Unless the issues involved in the controversial cases are dealt with exceptional sensitivity and sobriety, the tempest of anarchy may fulminate and tear apart the very foundations of our political existence. It will be an unfortunate throwback to the dark days of savagery and brutishness where the hungry mob screaming for blood and a pound of flesh must be fed to be pacified and satiated. On 2 June 2003 former President Joseph Estrada through counsel filed a verified impeachment complaint before the House of Representatives charging Chief Justice Hilario G. Davide, Jr. and seven (7) Associate Justices of this Court with culpable violation of the Constitution, betrayal of public trust and other high crimes. The complaint was endorsed by Reps. Rolex T. Suplico of Iloilo, Ronaldo B. Zamora of San Juan and Didagen P. Dilangalen of Maguindanao and Cotabato City. On 13 October 2003, the House Committee on Justice included the impeachment complaint in its Order of Business and ruled that the complaint was "sufficient in form." Subsequently however, on 22 October 2003, the House Committee on Justice recommended the dismissal of the complaint for being "insufficient in substance." On 23 October 2003, four (4) months after the filing of the first impeachment complaint, a second verified impeachment complaint was filed by Reps. Gilberto C. Teodoro of Tarlac and William Felix D. Fuentebella of Camarines Sur, this time against Chief Justice Hilario G. Davide, Jr. alone. The complaint accused the Chief Justice mainly of misusing the Judiciary Development Fund (JDF). Thereafter, more than eighty (80) members of the Lower House, constituting more than 1/3 of its total membership, signed the resolution endorsing the second impeachment complaint. Several petitions for certiorari and prohibition questioning the constitutionality of the second impeachment complaint were filed before this Court. Oral arguments were set for hearing on 5 November 2003 which had to be extended to 6 November 2003 to accommodate the parties and their respective counsel. During the hearings, eight (8)

amici curiae appeared to expound their views on the contentious issues relevant to the impeachment. This Court must hearken to the dictates of judicial restraint and reasoned hesitance. I find no urgency for judicial intervention at this time. I am conscious of the transcendental implications and importance of the issues that confront us, not in the instant cases alone but on future ones as well; but to me, this is not the proper hour nor the appropriate circumstance to perform our duty. True, this Court is vested with the power to annul the acts of the legislature when tainted with grave abuse of discretion. Even so, this power is not lightly assumed or readily exercised. The doctrine of separation of powers imposes upon the courts proper restraint born of the nature of their functions and of their respect for the other departments, in striking down the acts of the legislature as unconstitutional. Verily, the policy is a harmonious blend of courtesy and caution. 1 All avenues of redress in the instant cases must perforce be conscientiously explored and exhausted, not within the hallowed domain of this Court, but within the august confines of the Legislature, particularly the Senate. As Alexander Hamilton, delegate to the 1787 American Constitutional Convention, once wrote: "The Senate is the most fit depositary of this important trust." 2 We must choose not to rule upon the merits of these petitions at this time simply because, I believe, this is the prudent course of action to take under the circumstances; and, it should certainly not to be equated with a total abdication of our bounden duty to uphold the Constitution. For considerations of law and judicial comity, we should refrain from adjudicating the issues one way or the other, except to express our views as we see proper and appropriate. First. The matter of impeachment is a political question that must rightfully be addressed to a political branch of government, which is the Congress of the Philippines. As enunciated in Integrated Bar of the Philippines v. Zamora, 3 we do not automatically assume jurisdiction over actual constitutional cases brought before us even in instances that are ripe for resolution
One class of cases wherein the Court hesitates to rule on are "political questions." The reason is that political questions are concerned with issues dependent upon the wisdom, not the legality, of a particular act or measure being assailed. Moreover, the political question being the function of the separation of powers, the courts will not normally interfere with the workings of another co-equal branch unless the case shows a clear need for the courts to step in to uphold the law and the Constitution.

Clearly, the constitutional power of impeachment rightfully belongs to Congress in a two-fold character: (a) The power to initiate impeachment cases against impeachable

officers is lodged in the House of Representatives; and, (b) The power to try and decide impeachment cases belongs solely to the Senate. In Baker v. Carr 4 repeatedly mentioned during the oral arguments, the United States Supreme Court held that political questions chiefly relate to separation of powers issues, the Judiciary being a co-equal branch of government together with the Legislature and the Executive branch, thus calling for judicial deference. A controversy is non-justiciable where there is a "textually demonstrable constitutional commitment of the issue to a coordinate political department, or a lack of judicially discoverable and manageable standards for resolving it." 5

But perhaps it is Nixon v. United States 6 which provides the authority on the "political question" doctrine as applied in impeachment cases. In that case the U.S. Supreme Court applied the Baker ruling to reinforce the "political question" doctrine in impeachment cases. Unless it can therefore be shown that the exercise of such discretion was gravely abused, the Congressional exercise of judgment must be recognized by this Court. The burden to show that the House or the Senate gravely abused its discretion in impeaching a public officer belongs exclusively to the impeachable officer concerned. Second. At all times, the three (3) departments of government must accord mutual respect to each other under the principle of separation of powers. As a co-equal, coordinate and co-extensive branch, the Judiciary must defer to the wisdom of the Congress in the exercise of the latter's power under the Impeachment Clause of the Constitution as a measure of judicial comity on issues properly within the sphere of the Legislature. Third. It is incumbent upon the Court to exercise judicial restraint in rendering a ruling in this particular case to preserve the principle of separation of powers and restore faith and stability in our system of government. Dred Scott v. Sandford 7 is a grim illustration of how catastrophic improvident judicial incursions into the legislative domain could be. It is one of the most denounced cases in the history of U.S. Supreme Court decisionmaking. Penned by Chief Justice Taney, the U.S. Supreme Court, by a vote of 7-2, denied that a Negro was a citizen of the United States even though he happened to live in a "free" state. The U.S. High Court likewise declared unconstitutional the law forbidding slavery in certain federal territories. Dred Scott undermined the integrity of the U.S. High Court at a moment in history when it should have been a powerful stabilizing force. More significantly, it inflamed the passions of the Northern and Southern states over the slavery issue thus precipitating the American Civil War. This we do not wish to happen in the Philippines! It must be clarified, lest I be misconstrued, this is not to say that this Court is absolutely precluded from inquiring into the constitutionality of the impeachment process. The

present Constitution, specifically under Art. VIII, Sec. 1, introduced the expanded concept of the power of judicial review that now explicitly allows the determination of whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. This is evidently in response to the unedifying experience of the past in frequently resorting to the "political question" doctrine that in no mean measure has emasculated the Court's authority to strike down abuses of power by the government or any of its instrumentalities. While the impeachment mechanism is by constitutional design a sui generis political process, it is not impervious to judicial interference in case of arbitrary or capricious exercise of the power to impeach by Congress. It becomes the duty of the Court to step in, not for the purpose of questioning the wisdom or motive behind the legislative exercise of impeachment powers, but merely to check against infringement of constitutional standards. In such circumstance, legislative actions "might be so far beyond the scope of its constitutional authority, and the consequent impact on the Republic so great, as to merit a judicial response despite prudential concerns that would ordinarily counsel silence." 8 I must, of course, hasten to add by way of a finale the nature of the power of judicial review as elucidated in Angara v.Electoral Commission 9
The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution (emphasis supplied).

By way of obiter dictum, I find the second impeachment complaint filed against the Chief Justice on 23 October 2003 to be constitutionally infirm. Precisely, Art. 11, Sec. 3, par. (5), of the 1987 Constitution explicitly ordains that "no impeachment proceedings shall be initiated against the same official more than once within a period of one year." The fundamental contention that the first impeachment complaint is not an "initiated" complaint, hence should not be counted, since the House Committee on Justice found it to be insufficient in substance, is specious, to say the least. It seems plain to me that the term initiation must be understood in its ordinary legal acceptation, which means inception or commencement; hence, an impeachment is initiated upon the filing of a verified complaint, similar to an ordinary action which is initiated by the filing of the complaint in the proper tribunal. This conclusion finds support in the deliberations of the

Constitutional Commission, which was quoted extensively in the hearings of 5 and 6 November 2003
THE PRESIDING OFFICER (Mr. Trenas). Commissioner Maambong is recognized. MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the approval of the amendment submitted by Commissioner Regalado, but I will just make of record my thinking that we do not really initiate the filing of the Articles of Impeachment on the floor. The procedure, as I have pointed out earlier, was that the initiation starts with the filing of the complaint. And what is actually done on the floor is that the committee resolution containing the Articles of Impeachment is the one approved by the body. As the phraseology now runs, which may be corrected by the Committee on Style, it appears that the initiation starts on the floor. If we only have time, I could cite examples in the case of the impeachment proceedings of President Richard Nixon wherein the Committee on the Judiciary submitted the recommendation, the resolution and the Articles of Impeachment to the body, and it was the body that approved the resolution. It is not the body which initiates it. It only approves or disapproves the resolution. So, on that score, probably the Committee on Style could help in rearranging these words because we have to be very technical about this. I have been bringing with me The Rules of the House of Representatives of the U.S. Congress. The Senate Rules are with me. The proceedings of the case of Richard Nixon are with me. I have submitted my proposal, but the Committee has already decided. Nevertheless, I just want to indicate this on record . . . (italics supplied for emphasis). 10

As aptly observed by Fr. Joaquin C. Bernas, S.J., "an impeachment proceeding is not a single act; it is a complexus of acts consisting of a beginning, a middle and an end. The end is the transmittal of the articles of impeachment to the Senate. The middle consists of those deliberative moments leading to the formulation of the articles of impeachment. The beginning or the initiation is the filing of the complaint and its referral to the Committee on Justice." 11 To recapitulate: (a) Impeachment is a political question that is rightfully within the sphere of Congressional prerogatives; (b) As co-equal, coordinate and co-extensive branches of the government, the Legislature and the Judiciary must respect the doctrine of separation of powers at all times; (c) Judicial restraint must be exercised by this Court in the instant cases, as a matter of judicial courtesy; and, (d) While impeachment is essentially a political exercise, judicial interference is allowed in case of arbitrary or capricious exercise of that power as to amount to grave abuse of discretion.

It is lamentable indeed that the life of our nation has been marked by turbulent periods of pain, anxieties and doubt. The instant cases come at a time when scandals of corruption, obscene profligacy and venality in public office appear to be stalking the entire system of government. It is a period of stress with visible signs of creeping hopelessness, and public disenchantment continues to sap the vim and vitality of our institutions. The challenge at present is how to preserve the majesty of the Constitution and protect the ideals of our republican government by averting a complete meltdown of governmental civility and respect for the separation of powers. It is my abiding conviction that the Senate will wield its powers in a fair and objective fashion and in faithful obeisance to their sacred trust to achieve this end. "The highest proof of virtue," intoned Lord Macaulay, "is to possess boundless power without abusing it." And so it must be that we yield to the authority of the House of Representatives and the Senate on the matter of the impeachment of one of our Brethren, and unless the exercise of that authority is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction we should refrain from interfering with the prerogatives of Congress. That, I believe, is judicial statesmanship of the highest order which will preserve the harmony among the three separate but co-equal branches of government under our constitutional democracy. IN VIEW OF THE FOREGOING, I maintain that in disposing of this case we should exercise judicial restraint and leave the matter to the Senate unless such exercise is fraught with grave abuse of discretion. Hence, I find no legal obstacle to dismissing the instant petitions.

PUNO, J ., concurring and dissenting: Over a century ago, Lord Bryce described the power of impeachment as the "heaviest piece of artillery in the congressional arsenal." Alexander Hamilton warned that any impeachment proceeding "will seldom fail to agitate the passions of the whole community." His word is prophetic for today we are in the edge of a crisis because of the alleged unconstitutional exercise of the power of impeachment by the House of Representatives. Before the Court are separate petitions for certiorari, prohibition and mandamus filed by different groups seeking to prevent the House of Representatives from transmitting to the Senate the Articles of Impeachment against Chief Justice Hilario G. Davide, Jr., alleging improper use of the Judiciary Development Fund (JDF), and to enjoin the Senate from trying and deciding the case.

Let us first leapfrog the facts. On October 23, 2003, Representatives Gilberto C. Teodoro, Jr., First District, Tarlac, and Felix William B. Fuentebella, Third District, Camarines Sur, filed with the House of Representatives a Complaint for Impeachment against Chief Justice Hilario G. Davide, Jr. The complaint alleged the underpayment of the cost of living allowance of the members and personnel of the judiciary from the JDF, and unlawful disbursement of said fund for various infrastructure projects and acquisition of service vehicles and other equipment. The complaint was endorsed by one-third (1/3) of all the members of the House of Representatives. It is set to be transmitted to the Senate for appropriate action. In the succeeding days, several petitions were filed with this Court by members of the bar, members of the House of Representatives, as well as private individuals, all asserting their rights, among others, as taxpayers to stop the illegal spending of public funds for the impeachment proceedings against the Chief Justice. The petitioners contend that the filing of the present impeachment complaint against the Chief Justice is barred under Article XI, Section 3 (5) of the 1987 Constitution which states that "(n)o impeachment proceedings shall be initiated against the same official more than once within a period of one year." They cite the prior Impeachment Complaint filed by Former President Joseph Ejercito Estrada against the Chief Justice and seven associate justices of this Court on June 2, 2003 for allegedly conspiring to deprive him of his mandate as President, swearing in then Vice President Gloria Macapagal-Arroyo to the Presidency, and declaring him permanently disabled to hold office. Said complaint was dismissed by the Committee on Justice of the House of Representatives on October 23, 2003 for being insufficient in substance. The recommendation has still to be approved or disapproved by the House of Representatives in plenary session. On October 28, 2003, this Court issued a resolution requiring the respondents and the Solicitor General to comment on the petitions and setting the cases for oral argument on November 5, 2003. The Court also appointed the following as amici curiae: Former Senate President Jovito R. Salonga, former Constitutional Commissioner Joaquin G. Bernas, retired Justice Hugo E. Gutierrez, Jr. of the Supreme Court, retired Justice Florenz D. Regalado of the Supreme Court, former Minister of Justice and Solicitor General Estelito P. Mendoza, former Constitutional Commissioner and now Associate Justice of the Court of Appeals, Regalado E. Maambong, Dean Raul C. Pangalangan and former Dean Pacifico A. Agabin of the UP College of Law. The Court further called on the petitioners and the respondents to maintain the status quo and enjoined them to refrain from committing acts that would render the petitions moot. Both the Senate and the House of Representatives took the position that this Court lacks jurisdiction to entertain the petitions at bar. The Senate, thru its President, the Honorable Franklin Drilon further manifested that the petitions are premature for the Articles of Impeachment have not been transmitted to them. In its Special Appearance, the House alleged that the petitions pose political questions which are non-justiciable.

We then look at the profiles of the problems. On November 5 and 6, 2003, the Court heard the petitions on oral argument. It received arguments on the following issues:
Whether the certiorari jurisdiction of the Supreme Court may be invoked; who can invoke it; on what issues and at what time; and whether it should be exercised by this Court at this time. a)locus standi of petitioners; b)ripeness (prematurity; mootness); c)political question/justiciability; d)House's "exclusive" power to initiate all cases of impeachment; e)Senate's "sole" power to try and decide all cases of impeachment; f)constitutionality of the House Rules on Impeachment vis a vis Section 3 (5) of Article XI of the Constitution; and g)judicial restraint.

Due to the constraints of time, I shall limit my Opinion to the hot-button issues of justiciability, jurisdiction and judicial restraint. For a start, let us look to the history of thought on impeachment for its comprehensive understanding. A. The Origin and Nature of Impeachment: The British Legacy The historical roots of impeachment appear to have been lost in the mist of time. Some trace them to the Athenian Constitution. 1 It is written that Athenian public officials were hailed to law courts known as "heliaea" upon leaving office. The citizens were then given the right to charge the said officials before they were allowed to bow out of office. 2 Undoubtedly, however, the modern concept of impeachment is part of the British legal legacy to the world, especially to the United States. 3 It was originally conceived as a checking mechanism on executive excuses. 4 It was then the only way to hold royal officials accountable. 5 The records reveal that the first English impeachments took place in the reign of Edward III (1327-1377). 6 It was during his kingship that the two houses of Lords and Commons acquired some legislative powers. 7 But it was during the reign of Henry IV (1399-1413) that the procedure was firmly established whereby the House of Commons initiated impeachment proceedings while the House of Lords tried the impeachment cases. 8 Impeachment in England covered not only public officials but

private individuals as well. There was hardly any limitation in the imposable punishment.
9

Impeachment in England skyrocketed during periods of institutional strifes and was most intense prior to the Protestant Revolution. Its use declined when political reforms were instituted. 10 Legal scholars are united in the view that English impeachment partakes of a political proceeding and impeachable offenses are political crimes. 11 B. Impeachment in the United States: Its political character The history of impeachment in colonial America is scant and hardly instructive. In the royal colonies, governors were appointed by the Crown while in the proprietary colonies, they were named by the proprietor. 12 Their tenure was uncertain. They were dismissed for disobedience or inefficiency or political patronage. 13 Judges were either commissioned in England or in some instances appointed by the governor. They enjoyed no security of office. 14 The first state constitutions relied heavily on common law traditions and the experience of colonial government. 15 In each state, the Constitution provided for a Chief Executive, a legislature and a judiciary. 16 Almost all of the Constitutions provided for impeachment. 17 There were differences in the impeachment process in the various states. 18 Even the grounds for impeachment and their penalties were dissimilar. In most states, the lower house of the legislature was empowered to initiate the impeachment proceedings. 19 In some states, the trial of impeachment cases was given to the upper house of the legislature; in others, it was entrusted to a combination of these fora. 20 At the national level, the 1781 Articles of Confederation did not contain any provision on impeachment.
21

Then came the Philadelphia Constitutional Convention of 1787. In crafting the provisions on impeachment, the delegates were again guided by their colonial heritage, the early state constitutions, and common law traditions, especially the British legacy. 22 The records show that Edmund Randolph of the State of Virginia presented to the Convention what came to be known as the Virginia Plan of structure of government. It was largely the handiwork of James Madison, Father of the American Constitution. It called for a strong national government composed of an executive, a bicameral legislature and a judiciary. 23 The Virginia Plan vested jurisdiction in the judiciary over impeachment of national officers. 24 Charles Pinkney of South Carolina offered a different plan. He lodged the power of impeachment in the lower house of the legislature but the right to try was given to the federal judiciary. 25 Much of the impeachment debates, however, centered on the accountability of the President and how he should be impeached. A Committee called Committee on Detail 26 recommended that the House of

Representatives be given the sole power of impeachment. It also suggested that the Supreme Court should be granted original jurisdiction to try cases of impeachment. The matter was further referred to a Committee of Eleven chaired by David Brearley of New Hampshire. 27 It suggested that the Senate should have the power to try all impeachments, with a 2/3 vote to convict. The Vice President was to be ex-officio President of the Senate, except when the President was tried, in which event the Chief Justice was to preside. 28 Gouverneur Morris explained that "a conclusive reason for making the Senate instead of the Supreme Court the Judge of impeachments, was that the latter was to try the President after the trial of the impeachment." 29 James Madison insisted on the Supreme Court and not the Senate as the impeachment court for it would make the President "improperly dependent. 30 Madison's stand was decisively rejected. 31 The draft on the impeachment provisions was submitted to a Committee on Style which finalized them without effecting substantive changes. 32

Prof. Gerhardt points out that there are eight differences between the impeachment power provided in the US Constitution and the British practice: 33
First, the Founders limited impeachment only to "[t]he President, Vice President and all civil Officers of the United States." Whereas at the time of the founding of the Republic, anyone (except for a member of the royal family) could be impeached in England. Second, the delegates to the Constitutional Convention narrowed the range of impeachable offenses for public officeholders to "Treason, Bribery, or other high Crimes and Misdemeanors," although the English Parliament always had refused to constrain its jurisdiction over impeachments by restrictively defining impeachable offenses. Third, whereas the English House of Lords could convict upon a bare majority, the delegates to the Constitutional Convention agreed that in an impeachment trial held in the Senate, "no Person shall be convicted [and removed from office] without the concurrence of two thirds of the Members present." Fourth, the House of Lords could order any punishment upon conviction, but the delegates limited the punishments in the federal impeachment process "to removal from Office, and disqualification to hold and enjoy any Office of Honor, Trust, or Profit under the United States." Fifth, the King could pardon any person after an impeachment conviction, but the delegates expressly prohibited the President from exercising such power in the Constitution. Sixth, the Founders provided that the President could be impeached, whereas the King of England could not be impeached. Seventh, impeachment proceedings in England were considered to be criminal, but the Constitution separates criminal and impeachment proceedings. Lastly, the British provided for the removal of their judges by several means, whereas the Constitution provides impeachment as the sole political means of judicial removal.

It is beyond doubt that the metamorphosis which the British concept of impeachment underwent in the Philadelphia Constitutional Convention of 1789 did not change its political nature. In the Federalist No. 65, Alexander Hamilton observed:
The subject of the Senate jurisdiction [in an impeachment trial] are those offenses which proceed from the misconduct of public man or in other words, from the abuse or violation of some public trust. They are of a political nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself .

Justice James Wilson characterized impeachments as proceedings of a political nature "confined to political characters, to political crimes and misdemeanors, and to political punishments." 34 Another constitutionalist, McDowell emphasized: "To underscore the inherently political nature of impeachment, the Founders went further and provided that the right to a jury trial was to be secured for 'all crimes except in cases of impeachment.' When it came to the President, unlike his powers to interfere with ordinary crimes, the Founders sought to limit his power to interfere with impeachments. His power to grant reprieves and pardons for offenses against the United States was granted broadly 'except in cases of impeachment.'" 35 A painstaking study of state court decisions in the United States will reveal that almost invariably state courts have declined to review decisions of the legislature involving impeachment cases consistent with their character as political. 36 In the federal level, no less than the US Supreme Court, thru Chief Justice Rehnquist, held in the 1993 case of Nixon v. United States 37 that the claim that the US Senate rule which allows a mere committee of senators to hear evidence of the impeached person violates the Constitution is non-justiciable. I quote the ruling in extenso:
xxx xxx xxx The history and contemporary understanding of the impeachment provisions support our reading of the constitutional language. The parties do not offer evidence of a single word in the history of the Constitutional Convention or in contemporary commentary that even alludes to the possibility of judicial review in the context of the impeachment powers. See 290 US App DC, at 424, 938 F2d, at 243; R. Berger, Impeachment: The Constitutional Problems 116 (1973). This silence is quite meaningful in light of the several explicit references to the availability of judicial review as a check on the Legislature's power with respect to bills of attainder, ex post facto laws, and statutes. See the Federalist No. 78 p 524 (J. Cooke ed 1961) ("Limitations . . . can be preserved in practice no other way than through the medium of the courts of justice"). The Framers labored over the question of where the impeachment power should lie. Significantly, in at least two considered scenarios the power was placed with the Federal Judiciary. See 1 Farrand 21-22 (Virginia Plan); id., at 244 (New

Jersey Plan). Indeed, Madison and the Committee of Detail proposed that the Supreme Court should have the power to determine impeachments. See 2 id., at 551 (Madison); id., at 178-179, 186 (Committee of Detail). Despite these proposals, the Convention ultimately decided that the Senate would have "the sole Power to Try all Impeachments." Art I, 3, cl 6. According to Alexander Hamilton, the Senate was the "most fit depositary of this important trust" because its members are representatives of the people. See The Federalist No. 65, p. 440 (J. Cooke ed 1961). The Supreme Court was not the proper body because the Framers "doubted whether the members of that tribunal would, at all times, be endowed with so eminent a portion of fortitude as would be called for in the execution of so difficult a task" or whether the Court "would possess the degree of credit and authority" to carry out its judgment if it conflicted with the accusation brought by the Legislature the people's representative. See id., at 441. In addition, the Framers believed the Court was too small in number: "The lawful discretion, which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons." Id., at 441-442. There are two additional reasons why the Judiciary, and the Supreme Court in particular, were not chosen to have any role in impeachments. First, the Framers recognized that most likely there would be two sets of proceedings for individuals who commit impeachable offenses the impeachment trial and a separate criminal trial. In fact, the Constitution explicitly provides for two separate proceedings. See Art I, 3, cl 7. The Framers deliberately separated the two forums to avoid raising the specter of bias and to ensure independent judgments: Would it be proper that the persons, who had disposed of his fame and his most valuable rights as a citizen in one trial, should in another trial, for the same offense, be also the disposers of his life and his fortune? Would there not be the greatest reason to apprehend, that error in the first sentence would be the parent of error in the second sentence? That the strong bias of one decision would be apt to overrule the influence of any new lights, which might be brought to vary the complexion of another decision? The Federalist No. 65, p 442 (J. Cooke ed 1961) Certainly judicial review of the Senate's "trial" would introduce the same risk of bias as would participation in the trial itself. Second, judicial review would be inconsistent with the Framers' insistence that our system be one of checks and balances. In our constitutional system, impeachment was designed to be the only check on the Judicial Branch by the Legislature. On the topic of judicial accountability, Hamilton wrote:

The precautions for their responsibility are comprised in the article respecting impeachments. They are liable to be impeached for malconduct by the house of representatives, and tried by the senate, and if convicted, may be dismissed from office and disqualified for holding any other. This is the only provision on the point, which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own constitution in respect to our own judges. Id., No. 79, pp. 532-533 (emphasis added) Judicial involvement in impeachment proceedings, even if only for purposes of judicial review, is counterintuitive because it would eviscerate the "important constitutional check" placed on the Judiciary by the Framers. See id., No. 81, p 545.

In fine, impeachment is dominantly political in character both in England and in the United States. C. The Nature of Impeachment in the Philippine Setting Given its history, let us now consider the nature of impeachment in the Philippine setting, i.e., whether it is likewise political in nature. A revisit of the political question doctrine will not shock us with the unfamiliar. In Taada v. Cuenco, 38 we held that the term political question connotes what it means in ordinary parlance, namely, a question of policy. It refers to "those questions which under the Constitution, are to be decided by the people in their sovereign capacity; or in regard to which full discretionary authority has been delegated to the legislative or executive branch of government. It is concerned with issues dependent upon the wisdom, not legality of a particular measure." In Sanidad v. COMELEC, 39 we further held that "political questions are not the legality of a particular act. Where the vortex of the controversy refers to the legality or validity of the contested act, the matter is definitely justiciable or non-political." Over the years, the core concept of political question and its contours underwent further refinement both here and abroad. In the 1962 landmark case of Baker v. Carr, 40 Mr. Justice Brennan, a leading light in the Warren Court known for its judicial activism, 41 delineated the shadowy umbras and penumbras of a political question. He held:

. . . Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an

unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

The political question problem raises the issue of justiciability of the petitions at bar. Parenthetically, the issue of justiciability is different from the issue of jurisdiction. Justiciability refers to the suitability of a dispute for judicial resolution. 42 Mr. Justice Frankfurter considers political question unfit for adjudication for it compels courts to intrude into the "political thicket." In contrast, jurisdiction refers to the power of a court to entertain, try and decide a case. C.1. The issues at bar are justiciable Prescinding from these premises, I shall now grapple with the threshold issue of whether the petitions at bar pose political questions which are non-justiciable or whether they present legal and constitutional issues over which this Court has jurisdiction. The resolution of the issue demands a study that goes beyond the depth of the epidermis. We give the impeachment provisions of our Constitution a historical, textual, legal and philosophical lookover. The historiography of our impeachment provisions will show that they were liberally lifted from the US Constitution. Following an originalist interpretation, there is much to commend to the thought that they are political in nature and character. The political character of impeachment hardly changed in our 1935, 1973 and 1987 Constitutions. Thus, among the grounds of impeachment are "other high crimes or betrayal of public trust." 43 They hardly have any judicially ascertainable content. The power of impeachment is textually committed to Congress, a political branch of government. The right to accuse is exclusively given to the House of Representatives. 44 The right to try and decide is given solely to the Senate 45 and not to the Supreme Court. The Chief Justice has a limited part in the process to preside but without the right to vote when the President is under impeachment. 46 Likewise, the President cannot exercise his pardoning power in cases of impeachment. 47 All these provisions confirm the inherent nature of impeachment as political. Be that as it may, the purity of the political nature of impeachment has been lost. Some legal scholars characterize impeachment proceedings as akin to criminal proceedings. Thus, they point to some of the grounds of impeachment like treason, bribery, graft and corruption as well defined criminal offenses. 48 They stress that the impeached official undergoes trial in the Senate sitting as an impeachment court. 49 If found guilty, the impeached official suffers a penalty "which shall not be further than removal from office and disqualification to hold any office under the Republic of the Philippines." 50

I therefore respectfully submit that there is now a commixture of political and judicial components in our reengineered concept of impeachment. It is for this reason and more that impeachment proceedings are classified as sui generis. To be sure, our impeachment proceedings are indigenous, a kind of its own. They have been shaped by our distinct political experience especially in the last fifty years. EDSA People Power I resulted in the radical rearrangement of the powers of government in the 1987 Constitution. Among others, the powers of the President were diminished. Substantive and procedural restrictions were placed in the President's most potent power his power as Commander-in-Chief. Thus, he can suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law but only for a period not exceeding sixty days. 51 Within forty-eight hours from such suspension or proclamation, he is required to submit a report to Congress. 52 The sufficiency of the factual basis of the suspension of habeas corpus or the proclamation of martial law may be reviewed by the Supreme Court. 53 Similarly, the powers of the legislature were pruned down. 54 Its power of impeachment was reconfigured to prevent abuses in its exercise. Even while Article XI of the Constitution lodged the exercise of the power of impeachment solely with Congress, nonetheless it defined how the procedure shall be conducted from the first to the last step. Among the new features of the proceedings is Section 3 (5) which explicitly provides that "no impeachment proceedings shall be initiated against the same official more than once within a period of one year." In contrast, the 1987 Constitution gave the Judiciary more powers. Among others, it expanded the reach and range of judicial power by defining it as including ". . . the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." 55 Likewise, it expanded the rule making power of the Court. It was given the power to promulgate rules concerning the protection and enforcement of constitutional rights. 56 In light of our 1987 constitutional canvass, the question is whether this Court can assume jurisdiction over the petitions at bar. As aforediscussed, the power of impeachment has both political and non-political aspects. I respectfully submit that the petitions at bar concern its non-political aspect, the issue of whether the impeachment complaint against Chief Justice Davide involving the JDF is already barred by the 1-year rule under Article XI, Section 3(5) of the Constitution. By any standard, this is a justiciable issue. As held in Casibang v. Aquino, 57 a justiciable question implies a given right, legally demandable, and enforceable, an act or omission violative of such right, and a remedy granted and sanctioned by law, for said breach of right." The petitions at bar involve the right of the Chief Justice against the initiation of a second impeachment within one year after a first impeachment complaint. The right is guaranteed by no less than the Constitution. It is demandable. It is a right that can be vindicated in our courts. The contention that Congress, acting in its constitutional capacity as an impeachment body, has jurisdiction over the issues posed by the petitions at bar has no merit in light of

our long standing jurisprudence. The petitions at bar call on the Court to define the powers that divide the jurisdiction of this Court as the highest court of the land and Congress as an impeachment court. In the seminal case of Angara v. Electoral Commission, 58 we held that ". . . the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituents thereof is the judicial department." So ruled Mr. Justice Laurel as ponente: xxx xxx xxx
But in the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government. The overlapping and interlacing of functions and duties between the several departments, however, sometimes makes it hard to say just where the one leaves off and the other begins. In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof. xxx xxx xxx The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed "judiciary supremacy" which properly is the power of judicial review under the Constitution.

To be sure, the force to impugn the jurisdiction of this Court becomes more feeble in light of the new Constitution which expanded the definition of judicial power as including "the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." As well observed by retired Justice Isagani Cruz, this expanded definition of judicial power considerably constricted the scope of political question. 59 He opined that the language luminously suggests that this duty (and power) is available even against the executive and

legislative departments including the President and the Congress, in the exercise of their discretionary powers. 60

We shall not be breaking grounds in striking down an act of a co-equal branch of government or an act of an independent agency of government done in grave abuse of discretion. Article VI, Section 17 of the 1987 Constitution provides, inter alia, that the House of Representatives Electoral Tribunal (HRET) shall be the "sole judge" of all contests relating to the election, returns, and qualifications of the members of the House. In Bondoc v. Pineda, et al. 61 this Court declared null and void the Resolution of the House of Representatives withdrawing the nomination, and rescinding the election of Congressman Camasura as a member of the HRET. His expulsion from the HRET by the House of Representatives was held not to be for a lawful and valid cause, but to unjustly interfere with the tribunal's disposition of the Bondoc case and deprive Bondoc of the fruits of the HRET's decision in his favor. This Court found that the House of Representatives acted with grave abuse of discretion in removing Congressman Camasura. Its action was adjudged to be violative of the constitutional mandate which created the HRET to be the "sole judge" of the election contest between Bondoc and Pineda. We held that a showing that plenary power is granted either department of government is not an obstacle to judicial inquiry, for the improvident exercise or the abuse thereof may give rise to a justiciable controversy. Since "a constitutional grant of authority is not unusually unrestricted, limitations being provided for as to what may be done and how it is to be accomplished, necessarily then, it becomes the responsibility of the courts to ascertain whether the two coordinate branches have adhered to the mandate of the fundamental law. The question thus posed is judicial rather than political." We further explained that the power and duty of courts to nullify, in appropriate cases, the actions of the executive and legislative branches does not mean that the courts are superior to the President and the Legislature. It does mean though that the judiciary may not shirk "the irksome task" of inquiring into the constitutionality and legality of legislative or executive action when a justiciable controversy is brought before the courts by someone who has been aggrieved or prejudiced by such action. It is "a plain exercise of judicial power, the power vested in courts to enable them to administer justice according to law. . . . It is simply a necessary concomitant of the power to hear and dispose of a case or controversy properly before the court, to the determination of which must be brought the test and measure of the law." 62 In Angara v. Electoral Commission, 63 we also ruled that the Electoral Commission, a constitutional organ created for the specific purpose of determining contests relating to election returns and qualifications of members of the National Assembly may not be interfered with by the judiciary when and while acting within the limits of authority, but this Court has jurisdiction over the Electoral Commission for the purpose of determining the character, scope and extent of the constitutional grant to the commission as sole

judge of all contests relating to the election and qualifications of the members of the National Assembly. Similarly, in Arroyo v. House of Representatives Electoral Tribunal (HRET) and Augusto Syjuco, 64 we nullified the HRET's decision declaring private respondent Syjuco as the duly elected Congressman of Makati for having been rendered in persistent and deliberate violation of the Tribunal's own governing rules and the rules of evidence. To be sure, this Court has reviewed not just acts of the HRET but also of the House of Representatives itself . We passed upon the issue of whether the procedure for passing a law provided by the Constitution was followed by the House of Representatives and the Senate in Tolentino v. Secretary of Finance, et al. 65 involving R.A. No. 7716 or the VAT law. We ruled that the VAT law satisfied the constitutional provision requiring that all appropriation, revenue and tariff bills originate from the House of Representatives under Article VI, Section 24 of the 1987 Constitution. We also interpreted the constitutional provision requiring the reading of a bill on three separate days "except when the President certifies to the necessity of its immediate enactment, etc." and held that this requirement was satisfied when the bill which became R.A. No. 7716 underwent three readings on the same day as the President certified the bill as urgent. Finally, we interpreted the Rules of the Senate and the House of Representatives and held that there was nothing irregular about the conference committee including in its report an entirely new provision not found either in the House bill or in the Senate bill as this was in accordance with the said Rules. The recent case of Macalintal v. COMELEC 66 on absentee voting affirmed the jurisdiction of this Court to review the acts of the legislature. In said case, the Court settled the question of propriety of the petition which appeared to be visited by the vice of prematurity as there were no ongoing proceedings in any tribunal, board or before a government official exercising judicial, quasi-judicial or ministerial functions as required by Rule 65 of the Rules of Court. The Court considered the importance of the constitutional issues raised by the petitioner, and quoted Taada v. Angara 67 stating that "where an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute." I therefore concur with the majority that the issues posed by the petitions at bar are justiciable and this Court has jurisdiction over them. D. The Exercise of Jurisdiction: Theory and Limits of Judicial Restraint, Judicial Activism and the Coordinacy Theory of Constitutional Interpretation The next crucial question is whether the Court should now exercise its jurisdiction. Former Senate President Salonga says not yet and counsels restraint. So do Deans Agabin

and Pangalangan of the UP College of Law. To be sure, there is much to commend in judicial restraint. Judicial restraint in constitutional litigation is not merely a practical approach to decision-making. With humility, I wish to discuss its philosophical underpinnings. As a judicial stance, it is anchored on a heightened regard for democracy. It accords intrinsic value to democracy based on the belief that democracy is an extension of liberty into the realm of social decision-making. 68 Deference to the majority rule constitutes the flagship argument of judicial restraint 69 which emphasizes that in democratic governance, majority rule is a necessary principle. 70 Judicial restraint assumes a setting of a government that is democratic and republican in character. Within this democratic and republican framework, both the apostles of judicial restraint and the disciples of judicial activism agree that government cannot act beyond the outer limits demarcated by constitutional boundaries without becoming subject to judicial intervention. The issue that splits them is the location of those limits. They are divided in delineating the territory within which government can function free of judicial intervention. Cases raising the question of whether an act by Congress falls within the permissible parameters of its discretion provide the litmus test on the correctness of judicial restraint as a school of thought. The democratic value assists the judicial restraintist in arriving at an answer. It nudges the judge who considers democracy as an intrinsic and fundamental value to grant that the discretion of the legislature is large and that he cannot correct any act or enactment that comes before the court solely because it is believed to be unwise. The judge will give to the legislature the leeway to develop social policy and apart from what the Constitution proscribes, concede that the legislature has a "right to be wrong" and will be answerable alone to the people for the exercise of that unique privilege. It is better for the majority to make a mistaken policy decision, within broad limits, than for a judge to make a correct one. 71 As an unelected official, bereft of a constituency and without any political accountability, the judge considers that respect for majoritarian government compels him to be circumspect in invalidating, on constitutional grounds, the considered judgments of legislative or executive officials, whose decisions are more likely to reflect popular sentiments. 72 Judicial restraint thus gives due deference to the judiciary's co-equal political branches of government comprised of democratically elected officials and lawmakers, and encourages separation of powers. 73 It is consistent and congruent with the concept of balance of power among the three independent branches of government. It does not only recognize the equality of the other two branches with the judiciary, but fosters that equality by minimizing inter-branch interference by the judiciary. It may also be called judicial respect, that is, respect by the judiciary for other co-equal branches. In one of the earliest scholarly treatments of judicial review, "The Origin and Scope of the American Doctrine of Constitutional Law", published in 1893, Prof. James Bradley Thayer of Harvard established strong support for the rule that courts should invalidate legislative acts only when their unconstitutionality is established with great certainty. 74 Many commentators agree that early notions of judicial review adhered to a "clear-error" rule

that courts should not strike down legislation if its constitutionality were merely subject to doubt. 75 For Thayer, full and free play must be allowed to "that wide margin of considerations which address themselves only to the practical judgment of a legislative body." Thayer's thesis of judicial deference had a significant influence on Justices Holmes, Brandeis, and Frankfurter. 76 Justice Frankfurter is the philosopher of the school of thought trumpeting judicial restraint. As he observed "if judges want to be preachers, they should dedicate themselves to the pulpit; if judges want to be primary shapers of policy the legislature is their place. 77 He opined that there is more need for justices of the Supreme Court to learn the virtue of restraint for the cases they consider "leave more scope for insight, imagination and prophetic responsibility." 78

Adherents of judicial restraint warn that under certain circumstances, the active use of judicial review has a detrimental effect on the capacity of the democratic system to function effectively. Restraintists hold that large-scale reliance upon the courts for resolution of public problems could lead in the long run to atrophy of popular government and collapse of the "broad-based political coalitions and popular accountability that are the lifeblood of the democratic system." 79 They allege that aggressive judicial review saps the vitality from constitutional debate in the legislature. 80 It leads to democratic debilitation where the legislature and the people lose the ability to engage in informed discourse about constitutional norms. 81 Judicial restraint, however, is not without criticisms. Its unbelievers insist that the concept of democracy must include recognition of those rights that make it possible for minorities to become majorities. They charge that restraintists forget that minority rights are just as important a component of the democratic equation as majority rule is. They submit that if the Court uses its power of judicial review to guarantee rights fundamental to the democratic process freedoms of speech, press, assembly, association and the right to suffrage so that citizens can form political coalitions and influence the making of public policy, then the Court would be just as "democratic" as Congress. Critics of judicial restraint further stress that under this theory, the minority has little influence, if at all it can participate, in the political process. Laws will reflect the beliefs and preferences of the majority, i.e., the mainstream or median groups. 82 The restraintist's position that abridgments of free speech, press, and association and other basic constitutional rights should be given the same deference as is accorded legislation affecting property rights, will perpetuate suppression of political grievances. Judicial restraint fails to recognize that in the very act of adopting and accepting a constitution and the limits it specifies, the majority imposes upon itself a self-denying ordinance. It promises not to do what it otherwise could do: to ride roughshod over the dissenting minorities. 83 Thus, judicial activists hold that the Court's indispensable role in a system of government founded on doctrines of separation of powers and checks and balances is a

legitimator of political claims and a catalyst for the aggrieved to coalesce and assert themselves in the democratic process. 84 I most respectfully submit, however, that the 1987 Constitution adopted neither judicial restraint nor judicial activism as a political philosophy to the exclusion of each other. The expanded definition of judicial power gives the Court enough elbow room to be more activist in dealing with political questions but did not necessarily junk restraint in resolving them. Political questions are not undifferentiated questions. They are of different variety. The antagonism between judicial restraint and judicial activism is avoided by the coordinacy theory of constitutional interpretation. This coordinacy theory gives room for judicial restraint without allowing the judiciary to abdicate its constitutionally mandated duty to interpret the constitution. Coordinacy theory rests on the premise that within the constitutional system, each branch of government has an independent obligation to interpret the Constitution. This obligation is rooted on the system of separation of powers. 85 The oath to "support this Constitution," which the constitution mandates judges, legislators and executives to take proves this independent obligation. Thus, the coordinacy theory accommodates judicial restraint because it recognizes that the President and Congress also have an obligation to interpret the constitution. In fine, the Court, under the coordinacy theory, considers the preceding constitutional judgments made by other branches of government. By no means however, does it signify complete judicial deference. Coordinacy means courts listen to the voice of the President and Congress but their voice does not silence the judiciary. The doctrine in Marbury v. Madison 86 that courts are not bound by the constitutional interpretation of other branches of government still rings true. As well stated, "the coordinacy thesis is quite compatible with a judicial deference that accommodates the views of other branches, while not amounting to an abdication of judicial review." 87 With due respect, I cannot take the extreme position of judicial restraint that always defers on the one hand, or judicial activism that never defers on the other. I prefer to take the contextual approach of the coordinacy theory which considers the constitution's allocation of decision-making authority, the constitution's judgments as to the relative risks of action and inaction by each branch of government, and the fears and aspirations embodied in the different provisions of the constitution. The contextual approach better attends to the specific character of particular constitutional provisions and calibrates deference or restraint accordingly on a case to case basis. In doing so, it allows the legislature adequate leeway to carry out their constitutional duties while at the same time ensuring that any abuse does not undermine important constitutional principles. 88 I shall now proceed to balance these constitutional values. Their correct calibration will compel the conclusion that this Court should defer the exercise of its ultimate jurisdiction over the petitions at bar out of prudence and respect to the initial exercise by the

legislature of its jurisdiction over impeachment proceedings. First, judicial deferment of judgment gives due recognition to the unalterable fact that the Constitution expressly grants to the House of Representatives the "exclusive" power to initiate impeachment proceedings and gives to the Senate the "sole" power to try and decide said cases. The grant of this power the right to accuse on the part of the House and the right to try on the part of the Senate to Congress is not a happenstance. At its core, impeachment is political in nature and hence its initiation and decision are best left, at least initially, to Congress, a political organ of government. The political components of impeachment are dominant and their appreciation are not fit for judicial resolution. Indeed, they are beyond the loop of judicial review. Second, judicial deferment will, at the very least, stop our descent to a constitutional crisis. Only those with the armor of invincible ignorance will cling to the fantasy that a stand-off between this Court and Congress at this time will not tear asunder our tenuous unity. There can be no debate on the proposition that impeachment is designed to protect the principles of separation of powers and checks and balances, the glue that holds together our government. If we weaken the glue, we shall be flirting with the flame of disaster. An approach that will bring this Court to an irreversible collision with Congress, a collision where there will be no victors but victims alone, is indefensible. The 1924 case of Alejandrino v. Quezon 89 teaches us that the system of checks and balances should not disturb or harm the harmony in government. This theme resonates in the 1936 case of Angara v. Electoral Commission, where Justice Laurel brightlined the desideratum that the principle of checks and balances is meant "to secure coordination in the workings of the various departments of the government." Our government has three branches but it has but one purpose to preserve our democratic republican form of government and I refuse to adopt an approach that refuses to reconcile the powers of government. Third, the Court should strive to work out a constitutional equilibrium where each branch of government cannot dominate each other, an equilibrium where each branch in the exercise of its distinct power should be left alone yet bereft of a license to abuse. It is our hands that will cobble the components of this delicate constitutional equilibrium. In the discharge of this duty, Justice Frankfurter requires judges to exhibit that "rare disinterestedness of mind and purpose, a freedom from intellectual and social parochialism." The call for that quality of "rare disinterestedness" should counsel us to resist the temptation of unduly inflating judicial power and deflating the executive and legislative powers. The 1987 Constitution expanded the parameters of judicial power, but that by no means is a justification for the errant thought that the Constitution created an imperial judiciary. An imperial judiciary composed of the unelected, whose sole constituency is the blindfolded lady without the right to vote, is counter-majoritarian, hence, inherently inimical to the central ideal of democracy. We cannot pretend to be an imperial judiciary for in a government whose cornerstone rests on the doctrine of separation of powers, we cannot be the repository of all remedies. It is true that this Court has been called the conscience of the Constitution and the last bulwark of constitutional government. 90 But that does not diminish the role of the legislature as co-guardian of the Constitution. In the words of Justice Cardozo, the "legislatures are ultimate guardians of the liberties and welfare of the people in quite as

great a degree as courts." 91 Indeed, judges take an oath to preserve and protect the Constitution but so do our legislators. Fourth, we have the jurisdiction to strike down impermissible violations of constitutional standards and procedure in the exercise of the power of impeachment by Congress but the timing when the Court must wield its corrective certiorari power rests on prudential considerations. I agree that judicial review is no longer a matter of power for if it were power alone we can refuse to exercise it and yet be right. As well put by Justice Brandeis, "the most important thing we decide is what not to decide." Indeed, judicial review is now a matter of duty, and it is now wrong to abdicate its exercise. Be that as it may, the timing of its exercise depends on the sense of the situation by the Court and its sense depends on the exigencies created by the motion and movement of the impeachment proceedings and its impact on the interest of our people. We are right in ruling we have jurisdiction but the wrong timing of the exercise of our jurisdiction can negate the existence of our very jurisdiction and with catastrophic consequence. The words of former Senate President Jovito Salonga, an amicus curiae, ought to bridle our rush to judgment this Court will eventually have jurisdiction but not yet. I quote his disquisition, viz:

Assuming the question of propriety can be surmounted, should the Supreme Court render a decision at this time? This brings us back to the realities of the 2nd Impeachment Complaint and the question of propriety posed earlier. 1.There are moves going on to get enough members of Congress to withdraw their signatures down to 75 or less, even before the resumption of the sessions on November 10, 2003, so as to render this whole controversy moot and academic. Malacaang is also pushing for a Covenant which may or may not succeed in ending the controversy. 2.Assuming the desired number of withdrawals is not achieved and the Covenant does not gain enough support among the NPC congressmen, there are still a number of steps to be taken in the House in connection with the First Impeachment Complaint before the Second Impeachment Complaint can be transmitted to the Senate. Moreover, if it is true that the House Committee on Justice has not yet finished its inquiry into the administration of the Judicial Development Fund, the Committee may be persuaded to call the officials of the Commission on Audit to explain the COA Special Audit Report of September 5, 2003 and help the Committee Chair and members to carry out and complete their work, so the Committee can submit its Report to the entire House for its information and approval.

I understand a number of congressmen may also raise the question of compliance with the due process clause in handling the Impeachment Complaint against Chief Justice Davide, particularly the twin requirements of notice and hearing. It may be too early to predict whether the House session on November 10, 2003 (and perhaps in the succeeding days), will be smooth and easy or rough and protracted. Much will depend on developments after this hearing in this Court (on November 5). In politics, it has been said, one day especially in Congress can be a long, long time. 3.Whatever happens in the House, a lot of things can happen outside in the streets, in the stock market, in media, in Government and in public assemblies throughout the country. All these will have a great bearing on what happens in the House and in the Senate. 4.If the 2nd Impeachment Complaint finally reaches the Senate, a number of things can be done before the Senate is convened as an Impeachment Court. For example, the Senate, which has the primary jurisdiction over the case, can decide the question of whether the one-year ban has been violated or not. Likewise, the Senate can decide whether the Complaint, on its face, has any legal basis. Considering, among other things, that only two congressmen filed the 2nd Impeachment Complaint the other congressmen were mere endorsers the Complaint cannot qualify for Senate Impeachment trial as pointed out by Attys. Macalintal and Quadra. Dismissal of the 2nd Impeachment Complaint can be done by the Senate motu proprio or through a Motion to Quash filed on behalf of Chief Justice Davide. If the Senate decides that the one-year ban has been violated or that the Complaint on its face has no leg to stand on, this could be the end of the whole controversy. My point is that there may be no urgent need for this august tribunal to render a decision at this point. The Supreme Court, which has final jurisdiction on questions of constitutionality, should be the final arbiter; it should be the authoritative court of last resort in our system of democratic governance. In my view, all the remedies in the House and in the Senate should be exhausted first. Only when this case is ripe for judicial determination can the Supreme Court speak with great moral authority and command the respect and loyalty of our people.

Few will dispute that former Senate President Salonga has the power of a piercing insight. CONCLUSION In summary, I vote as follows:

1.grant the locus standi of the petitioners considering the transcendental constitutional issues presented; 2.hold that it is within the power of this Court to define the division of powers of the branches of government; 3.hold that the alleged violation of Article XI, Section 3 (5) of the Constitution which provides that "no impeachment proceedings shall be initiated against the same official more than once within a period of one year" is a justiciable issue and hence within the competence of this Court to decide; and 4.hold that the coordinacy theory of constitutional interpretation and prudential considerations demand that this Court defer the exercise of its certiorari jurisdiction on the issue of alleged violation of Article XI, Section 3 (5) of the Constitution until after the remedies against impeachment still available in both the House of Representatives and the Senate shall have been exhausted. In light of the above, I vote to dismiss the petitions at bar. VITUG, J .:
"THE PHILIPPINES IS A DEMOCRATIC AND REPUBLICAN STATE. SOVEREIGNTY RESIDES IN THE PEOPLE AND ALL GOVERNMENT AUTHORITY EMANATES FROM THEM." 1

A Republican form of government rests on the conviction that sovereignty should reside in the people and that all government authority must emanate from them. It abhors the concentration of power on one or a few, cognizant that power, when absolute, can lead to abuse, but it also shuns a direct and unbridled rule by the people, a veritable kindling to the passionate fires of anarchy. Our people have accepted this notion and decided to delegate the basic state authority to principally three branches of government the Executive, the Legislative, and the Judiciary each branch being supreme in its own sphere but with constitutional limits and a firm tripod of checks and balances. The Constitution is the written manifestation of the sovereign will of the people. It is the yardstick upon which every act of governance is tested and measured. Today, regrettably, a looming threat of an overreaching arm of a "co-equal" branch of government would appear to be perceived by many. On 02 June 2003, a complaint for impeachment was filed before the House of Representatives against the Chief Justice of the Philippines and seven associate justices of the Supreme Court. On 23 October 2003, a second complaint for impeachment was filed by two members of the House, endorsed by at least one-third of its membership, but this time, only against the Chief Justice.

People took to the streets; media reported what it termed to be an inevitable constitutional crisis; the business sector became restive; and various other sectors expressed alarm. The Court itself was swarmed with petitions asking the declaration by it of the total nullity of the second impeachment complaint against the Chief Justice for being violative of the constitutional proscription against the filing of more than one impeachment complaint against the same impeachable officer within a single year. Thus, once again, yet perhaps one of the toughest test in its more than one hundred years of existence, the Court, has been called upon to act. Involved are no longer just hypothetical principles best left as fodder for academic debate; this time, the core values of separation of powers among the co-equal branches of the government, the principle of checks and balances, and explicit constitutional mandates and concepts come into sharp focus and serious scrutiny. Must the Supreme Court come into grips and face the matter squarely? Or must it tarry from its duty to act swiftly and decisively under the umbrella of judicial restraint? The circumstances might demand that the Court must act dispassionately and seasonably. Nothing in our history suggests that impeachment was existent in the Philippines prior to the 1935 Constitution. Section 21 of the Jones Law only mentions of an executive officer whose official title shall be "the Governor General of the Philippine Islands" and provides that he holds office at the pleasure of the President and until his successor is chosen and qualified. 2 The impeachment provision, which appeared for the first time in the 1935 Constitution was obviously a transplant, among many, of an American precept into the Philippine landscape. The earliest system of impeachment existed in ancient Greece, in a process called eisangelia. 3 In its modern form, the proceeding first made its appearance in 14th century England in an attempt by the fledgling parliament to gain authority over the advisers, ministers and judges of the monarch who was then considered incapable of any wrongdoing. 4 The first recorded case was in 1376, when Lords Latimer and Neville, together with four commoners, were charged with crimes, i.e., for removing the staple from Calais, for lending the King's money at usurious interest, and for buying Crown debts for small sums and paying themselves in full out of the Treasury. 5 Since the accession of James I in 1603, the process was heavily utilized, 6 its application only declining and eventually becoming lost to obsolescence during the 19th century when, with the rise of the doctrine of ministerial responsibility, the parliament, by mere vote of censure or "no confidence", could expeditiously remove an erring official. 7 It was last used in England in 1806, in an unsuccessful attempt to remove Lord Melville. 8 While the procedure was dying out in England, the framers of the United States Constitution embraced it as a "method of national inquest into the conduct of public

men." 9 The provision in the American Federal Constitution on impeachment simply read
"The President, Vice-President, and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors." 10

While the American impeachment procedure was shaped in no small part by the English experience, 11 records of the US Constitutional Convention would reveal that the Framers took pains to distinguish American impeachment from British practice. 12 Some notable differences included the fact that in the United States, the proceedings might be directed against civil officials such as the chief of state, members of the cabinet and those in the judiciary. In England, it could be applied against private citizens, or commoners, for treason and other high crimes and misdemeanors; and to peers, for any crime. 13 While the British parliament had always refused to contain its jurisdiction by restrictively defining impeachable offenses, the US Constitution narrowed impeachable offenses to treason, bribery, or other high crimes and misdemeanors. English impeachments partook the nature of a criminal proceeding; while the US Constitution treated impeachment rather differently. 14 Variations of the process could be found in other jurisdictions. In Belgium, France, India, Italy, and in some states in the United States, it had been the courts, which conducted trial. 15 In Republic of China (Taiwan) and Cuba, it would be an executive body which could initiate impeachment proceedings against erring civil officials. 16

The 1987 Constitution provides, under its Sections 2 and 3, Article XI, the skeletal constitutional framework of the impeachment process in the Philippines
Section 2.The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. Section 3.(1)The House of Representatives shall have the exclusive power to initiate all cases of impeachment. (2)A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its members, shall submit its report to the House within sixty session days from

such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. (3)A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee or override its contrary resolution. The vote of each Member shall be recorded. (4)In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (5)No impeachment proceedings shall be initiated against the same official more than once within a period of one year. (6)The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate. (7)Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial and punishment according to law. (8)The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section.

As a proceeding, impeachment might be so described thusly First, it is legal and political in nature and, second, it is sui generis neither a criminal or administrative proceeding, but partaking a hybrid characteristic of both and retaining the requirement of due process basic to all proceedings. 17 Its political nature is apparent from its function as being a constitutional measure designed to protect the State from official delinquencies and malfeasance, the punishment of the offender being merely incidental. 18 Although impeachment is intended to be non-partisan, the power to impeach is nevertheless lodged in the House of Representatives, whose members are highly responsive to political and partisan influences. The trial by the Senate is thought to reduce the likelihood of an impeachment case being decided solely along political lines. With its character of being part criminal and part administrative, carrying the punitive sanction not only of removal and disqualification from office but likewise the stigmatization of the offender, 19 an impeachment proceeding does not exactly do away with basic evidentiary rules and rudimentary due process requirements of notice and hearing.

The House of Representatives is the repository of the power to indict; it has the "exclusive power to initiate all cases of impeachment." But, unlike the American rule 20 from which ours has been patterned, this power is subject to explicit Constitutional guidelines and proscriptions. Its political discretion extends, albeit within constitutional parameters, to the formulation of its rules of impeachment and the determination of what could constitute impeachable offenses. The impeachable offenses of "bribery," "graft and corruption" and "treason" are clearly defined in criminal statute books. The terms "high crimes", "betrayal of public trust", and "culpable violation of the Constitution," however, elude exact definition, and by their nature, cannot be decided simply by reliance on parsing criminal law books 21 but, although nebulous, all three obviously pertain to 'fitness for public office,' the determination of which allows the exercise of discretion. Excluding any definite checklist of impeachable offenses in the Constitution is a wise measure meant to ensure that the House is not unduly impeded by unwise restrictive measures, which may be rendered obsolete with a changed milieu; 22 otherwise, it would have made more sense to give the power to the judiciary, which is the designated arbiter of cases under traditionally determinate or readily determinable rules. 23 A broad grant of powers, nonetheless, can lead to apprehensions that Congress may extend impeachment to any kind of misuse of office that it may find intolerable. 24 At one point, Gerald Ford has commented that "an impeachable offense is whatever the House of Representatives considers it to be at a given moment." 25 The discretion, broad enough to be sure, should still be held bound by the dictates of the Constitution that bestowed it. Thus, not all offenses, statutory or perceived, are impeachable offenses. While some particular misconduct might reveal a shortcoming in the integrity of the official, the same may not necessarily interfere with the performance of his official duties or constitute an unacceptable risk to the public so as to constitute an impeachable offense. Other experts suggest the rule of ejusdem generis, i.e., that "other high crimes," "culpable violation of the constitution" and "betrayal of public trust" should be construed to be on the same level and of the same quality as treason or bribery. George Mason has dubbed them to be "great crimes," "great and dangerous offenses," and "great attempts to subvert the Constitution," 26 which must, according to Alexander Hamilton, be also offenses that proceed from abuse or violation of some public trust, and must "relate chiefly to injuries done immediately to society itself." 27 These political offenses should be of a nature, which, with peculiar propriety, would cause harm to the social structure. 28 Otherwise, opines James Madison, any unbridled power to define may make impeachment too easy and would effectively make an official's term subject to the pleasure of Congress, thereby greatly undermining the separation of powers. Thus, where the House of Representatives, through its conduct or through the rules it promulgates, transgresses, in any way, the detailed procedure prescribed in the Constitution, the issue is far removed from the sphere of a "political question," which arises with the exercise of a conferred discretion, and transformed into a constitutional issue falling squarely within the jurisdictional ambit of the Supreme Court as being the interpreter of the fundamental law.

The issue of "political question" is traditionally seen as an effective bar against the exercise of judicial review. The term connotes what it means, a question of policy, i.e., those issues which, under the Constitution, are to be decided by the people in their sovereign capacity in regard to which full discretionary authority has been delegated to either the Legislature or Executive branch of the government. It is concerned with the wisdom, not with the legality, of a particular act or measure. 29 The Court should not consider the issue of "political question" as foreclosing judicial review on an assailed act of a branch of government in instances where discretion has not, in fact, been vested, yet assumed and exercised. Where, upon the other hand, such discretion is given, the "political question doctrine" may be ignored only if the Court sees such review as necessary to void an action committed with grave abuse of discretion amounting to lack or excess of jurisdiction. In the latter case, the constitutional grant of the power of judicial review vested by the Philippine Constitution on the Supreme Court is rather clear and positive, certainly and textually broader and more potent than where it has been borrowed. The Philippine Constitution states 30
"Judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. "Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." 31

Even before it emerged in the 1987 Constitution, early jurisprudence, more than once, supported the principle. In Avelino vs. Cuenco, 32 the Court passed upon the internal rules of the Senate to determine whether the election of Senator Cuenco to the Senate Presidency was attended by a quorum. In Macias vs. COMELEC, 33 the Court rejected American precedents and held the apportionment of representative districts as not being a political question. In Taada vs. Macapagal, 34 the Supreme Court took cognizance of the dispute involving the formation of the Senate Electoral Tribunal. In Cunanan vs. Tan, 35 the Court pronounced judgment on whether the Court had formed the Commission on Appointments in accordance with the directive of the Constitution. In Lansing vs. Garcia 36 , the Court held that the suspension of the privilege of the writ of habeas corpus was not a political question because the Constitution had set limits to executive discretion.

To be sure, the 1987 Constitution has, in good measure, "narrowed the reach of the 'political question doctrine' by expanding the power of judicial review of the Supreme Court not only to settle actual controversies involving rights which are legally

demandable and enforceable but also to determine whether or not grave abuse of discretion has attended an act of any branch or instrumentality of government. 37 When constitutional limits or proscriptions are expressed, discretion is effectively withheld. Thus, issues pertaining to who are impeachable officers, the number of votes necessary to impeach and the prohibition against initiation of impeachment proceeding twice against the same official in a single year, provided for in Sections 2, 3, 4, and 5 of Article XI of the Constitution, verily are subject to judicial inquiry, and any violation or disregard of these explicit Constitutional mandates can be struck down by the Court in the exercise of judicial power. In so doing, the Court does not thereby arrogate unto itself, let alone assume superiority over, nor undue interference into the domain of, a coequal branch of government, but merely fulfills its constitutional duty to uphold the supremacy of the Constitution. 38 The Judiciary may be the weakest among the three branches of government but it concededly and rightly occupies the post of being the ultimate arbiter on, and the adjudged sentinel of, the Constitution. Recent developments in American jurisprudence, steeped only in cautious traditions, would allow recourse to the judiciary in areas primarily seen as being left to the domain of the discretionary powers of the other two branches of government. In Nixon vs. United States 39 , Walter L. Nixon, Jr., an impeached federal court judge, assailed the impeachment procedure of the Senate before the Supreme Court. Speaking for the Court, Chief Justice Rehnquist acknowledged that courts defer to the Senate as to the conduct of trial but he, nevertheless, held
"In the case before us, there is no separate provision of the Constitution which could be defeated by allowing the Senate final authority to determine the meaning of the word "try" in the Impeachment Trial Clause. We agree with Nixon that courts possess power to review either legislative or executive action that transgresses identifiable textual limits. As we have made clear, "whether the action (of either Legislative or Executive Branch) exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is the responsibility of this Court as the ultimate interpreter of the Constitution."

In his separate opinion, Justice Souter also considered the legal possibility of judicial interference if the Senate trial were to ignore fundamental principles of fairness so as to put to grave doubt the integrity of the trial itself 40
"If the Senate were to act in a manner seriously threatening the integrity of its results, convicting, say, upon a coin toss or upon a summary determination that an officer of the United States was simply "a bad guy" judicial interference might well be appropriate. In such circumstances, the Senate's action might be so far beyond the scope of its constitutional authority and the consequent impact

on the Republic so great, as to merit a judicial response despite the prudential concerns that would ordinarily counsel silence."

In the earlier case of Powell vs. McCormick, 41 the US Supreme Court has ruled that while Congress possesses the power to exclude and expel its members, judicial review would be proper to determine whether Congress has followed the proper procedure for making the political decision committed to it by the Constitution. Powell has clarified that while the Court cannot interfere with the decision of the House to exclude its members, it nonetheless is within its powers to ensure that Congress follows the constitutional standards for expulsion. 42 Powell demonstrates, first, that whether a matter is a political question depends on the fit between the actual legal procedure chosen by Congress and the circumstances to which Congress attempts to apply the procedure and, second, that the choice and application of a procedure by Congress are reviewable by the federal courts to ensure that Congress has done no more than the Constitution allows. 43 Summing up, a Constitutional expert, Jonathan Turley observes that there may be judicial review of static constitutional provisions on impeachment while leaving actual decisions of either house unreviewable, 44 and any departure from the constitutionally mandated process would be subject to corrective ruling by the courts. 45 Petitioners contend that respondents committed grave abuse of discretion when they considered the second complaint for impeachment in defiance of the constitutional prohibition against initiating more than one complaint for impeachment against the same official within a single year. Indeed, Article XI, Section 3 (5) of the 1987 Constitution is explicit. "No impeachment proceedings shall be initiated against the same official more than once within a period of one year." But respondents, citing House Rules of Procedure in Impeachment Proceedings, argue that a complaint is deemed initiated only in three instances: 1) when there is a finding by the Committee on Justice that the verified complaint or resolution is sufficient in substance, 2) when the House votes to overturn or affirm the finding of the said Committee, and 3), upon filing of the verified complaint or resolution of impeachment with the Secretary general after a verified complaint or resolution of impeachment is filed or endorsed by at least 1/3 of the members of the House. 46 Thus, respondents assert that the first complaint against the Chief Justice could not qualify as an "initiated complaint" as to effectively bar the second complaint. Petitioners, however, insist that "initiation," as so used in the Constitution, should be understood in its simple sense, that is, when the complaint for impeachment is filed before the House and the latter starts to act thereon. I would second the view 47 that the term "initiate" should be construed as the physical act of filing the complaint, coupled with an action by the House taking cognizance of it, i.e., referring the complaint to the proper Committee. Evidently, the House of Representatives had taken cognizance of the first complaint and acted on it 1) The complaint was filed on 02 June 2003 by former President Joseph Estrada along with the resolutions of

endorsement signed by three members of the House of Representatives; 2) on 01 August 2003, the Speaker of the House directed the chairman of the House Committee on Rules, to include in the Order of Business the complaint; 3) on 13 October 2003, the House Committee on Justice included the complaint in its Order of Business and ruled that the complaint was sufficient in form; and 4) on 22 October 2003, the House Committee on Justice dismissed the complaint for impeachment against the eight justices, including Chief Justice Hilario Davide, Jr., of the Supreme Court, for being insufficient in substance. The following day, on 23 October 2003, the second impeachment complaint was filed by two members of the House of Representatives, accompanied by an endorsement signed by at least one-third of its membership, against the Chief Justice. Some final thoughts. The provisions expressed in the Constitution are mandatory. The highly political nature of the power to impeach can make the proceeding easily fraught with grave danger. Hamilton uncannily foresaw in the impeachment process a potential cause of great divide "In many cases, it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases, there will be the greatest danger that the decision will be regulated more by the comparative strength of the parties than by the real demonstrations of innocence or guilt." 48 This forewarning should emphasize that impeachment is a remedy and a tool for justice and public good and never intended to be used for personal or party gain. Despite having conceded the locus standi of petitioners and the jurisdiction of the Court, some would call for judicial restraint. I entertain no doubt that the advice is well-meant and understandable. But the social unrest and division that the controversy has generated and the possibility of a worsening political and constitutional crisis, when there should be none, do not appear to sustain that idea; indeed, the circumstances could well be compelling reasons for the Court to put a lid on an impending simmering foment before it erupts. In my view, the Court must do its task now if it is to maintain its credibility, its dependability, and its independence. It may be weak, but it need not be a weakling. The keeper of the fundamental law cannot afford to be a bystander, passively watching from the sidelines, lest events overtake it, make it impotent, and seriously endanger the Constitution and what it stands for. In the words of US Chief Justice Marshall
"It is most true that this Court will not take jurisdiction if it should not; but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of a jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the Constitution." 49

The issues have polarized the nation, the Courts action will be viewed with criticism, whichever way it goes, but to remain stoic in the face of extant necessity is a greater risk. The Supreme Court is the chosen guardian of the Constitution. Circumspection and good judgment dictate that the holder of the lamp must quickly protect it from the gusts of wind so that the flame can continue to burn.

I vote to grant the petitions on the foregoing basic issue hereinbefore expressed. Austria-Martinez, J ., concurs. PANGANIBAN, J ., concurring: I agree with the incisive ponencia of Mme. Justice Conchita Carpio Morales that the Court has jurisdiction over the Petitions, and that the second Impeachment Complaint is unconstitutional. However, I write to explain a few matters, some of which are uniquely relevant to my participation and vote in these consolidated cases. Reasons for My Initial Inhibition It will be recalled that when these consolidated Petitions were first taken up by this Court on October 28, 2003, I immediately inhibited myself, because one of herein petitioners, 1 Dean Antonio H. Abad Jr., was one of my partners when I was still practicing law. In all past litigations before the Court in which he was a party or a counsel, I had always inhibited myself. Furthermore, one of our eight invited amici curiae was former Senate President Jovito R. Salonga. I had always recused myself from all the cases before the Court in which he was involved. For instance, I did not take part in Bayan v. Zamora 2 because of my "close personal and former professional relations with a petitioner, Sen. J.R. Salonga." In Love God Serve Man, a book I wrote in 1994, prior to my appointment to the Supreme Court I explained my deeply rooted personal and professional relationship with Senator Salonga, which for brevity I will just quote in a footnote below. 3 There is also the lingering thought that the judgment I may make in these consolidated cases may present a conflict of interest because of the following considerations: 1.It may personally benefit me, considering that I am one of the eight justices who were charged by former President Joseph Ejercito Estrada in the first Impeachment Complaint; thus, a ruling barring the initiation of the second Impeachment Complaint within one year from that of the first would also proscribe any future indictment against me within the same period.

2.As a member of the Court, I used some facilities purchased or constructed with the Judiciary Development Fund (JDF). 3.I voted in favor of several unanimous en banc Resolutions of the Court affirming JDF expenditures recommended by some of its committees. 4 Despite my desired inhibition, however, the Court, in its Resolution dated October 28, 2003, "directed [me] to participate" in these cases. My colleagues believed that these Petitions presented novel and transcendental constitutional questions that necessitated the participation of all justices. Indeed, if the divergent views of several amici curiae, including retired SC members, had been sought, why not relax the stringent requirements of recusation and require the participation of all incumbent associate justices? And so, by reason of that Resolution, I had joined my colleagues in interacting with the "friends of the Court," the parties and their counsel in the lengthy but enlightening Oral Argument which lasted from morning to evening on November 5 and 6, 2003 and in the deliberations with my colleagues every day since then, including November 8 (Saturday) and November 9 (Sunday), 2003. Of course, I also meticulously pored over the written submissions of the parties and carefully referred to relevant laws and jurisprudence. I will no longer argue for or against the thought-provoking historical, philosophical, jurisprudential and prudential reasonings excellently put forward in the ponencia of Justice Conchita Carpio Morales and in the various Separate Opinions of my colleagues. I will just point out a few items that I believe are markedly relevant to my situation. Consolations vis--vis My Desired Inhibition First, although I have been given no choice by the Court except to participate, I still constantly kept in mind the grounds I had initially raised in regard to my recusation. Now, I take the consolation that although Dean Abad is a petitioner here, he however does not have a personal or direct interest in the controversy. Hence, any ruling I make or any vote I cast will not adversely affect him or redound to his direct or pecuniary benefit. On the other hand, Senator Salonga participated in this case neither as a party nor as a counsel, but as an amicus curiae. Thus, he is someone who was invited by the Court to present views to enlighten it in resolving the difficult issues in these cases, and not necessarily to advocate the cause of either petitioners or respondents. In fact, as will be shown later, I am taking a position not identical to his. During the Oral Argument on November 5, 2003, Amicus Joaquin G. Bernas shed some light on my question regarding the conflict of interest problem I have herein referred to earlier. He explained that in Perfecto v. Meer, 5 the Court had issued a judgment that, like in the present case, benefited its members because, inter alia, "jurisdiction may not be

declined"; and the issue "involved the right of other constitutional officers . . . equally protected by the Constitution." In addition, Atty. Jose Bernas, counsel for Petitioners Baterina et al., 6 also cited Nitafan v. Commissioner of Internal Revenue, 7 in which the Court in upholding the intent behind Article VIII, Section 10 of the Constitution had in fact ruled in a manner adverse to the interest of its members. This fact shows that in taking action over matters affecting them, justices are capable of ruling against their own interest when impelled by law and jurisprudence. Furthermore, in Abbas v. Senate Electoral Tribunal 8 (SET), the petitioners therein had sought to disqualify the senators who were members thereof from an election contest before the SET, on the ground that they were interested parties. The Court held that "the proposed mass disqualification, if sanctioned and ordered, would leave the Tribunal no alternative but to abandon a duty that no other court or body can perform, but which it cannot lawfully discharge if shorn of the participation of its entire membership of Senators." The Court further explained: 9
"To our mind, this is the overriding consideration that the Tribunal be not prevented from discharging a duty which it alone has the power to perform, the performance of which is in the highest public interest as evidenced by its being expressly imposed by no less than the fundamental law."

Moreover, the Court had the occasion to hold recently in Estrada v. Desierto 10 that "to disqualify any of the members of the Court, particularly a majority of them, is nothing short of pro tanto depriving the Court itself of its jurisdiction as established by the fundamental law. . . . It affects the very heart of judicial independence." Indeed, in the instant cases, the judgment will affect not just Supreme Court justices but also other high officials like the President, the Vice President and the members of the various constitutional commissions. Besides, the Petitions are asking for the resolution of transcendental questions, a duty which the Constitution mandates the Court to do. And if the six 11 other justices who, like me, were named respondents in the first Impeachment Complaint were also to inhibit themselves due to possible conflict of interest, the Court would be left without a majority (only seven would remain), and thus deprived of its jurisdiction. In a similar vein, the Court had opined in Perfecto that "judges would indeed be hapless guardians of the Constitution if they did not perceive and block encroachments upon their prerogatives in whatever form." 12 The Court's Assumption of Jurisdiction Mandated by the 1987 Constitution Second, in regard to the merits of the Petitions, unlike the 1973 and the 1935 Constitutions, the 1987 Constitution 13 in Article VIII, Section 1 thereof imposes upon the Supreme Court the duty to strike down the acts of "any branch or

instrumentality of the government" whenever these are performed "with grave abuse of discretion amounting to lack or excess of jurisdiction." During the Oral Argument on November 5, 2003 when the Court interacted with Justice Florenz D. Regalado, an amicus curiae, I pointed out that this unique provision of our 1987 Constitution differentiated the Philippine concept of judicial review from that held in the United States (US). Unlike the US Constitution, Article VIII, Section 1 of our present Constitution, is very specific as to what our courts must do: not only to settle actual controversies involving legally demandable and enforceable rights, but also to determine whether there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." Article VIII, Section 1, was crafted, precisely to remedy the judicial cop-outs that characterized the Martial Law era, during which the Court had invariably found its hands tied (or had conveniently avoided involvement) when faced with questions that were allegedly political in nature. 14 As a result, the Court at the time was unable to check all the constitutional excesses of the executive and the legislative branches of government. Thus, during the crafting of the 1987 Constitution, one of the eminent members of the Constitutional Commission, former Chief Justice Roberto Concepcion, actively sought to expand the scope of judicial review in definitive terms. The former Chief Justice, who authored Article VIII, Section 1, explained that the Supreme Court may not under any circumstance evade its duty to settle disputes involving grave abuse of discretion: 15
". . . [T]he powers of government are generally considered divided into three branches: the Legislative, the Executive and the Judiciary. Each one is supreme within its own sphere and independent of the others. Because of that supremacy[, the] power to determine whether a given law is valid or not is vested in courts of justice.

"Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature. "This is the background of paragraph 2 of Section 1 [of Article VIII of the 1987 Constitution], which means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute a political question." (Emphasis supplied.)

In effect, even if the question posed before the Court appears to be political in nature meaning, one that involves a subject over which the Constitution grants exclusive and/or sole authority either to the executive or to the legislative branch of the government the Court may still resolve the question if it entails a determination of grave abuse of discretion or unconstitutionality. The question becomes justiciable when the Constitution provides conditions, limitations or restrictions in the exercise of a power vested upon a specific branch or instrumentality. When the Court resolves the question, it is not judging the wisdom of an act of a coequal department, but is merely ensuring that the Constitution is upheld. The US Constitution does not impose upon its judiciary a similar duty to strike down grave abuse of discretion on the part of any government agency. It thus gives its magistrates the luxury of choosing between being passivists or activists when confronted with "political questions." As I explained during my discourse with Amicus Pacifico Agabin during the Oral Argument on November 6, 2003, many legal scholars characterize the US Supreme Court under Chief Justice Earl Warren as activist, and its present Court under Chief Justice William Rehnquist as generally conservative or passivist. Further explaining, I said that the Warren Court is widely known for having actively intervened in political, social and economic matters. It issued decisions favoring the poor and the underprivileged; and overhauled jurisprudence on the Bill of Rights to protect ethnic minorities, eliminate racial segregations, and uphold the civil liberties of the people. In contrast, the Rehnquist Court has taken mostly a hands-off stance on these issues and largely deferred to the discretion of the political branches of government in most political issues brought before it. 16 On the other hand, our Constitution has not given the same luxury of choice to jurists as that given in the US. By imposing upon our judges a duty to intervene and to settle issues of grave abuse of discretion, our Constitution has thereby mandated them to be activists. A duty cannot be evaded. The Supreme Court must uphold the Constitution at all times. Otherwise, it will be guilty of dereliction, of abandonment, of its solemn duty. Otherwise, it will repeat the judicial cop-outs that our 1987 Constitution abhors. Thus, in Taada v. Angara, 17 the Court clearly and unequivocally ruled that "[w]here an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. The question thus posed is judicial rather than political. The duty (to adjudicate) remains, to assure that the supremacy of the Constitution is upheld. Once a controversy as to the application or the interpretation of a constitutional provision is raised before the Court, it becomes a legal issue which the Court is bound by constitutional mandate to decide." The Court's Duty to Intervene in Impeachment Cases That Infringe the Constitution

Third, Sen. Aquilino Pimentel Jr., an intervenor, argues that Article XI of the Constitution grants the House of Representatives the "exclusive" power to initiate all cases of impeachment; and the Senate, the "sole" prerogative to try and decide them. He thus concludes that the Supreme Court has no jurisdiction whatsoever to intervene in such proceedings. With due respect, I disagree for the following reasons: 1.The Constitution imposes on the Supreme Court the duty to rule on unconstitutional acts of "any" branch or instrumentality of government. Such duty is plenary, extensive and admits of no exceptions. While the Court is not authorized to pass upon the wisdom of an impeachment, it is nonetheless obligated to determine whether any incident of the impeachment proceedings violates any constitutional prohibition, condition or limitation imposed on its exercise. Thus, normally, the Court may not inquire into how and why the House initiates an impeachment complaint. But if in initiating one, it violates a constitutional prohibition, condition or limitation on the exercise thereof, then the Court as the protector and interpreter of the Constitution is duty-bound to intervene and "to settle" the issue. This point was clearly explained by Chief Justice Concepcion in Javellana v. Executive Secretary 18 as follows:
"Accordingly, when the grant of power is qualified, conditional or subject to limitations, the issue on whether or not the prescribed qualifications or conditions have been met, or the limitations respected, it justiciable or nonpolitical, the crux of the problem being one of legality or validity of the contested act, not its wisdom. Otherwise, said qualifications, conditions or limitations particularly those prescribed or imposed by the Constitution would be set at naught. What is more, the judicial inquiry into such issue and the settlement thereof are the main functions of courts of justice under the Presidential form of government adopted in our 1935 Constitution, and the system of checks and balances, one of its basic predicates. As a consequence, We have neither the authority nor the discretion to decline passing upon said issue, but are under the ineluctable obligation made particularly more exacting and peremptory by our oath, as members of the highest Court of the land, to support and defend the Constitution to settle it." (Emphasis supplied.)

2.The Constitution likewise grants the electoral tribunals of both Houses of Congress the authority to be the "sole" judges of all contests relating to the election, the returns and the qualifications of their respective members. Still, the Supreme Court reviews the decisions of these tribunals on certiorari. 19 Its certiorari power, so exercised, has never been seriously questioned. 3.The Constitution has granted many powers and prerogatives exclusively to Congress. However, when these are exercised in violation of the Constitution or with grave abuse of discretion, the jurisdiction of the Court has been invoked; and its decisions thereon, respected by the legislative branch. Thus, in Avelino v. Cuenco, 20 the Court ruled on the

issue of who was the duly elected President of the Senate, a question normally left to the sole discretion of that chamber; in Santiago v. Guingona, 21 on who was the minority floor leader of the Senate; in Daza v. Singson 22 and Coseteng v. Mitra Jr., 23 on who were the duly designated members of the Commission on Appointments representing the House of Representatives. It was held in the latter two cases that the Court could intervene because the question involved was "the legality, not the wisdom, of the manner of filling the Commission on Appointment as prescribed by the Constitution."
DEScaT

In the present cases, the main issue is whether, in initiating the second Impeachment Complaint, the House of Representatives violated Article XI, Section 3(5), which provides that "[n]o impeachment proceedings shall be initiated against the same official more than once within a period of one year." The interpretation of this constitutional prohibition or condition as it applies to the second Impeachment Complaint clearly involves the "legality, not the wisdom" of the acts of the House of Representatives. Thus, the Court must "settle it." Observance of Due Process During the Initiation of Impeachment Fourth, during the Oral Argument, Senator Salonga and Petitioner Francisco Chavez denounced the second Impeachment Complaint as violative of due process. They argued that by virtue merely of the endorsement of more than one third of the members of the House of Representatives, the Chief Justice was immediately impeached without being afforded the twin requirements of notice and hearing. The proceedings were therefore null and void ab initio. I must agree. The due process clause, 24 enshrined in our fundamental law, is a conditio sine qua non that cannot be ignored in any proceeding administrative, judicial or otherwise. 25 It is deemed written into every law, rule or contract, even though not expressly stated therein. Hence, the House rules on impeachment, insofar as they do not provide the charged official with (1) notice and (2) opportunity to be heard prior to being impeached, are also unconstitutional. Constitutional Supremacy the Bedrock of the Rule of Law Fifth, I shall no longer belabor the other legal arguments (especially the meaning of the word "initiate") on why the second Impeachment Complaint is null and void for being violative of the one-year bar. Suffice it to say that I concur with Justice Morales. Let me just stress that in taking jurisdiction over this case and in exercising its power of judicial review, the Court is not pretending to be superior to Congress or to the President. It is merely upholding the supremacy of the Constitution and the rule of law. 26 To stress this important point, I now quote from Justice Jose P. Laurel in the landmark case Angara v. Electoral Commission, 27 which was decided in 1936:

"The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed 'judicial supremacy' which properly is the power of judicial review under the Constitution." (Italics supplied.)

Epilogue Having firmed up the foregoing position, I must admit that I was initially tempted to adopt the view of Amici Jovito R. Salonga and Raul C. Pangalangan. They maintain that although the Court had jurisdiction over the subject matter and although the second Impeachment Complaint was unconstitutional, the Court should nonetheless "use its power with care and only as a last resort" and allow the House to correct its constitutional errors; or, failing in that, give the Senate the opportunity to invalidate the second Complaint. This Salonga-Pangalangan thesis, which is being espoused by some of my colleagues in their Separate Opinions, has some advantages. While it preserves the availability of judicial review as a "last resort" to prevent or cure constitutional abuse, it observes, at the same time, interdepartmental courtesy by allowing the seamless exercise of the congressional power of impeachment. In this sense, it also enriches the doctrine of primary jurisdiction by enabling Congress to exercise fully its "exclusive" authority to initiate, try and decide impeachment cases. In short, it gives Congress the primary jurisdiction; and the Court, "appellate" certiorari power, over the case. Furthermore, the proponents of this deferential position add that the Senate may eventually rule that the second Impeachment Complaint is unconstitutional, and that the matter may thus be settled definitively. Indeed, the parties may be satisfied with the judgment of the Senate and, thus, obviate the need for this Court to rule on the matter. In this way, the latter would not need to grapple with the conflict of interest problem I have referred to earlier. With due respect, I believe that this stance of "passing the buck" even if made under the guise of deference to a coequal department is not consistent with the activist duty imposed by the Constitution upon this Court.

In normal times, the Salonga-Pangalangan formula would, perhaps, be ideal. However, the present situation is not ideal. Far from it. The past several weeks have seen the deep polarization of our country. Our national leaders from the President, the Senate President and the Speaker of the House down to the last judicial employee have been preoccupied with this problem. There have been reported rumblings of military destabilization and civil unrest, capped by an aborted siege of the control tower of the Ninoy Aquino International Airport on November 8, 2003. Furthermore, any delay in the resolution of the dispute would adversely affect the economy as well as the socio-political life of the nation. A transmittal of the second Impeachment Complaint to the Senate would disrupt that chamber's normal legislative work. The focus would shift to an unsettling impeachment trial that may precipitously divide the nation, as happened during the impeachment of former President Joseph Ejercito Estrada. A needless trial in the Senate would not only dislocate that chamber's legislative calendar and divide the nation's focus; but also unnecessarily bring anxiety, loss of time and irreparable injury on the part of the Chief Justice, who would not be able to attend to his normal judicial duties. The transmittal of the second Impeachment Complaint to the Senate would unfairly brand him as the first Supreme Court justice to be impeached! Moreover, President Gloria Macapagal Arroyo and Senate President Franklin M. Drilon have issued public statements 28 that they will abide by the decision of the Court as the ultimate arbiter and interpreter of the Constitution. Now, therefore, is the ripe time for the Court to decide, and to decide forthrightly and firmly. Merely deferring its decision to a later time is not an assurance of better times for our country and people. To be sure, the matters raised in the second Impeachment Complaint can be expeditiously taken up by the House of Representatives through an investigation in aid of legislation. The House can then dispassionately look into alleged irregular expenditures of JDF funds, without the rigors, difficulties, tensions and disruptive consequences of an impeachment trial in the Senate. The ultimate aim of discovering how the JDF was used and of crafting legislation to allocate more benefits to judicial employees may be achieved in a more judicious, peaceful and cordial manner. I close this Opinion with the truism that the judiciary is the "weakest" branch of government. Nonetheless, when ranged against the more powerful branches, it should never cower in silence. Indeed, if the Supreme Court cannot take courage and wade into "grave abuse" disputes involving the purse-disbursing legislative department, how much more deferential will it be when faced with constitutional abuses perpetrated by the even more powerful, sword-wielding executive department?

I respectfully submit that the very same weakness of the Court becomes its strength when it dares speak through decisions that rightfully uphold the supremacy of the Constitution and the rule of law. The strength of the judiciary lies not in its lack of brute power, but in its moral courage to perform its constitutional duty at all times against all odds. Its might is in its being right. WHEREFORE, I vote to declare the second Impeachment Complaint to be unconstitutional and time-barred by Article XI, Section 3, paragraph 5 of the Constitution. YNARES-SANTIAGO, J ., concurring and dissenting: The power of impeachment is essentially lodged by the Constitution in Congress. It is the process by which officials of the Government, not removable by other means, may be made to answer for certain offenses. These offenses are specifically enumerated as: culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, and betrayal of public trust. In the exercise of this power, Congress must observe the minimum requirements set by the Constitution. However, in the event that Congress oversteps these limitations, who can review its acts? Can the Supreme Court, under its power of judicial review enshrined in the Constitution, review the acts of a co-equal body? These are the novel issues raised in these petitions. The petitions before this Court assail the constitutionality of the impeachment complaint against Chief Justice Hilario G. Davide, Jr., contending that, being a second complaint, the same is expressly prohibited under Article XI, Section 3 (5) of the 1987 Constitution, which provides:
No impeachment proceedings shall be initiated against the same official more than once within a period of one year.

Respondents House of Representative and the Senate filed separate Manifestations both stating that they are not submitting to the jurisdiction of the Court. The House of Representatives invoked its territorial integrity which this Court, as a co-equal body, cannot encroach upon. For its part, the Senate pointed out that the petition as against it was premature inasmuch as it has not received any articles of impeachment. The Court set the petitions for oral arguments and invited the following as amici curiae: 1.Florenz D. Regalado, retired Justice of this Court; 2.Regalado E. Maambong, Justice of the Court of Appeals, 3.Fr. Joaquin C. Bernas, Dean of the Ateneo School of Law;

4.Hugo E. Gutierrez, Jr., retired Justice of this Court; 5.Estelito P. Mendoza, former Minister of Justice and Solicitor General; 6.Pacifico A. Agabin, former Dean of the University of the Philippines College of Law; 7.Raul C. Pangalangan, Dean of the University of the Philippines College of Law; and 8.Jovito R. Salonga, former Senate President. During the oral arguments, the principal issue and sub-issues involved in the several petitions were defined by the Court as follows:
Whether the certiorari jurisdiction of the Supreme Court may be invoked; who can invoke it; on what issues and at what time; and whether it should be exercised by this Court at this time. a)Locus standi of petitioners; b)Ripeness (prematurity; mootness) c)Political question/justiciability; d)House's exclusive power to initiate all cases of impeachment; e)Senate's sole power to try and decide all cases of impeachment; f)Constitutionality of the House Rules of Impeachment vis--vis Section 3 (5) of Article XI of the Constitution; and g)Judicial restraint.

In the appreciation of legal standing, 1 a developing trend appears to be towards a narrow and exacting approach, requiring that a logical nexus be shown between the status asserted and the claim sought to be adjudicated in order to ensure that one is the proper and appropriate party to invoke judicial power. 2 Nevertheless, it is still within the wide discretion of the Court to waive the requirement and remove the impediment to its addressing and resolving serious constitutional questions raised. 3 In the case at bar, petitioners allege that they dutifully pay their taxes for the support of the government and to finance its operations, including the payment of salaries and other emoluments of the respondents. They assert their right to be protected against all forms of needless spending of taxpayers' money including the commission of an unconstitutional

act, i.e., the filing of two impeachment cases within a period of one year against the Chief Justice of this Court, one of the three independent branches of the government. Considering these serious legal questions which affect public interest, I concur with the ponente that the petitioners, except Atty. Dioscoro U. Vallejos, Jr. in G.R. No. 160397, have satisfactorily established locus standi to file the instant petitions.

I also concur with the ponente that the Court has the power of judicial review. This power of the Court has been expanded by the Constitution not only to settle actual controversies involving rights which are legally demandable and enforceable but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. 4 The Court is under mandate to assume jurisdiction over, and to undertake judicial inquiry into, what may even be deemed to be political questions provided, however, that grave abuse of discretion the sole test of justiciability on purely political issues is shown to have attended the contested act. 5 The Court checks the exercise of power of the other branches of government through judicial review. It is the final arbiter of the disputes involving the proper allocation and exercise of the different powers under the Constitution. When the Supreme Court reviews the constitutionality of the acts of Congress, it does not thereby assert its superiority over a co-equal branch of government. It merely asserts its solemn and sacred obligation under the Constitution and affirms constitutional supremacy. 6 Indeed, in the resolution of the principal issue in these petitions, a distinction has to be drawn between the power of the members of the House of Representatives to initiate impeachment proceedings, on the one hand, and the manner in which they have exercised that power. While it is clear that the House has the exclusive power to initiate impeachment cases, and the Senate has the sole power to try and decide these cases, the Court, upon a proper finding that either chamber committed grave abuse of discretion or violated any constitutional provision, may invoke its corrective power of judicial review. The meaning of the word "initiate" in relation to impeachment is at the center of much debate. The confusion as to the meaning of this term was aggravated by the amendment of the House of Representatives' Rules of Procedure in Impeachment Proceedings. The first set of Rules adopted on May 31, 1988, specifically Rule V, Section 14 and Rule II, Section 2 thereof, provides that impeachment shall be initiated when a verified complaint for impeachment is filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, or when a verified complaint or resolution of impeachment is filed by at least one-third (1/3) of all the Members of the House. This provision was later amended on November 28, 2001. Rule V, Section 16 of the amendatory Rules states that impeachment proceedings under any of

the three methods above-stated are deemed initiated on the day that the Committee on Justice finds that the verified complaint and/or resolution against such official is sufficient in substance or on the date the House votes to overturn or affirm the finding of the said Committee that the verified complaint and/or resolution is not sufficient in substance. The adoption of the 2001 Rules, at least insofar as initiation of impeachment proceedings is concerned, unduly expanded the power of the House by restricting the constitutional time-bar only to complaints that have been "approved" by the House Committee on Justice. As stated above, the one-year bar is a limitation set by the Constitution which Congress cannot overstep. Indeed, the Records of the Constitutional Commission clearly show that, as defined in Article XI, Section 3 (5), impeachment proceedings begin not on the floor of the House but with the filing of the complaint by any member of the House of any citizen upon a resolution of endorsement by any Member thereof. This is the plain sense in which the word "initiate" must be understood, i.e., to begin or commence the action. Moreover, the second impeachment complaint was filed by only two complainants, namely Representatives Gilberto G. Teodoro, Jr. and Felix William B. Fuentebella. The rest of the members of the House whose names appear on the attachments thereto merely signed endorsements to the Complaint. Article XI, Section 3 (3) of the Constitution is explicit:
In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (Emphasis provided.)

The mere endorsement of the members of the House, albeit embodied in a verified resolution, did not suffice for it did not constitute filing of the impeachment complaint, as this term is plainly understood. In order that the verified complaint may be said to have been filed by at least 1/3 of the Members, all of them must be named as complainants therein. All of them must sign the main complaint. This was not done in the case of the assailed second impeachment complaint against the Chief Justice. The complaint was not filed by at least one-third of the Members of the House, and therefore did not constitute the Article of Impeachment. I am constrained to disagree with the majority decision to discard the above issue for being unnecessary for the determination of the instant cases. On the contrary, the foregoing defect in the complaint is a vital issue in the determination of whether or not the House should transmit the complaint to the Senate, and if it does, whether the Senate should entertain it. The Constitution is clear that the complaint for impeachment shall constitute the Articles of Impeachment, without need of referral to the Committee on

Justice, when the complaint is filed by at least one-third of all the Members of the House. Being the exception to the general procedure outlined in the Constitution, its formal requisites must be strictly construed. Furthermore, the mere fact that this issue was raised by intervenors Romulo Macalintal and Pete Quirino-Quadra, and not by the petitioners in G.R. No. 160262, is of no moment. The Court is empowered to decide issues even though they are not raised in the pleadings. 7 In the case at bar, the question is already before this Court and may therefore be resolved. The impeachment complaint suffers from yet another serious flaw. As one of the amici curiae, former Senate President Jovito Salonga, pointed out, the signing of the impeachment complaint by the purported 1/3 of the Congressmen was done without due process. The Chief Justice, against whom the complaint was brought, was not served notice of the proceedings against him. No rule is better established, under the due process clause of the constitution, than that which requires notice and opportunity to be heard before any person can be lawfully deprived of his rights. 8 Indeed, when the Constitution says that no person shall be deprived of life, liberty, or property without due process of law, 9 it means that every person shall be afforded the essential element of notice in any proceeding. Any act committed in violation of due process may be declared null and void. 10 However, notwithstanding the constitutional and procedural defects in the impeachment complaint, I dissent from the majority when it decided to resolve the issues at this premature stage. I submit that the process of impeachment should first be allowed to run its course. The power of this Court as the final arbiter of all justiciable questions should come into play only when the procedure as outlined in the Constitution has been exhausted. The complaint should be referred back to the House Committee on Justice, where its constitutionality may be threshed out. Thereafter, if the Committee so decides, the complaint will have to be deliberated by the House on plenary session, preparatory to its possible transmittal to the Senate. The questions on the sufficiency of the complaint in form may again be brought to the Senate by way of proper motion, and the Senate may deny the motion or dismiss the complaint depending on the merits of the grounds raised. After the Senate shall have acted in due course, its disposition of the case may be elevated to this Court pursuant to its judicial power of review. In addition, there are several other remedies that may be availed of or events that may occur that may render the present petitions moot and, in the process, effectively avert this controversy. Dean Raul Pangalangan of the University of the Philippines College of Law, one of the amici curiae, stressed that among the internal measures that the members of Congress could make to address the situation are: (1) attempts to encourage the signatories of the impeachment complaint to withdraw their signatures; (2) the raising by

the members of Congress themselves of the Constitutional questions when the Articles of Impeachment are presented in plenary session on a motion to transmit them to the Senate, as required by Section 15, paragraph 2 of the House Rules; and (3) assuming the Articles of Impeachment are transmitted to the Senate, Chief Justice Davide could conceivably raise the same Constitutional issues by way of a motion to dismiss or motion to quash. 11 Clearly, the unfinished business and loose ends at the House of Representatives and in the Senate, as well as the simmering forces outside of the halls of government could all preempt any decision of this Court at the present time. Senate President Salonga said it best when he commented that the Supreme Court, which has final jurisdiction on questions of constitutionality, should be the final arbiter; it should be the authoritative court of last resort in our system of democratic governance; but all remedies in the House of Representatives and in the Senate should be exhausted first. He goes on to say that only when this case is ripe for judicial determination can this Court speak with great moral authority and command the respect and loyalty of our people. 12 With these considerations in mind, the Court should recognize the extent and practical limitations of its judicial prerogatives, and identify those areas where it should carefully tread instead of rush in and act accordingly. Considering that power of impeachment was intended to be the legislature's lone check on the judiciary, exercising our power of judicial review over impeachment would place the final reviewing authority with respect to impeachments in the hands of the same body that the impeachment process is meant to regulate. 13 In fact, judicial involvement in impeachment proceedings, even if only for purposes of judicial review is counter-intuitive because it eviscerates the important constitutional check on the judiciary. 14

A becoming sense of propriety and justice dictates that judicial self-restraint should be exercised; that the impeachment power should remain at all times and under all circumstances with the legislature, where the Constitution has placed it. The commonlaw principle of judicial restraint serves the public interest by allowing the political processes to operate without undue interference. 15 The doctrine of separation of powers calls for each branch of government to be left alone to discharge its duties as it sees fit. Being one such branch, the judiciary will neither direct nor restrain executive or legislative action. 16 The legislative and the executive branches are not allowed to seek its advice on what to do or not to do; thus, judicial inquiry has to be postponed in the meantime. Before a court may enter the picture, a prerequisite is that something has been accomplished or performed by either branch. Then it may pass on the validity of what has been done but, then again, only when properly challenged in an appropriate legal proceeding. 17 Hence, any resolution that this Court might make in this case may amount to nothing more than an attempt at abstraction

that can only lead to barren legal dialectics and sterile conclusions, depending on what transpires next at the House of Representatives and the Senate. 18 IN VIEW WHEREOF, I CONCUR with the majority decision insofar as it held that (a)Petitioners in all the above-captioned cases, except Atty. Dioscoro U. Vallejos, Jr. in G.R. No. 160397, have legal standing to institute these petitions; and (b)The constitutionality of the second impeachment complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix William B. Fuentebella against Chief Justice Hilario G. Davide, Jr. is a justiciable issue which this Court may take cognizance of. However, I vote that this Court must observe judicial self-restraint at this time and DISMISS the instant petitions. SANDOVAL-GUTIERREZ, J., concurring: Never before in the 102-year existence of the Supreme Court has there been an issue as transcendental as the one before us. For the first time, a Chief Justice is subjected to an impeachment proceeding. The controversy caused people, for and against him, to organize and join rallies and demonstrations in various parts of the country. Indeed, the nation is divided which led Justice Jose C. Vitug to declare during the oral arguments in these cases, "God save our country!" The common thread that draws together the several petitions before this Court is the issue of whether the second impeachment complaint against Chief Justice Hilario G. Davide, Jr. contravenes Section 3 (5), Article XI of the 1987 Constitution, providing that "no impeachment proceedings shall be initiated against the same official more than once within a period of one year." The antecedents are simple. On June 2, 2003, deposed President Joseph E. Estrada filed with the House of Representatives an impeachment complaint against Chief Justice Davide and seven (7) other Justices of this Court, alleging inter alia that they conspired to deprive him of his mandate as President. On October 22, 2003, the House Committee on Justice dismissed the complaint for insufficiency of substance. Pursuant to the Constitution, the House of Representatives in plenary session has still to approve or disapprove the Committee's action. The next day, on October 23, 2003, Congressmen Gilberto C. Teodoro, Jr. and Felix William B. Fuentebella filed another impeachment complaint, this time against Chief Justice Davide alone, charging him with violations of the Anti-Graft and Corrupt Practices Act and betrayal of public trust with regard to the disposition of the Judicial

Development Fund (JDF). At least one-third (1/3) of all the members of the House signed a Resolution endorsing this second impeachment complaint. Subsequently, the instant petitions were filed with this Court alleging that the filing of the second impeachment complaint against Chief Justice Davide violates Section 3(5), Article XI of the Constitution which provides:
"No impeachment proceedings shall be initiated against the same official more than once within a period of one year."

Both the Senate and the House of Representatives claimed that this Court lacks jurisdiction over the petitions. Senate President Franklin Drilon manifested that the petitions are premature since the Articles of Impeachment have not been transmitted to the Senate. Moreover, the petitions pose political questions which are non-justiciable. On November 5 and 6, 2003, this Court heard the petitions on oral argument: Present were the amici curiae appointed by this Court earlier, namely: Former Senate President Jovito R. Salonga, former Constitutional Commissioner Joaquin G. Bernas, Justice Hugo E. Gutierrez, Jr., former member of this Court, former Minister of Justice and Solicitor General Estelito P. Mendoza, Court of Appeals Justice Regalado E. Maambong, former Constitutional Commissioner, Dean Raul C. Pangalangan, and former Dean Pacifico A. Agabin of the UP College of Law. Crucial to the determination of the constitutionality of the second impeachment complaint against Chief Justice Davide are three (3) fundamental issues indicated and discussed below: I Whether this Court has jurisdiction over the petitions. One cornerstone of judicial supremacy is the two-century old case of Marbury vs. Madison. 1 There, Chief Justice John Marshall effectively carried the task of justifying the judiciary's power of judicial review. Cast in eloquent language, he stressed that it is "the province and duty of the judicial department to say what the law is." In applying the rule to particular cases, the judiciary "must of necessity expound and interpret that rule." If two laws conflict with each other, "the courts must decide on the operation of each." It further stressed that "if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, the court must decide the case conformably to the Constitution disregarding the law. This is of the very essence of judicial duty." In our shore, the 1987 Constitution is explicit in defining the scope of judicial power. Section 1, Article VIII provides:
"Section 1.The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

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

The above provision fortifies the authority of the courts to determine in an appropriate action the validity of the acts of the political departments. Under the new definition of judicial power, the courts are authorized not only "to settle actual controversies involving rights which are legally demandable and enforceable," but also "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." The latter part of the authority represents a broadening of judicial power to enable the courts to review what was before a forbidden territory the discretion of the political departments of the government. 2 It speaks of judicial prerogative not only in terms of power but also of duty. 3 The petitions at bar present a conflict between Sections 16 and 17 of the Rules of Procedure in Impeachment Proceedings, promulgated by the present Congress of the Philippines, and Section 3(5), Article XI of the Constitution. Is this conflict a justiciable issue? Justiciability, is different from jurisdiction. Justiciability refers to the suitability of a dispute for a judicial resolution, while jurisdiction refers to the power of a court to try and decide a case. As earlier mentioned, the basic issue posed by the instant petitions is whether the second impeachment complaint against Chief Justice Hilario G. Davide violates the Constitutional provision that "no impeachment proceedings shall be initiated against the same official more than once within the period of one year." Obviously, this is a justiciable issue. Chief Justice Davide, under the Constitution, should not be subjected to a second impeachment proceedings. Thus, on the face of the petitions, he has a right to be protected by the courts. May this Court assume jurisdiction over this justiciable issue? Justice Isagani A. Cruz aptly wrote that "A judgment of the Congress in an impeachment proceeding is normally not subject to judicial review because of the vesture in the Senate of the "sole power to try and decide all cases of impeachment." . . . But the courts may annul the proceedings if there is a showing of a grave abuse of discretion committed by the Congress or of noncompliance with the procedural requirements of the Constitution, as where the charges are instituted without a verified complaint, or by less than one-third of all the members of the House of Representatives, or where the judgment of conviction is supported by less than a two-thirds vote in the Senate." 4 He further wrote that the power to impeach is essentially a non-legislative prerogative and can be exercised by the Congress only within the limits of the authority conferred upon it by the Constitution. 5

The case of Romulo vs. Yiguez, 6 supports such a view. In this case, this Court initially took cognizance of the petition filed by Alberto G. Romulo, et al., in view of the latter's claim that the Rules of Procedure in Impeachment Proceedings are unconstitutional, implying that the Batasan, in the exercise of its powers, transgressed the Constitution. This, according to the Court is "certainly a justiciable question."

Corollarily, in Santiago vs. Guingona, Jr., 7 this Court assumed jurisdiction over a petition alleging that the Constitution has not been observed in the selection of the Senate Minority Leader. This Court held that "jurisdiction over the subject matter of a case is determined by the allegations of the complaint or petition, regardless of whether the plaintiff or petitioner is entitled to the relief asserted. In light of the allegation of petitioners, it is clear that this Court has jurisdiction over the petition. It is well within the power and jurisdiction of the Court to inquire whether indeed the Senate or its officials committed a violation of the Constitution or gravely abused their discretion in the exercise of their functions and prerogatives." In Montesclaros vs. Commission on Elections, 8 this Court ruled that "absent a clear violation of specific constitutional limitations or of constitutional rights of private parties, the Court cannot exercise its power of judicial review over the internal processes or procedures of Congress." Stated in converso, the Court can exercise its power of judicial review over the internal processes or procedures of Congress when there exists a clear violation of the Constitution. Also, in Arroyo vs. De Venecia, 9 this Court, through Justice Vicente V . Mendoza (now retired), declared that we have no more power to look into the internal proceedings of a House than Members of that House have to look over our shoulders, as long as no violation of constitutional provisions is shown. In fine, while our assumption of jurisdiction over the present petitions may, at first view, be considered by some as an attempt to intrude into the legislature and to intermeddle with its prerogatives, however, the correct view is that when this Court mediates to allocate constitutional boundaries or invalidates the acts of a coordinate body, what it is upholding is not its own supremacy but the supremacy of the Constitution. 10 If the branches are interdependent, each must have a place where there is finality, an end to discussion, a conclusion. If all three branches are faced with the same question, and if they differ, all three cannot prevail one must be given way to. Otherwise there will be unresolved conflict and confusion. This may be intolerable in situations where there has to be action. Owing to the nature of the conflict, the duty necessarily redounds to the judiciary. II Should this Court exercise self-restraint? Confronted with an issue involving constitutional infringement, should this Court shackle its hands under the principle of judicial self-restraint? The polarized opinions of the

amici curiae is that by asserting its power of judicial review, this Court can maintain the supremacy of the Constitution but at the same time invites a disastrous confrontation with the House of Representatives. A question repeated almost to satiety is what if the House holds its ground and refuses to respect the Decision of this Court? It is argued that there will be a Constitutional crisis. Nonetheless, despite such impending scenario, I believe this Court should do its duty mandated by the Constitution, seeing to it that it acts within the bounds of its authority. The 1987 Constitution speaks of judicial prerogative not only in terms of power but also of duty. 11 As the last guardian of the Constitution, the Court's duty is to uphold and defend it at all times and for all persons. It is a duty this Court cannot abdicate. It is a mandatory and inescapable obligation made particularly more exacting and peremptory by the oath of each member of this Court. 12 Judicial reluctance on the face of a clear constitutional transgression may bring about the death of the rule of law in this country. Yes, there is indeed a danger of exposing the Court's inability in giving efficacy to its judgment. But is it not the way in our present system of government? The Legislature enacts the law, the Judiciary interprets it and the Executive implements it. It is not for the Court to withhold its judgment just because it would be a futile exercise of authority. It should do its duty to interpret the law. Alexander Hamilton, in impressing on the perceived weakness of the judiciary, observed in Federalist No. 78 that "the judiciary [unlike the executive and the legislature] has no influence over either the sword or the purse, no direction either of the strength or of the wealth of society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." Nonetheless, under the unusual circumstances associated with the issues raised, this Court should not shirk from its duty. One final note on jurisdiction and self-restraint. There being a clear constitutional infringement, today is an appropriate occasion for judicial activism. To allow this transcendental issue to pass into legal limbo would be a clear case of misguided judicial self-restraint. This Court has assiduously taken every opportunity to maintain the constitutional order, the distribution of public power, and the limitations of that power. Certainly, this is no time for a display of judicial weakness. While the power to initiate all cases of impeachment is regarded as a matter of "exclusive" concern only of the House of Representatives, over which the other departments may not exercise jurisdiction by virtue of the separation of powers established by the fundamental law, it does not follow that the House of Representatives may not overstep its own powers defined and limited by the Constitution. Indeed, it

cannot, under the guise of implementing its Rules, transgress the Constitution, for when it does, its act immediately ceases to be a mere internal concern. Surely, by imposing limitations on specific powers of the House of Representatives, a fortiori, the Constitution has prescribed a diminution of its "exclusive power." I am sure that the honorable Members of the House who took part in the promulgation and adoption of its internal rules on impeachment did not intend to disregard or disobey the clear mandate of the Constitution the law of the people. And I confidently believe that they recognize, as fully as this Court does, that the Constitution is the supreme law of the land, equally binding upon every branch or department of the government and upon every citizen, high or low. It need not be stressed that under our present form of government, the executive, legislative and judicial departments are coequal and co-important. But it does not follow that this Court, whose Constitutional primary duty is to interpret the supreme law of the land, has not the power to declare the House Rules unconstitutional. Of course, this Court will not attempt to require the House of Representatives to adopt a particular action, but it is authorized and empowered to pronounce an action null and void if found to be contrary to the provisions of the Constitution. This Court will not even measure its opinion with the opinion of the House, as expressed in its internal rules. But the question of the wisdom, justice and advisability of its particular act must be tested by the provisions of the Constitution. And if its act is then held illegal by this Court, it is not because it has any control over Congress, particularly the House of Representatives, but because the act is forbidden by the fundamental law of the land and the will of the people, declared in such fundamental law, which is paramount and must be obeyed by every citizen, even by Congress. At this point, I must emphasize that the jurisdiction of this Court is over the alleged unconstitutional Rules of the House, not over the impeachment proceedings. III Whether the filing of the second impeachment is unconstitutional. Section 3 (5), Article XI of the 1987 Constitution provides:
"No impeachment proceeding shall be initiated against the same official more than once within a period of one year."

Petitioners contend that the filing of the second impeachment complaint against Chief Justice Davide contravenes the above provision because it was initiated within one (1) year from the filing of the first impeachment complaint against him and seven (7) Associate Justices. Several of the amici curiae support petitioners' contention. However, the others argue otherwise, saying that the first impeachment complaint cannot be

considered as having been "initiated" because it failed to obtain the endorsement of at least one-third (1/3) of all the Members of the House. This brings us to the vital question, when are impeachment proceedings considered initiated? The House Rules of Procedure in Impeachment Proceedings provide the instances when impeachment proceedings are deemed initiated, thus:
"BAR AGAINST INITIATION OF IMPEACHMENT PROCEEDINGS AGAINST THE SAME OFFICIAL "SEC. 16.Impeachment Proceedings Deemed Initiated. In cases where a Member of the House files a verified complaint of impeachment or a citizen files a verified complaint that is endorsed by a Member of the House through a resolution of endorsement against an impeachable officer, impeachment proceedings against such official are deemed initiated on the day the Committee on Justice finds that the verified complaint and/or resolution against such official, as the case may be, is sufficient in substance or on the date the House votes to overturn or affirm the finding of the said Committee that the verified complaint and/or resolution, as the case may be, is not sufficient in substance. "In cases where a verified complaint or a resolution of impeachment is filed or endorsed, as the case may be, by at least one-third (1/3) of the Member of the House, impeachment proceedings are deemed initiated at the time of the filing of such verified complaint or resolution of impeachment with the Secretary General.

"SEC. 17.Bar against Initiation of Impeachment Proceedings. Within a period of one (1) year from the date impeachment proceedings are deemed initiated as provided in Section 16 hereof, no impeachment proceedings, as such, can be initiated against the same official."

Under the above Rules, when the verified impeachment complaint is filed by a Member of the House or by a citizen (through a resolution of endorsement by a Member of the House), impeachment proceedings are deemed initiated either (a) on the day the Committee on Justice finds that the verified complaint and/or resolution is sufficient in substance; or (b) on the date the House, through a vote of one-third (1/3), 13 overturns or affirms the finding of the Committee on Justice that the verified complaint and/or resolution is not sufficient in substance. However, when the verified impeachment complaint or resolution is filed or endorsed by at least one-third (1/3) of all the Members of the House, impeachment proceedings are deemed initiated at the time of the filing of the verified complaint or resolution with the Secretary General.

The House Rules deviate from the clear language of the Constitution and the intent of its Framers. The Rules infuse upon the term "initiate" a meaning more than what it actually connotes. The ascertainment of the meaning of the provision of the Constitution begins with the language of the document itself . 14 The words of the Constitution should as much as possible be understood in the sense they have in common use and given their ordinary meaning. 15 In other words, the plain, clear and unambiguous language of the Constitution should be understood in the sense it has in common use. 16 The reason for this is because the Constitution is not primarily a lawyer's document but essentially that of the people, in whose consciousness it should ever be present as an important condition for the rule of law to prevail. 17 Black's Law Dictionary defines "initiate" as "commence," "start," "originate" or "introduce," 18 while Webster's Dictionary 19 defines it as "to do the first act;" "to perform the first rite;" "beginning;" or "commence." It came from the Latin word "initium," meaning "a beginning." Using these definitions, I am convinced that the filing of the verified complaint and its referral to the Committee on Justice constitute the initial step. It is the first act that starts the impeachment proceeding. Fr. Joaquin G. Bernas, S.J., an amicus curiae, explains convincingly that the term "proceeding," which is the object of the term "initiated" in Section 3 (5), Article XI, is a progressive noun that has a beginning, a middle, and an end, thus:
"It [proceeding] consists of several steps. "First, there is the filing of a verified complaint either by a Member of the House or by a private citizen endorsed by a Member of the House. "Second, there is the processing of this complaint by the proper Committee. In this step, the Committee either rejects the complaint or upholds it. "Third, whether the resolution of the Committee rejects or upholds the complaint, the resolution must be forwarded to the House for further processing. "Fourth, there is the processing of the same complaint by the House of Representatives. The House either affirms a favorable resolution of the Committee or overrides a contrary resolution by a vote of one third of all the members. "Now we ask, at what stage is the 'impeachment proceeding' initiated? "Not when the complaint is transmitted to the Senate for trial, because that is the end of the House proceeding and the beginning of another proceeding, namely the trial. "Not when the House deliberates on the resolution passed on to it by the Committee, because something prior to that has already been done. The action

of the House is already a further step in the proceeding, not the initiation or beginning. "Rather, the proceeding is initiated or begins, when a verified complaint is filed and referred to the Committee on Justice for action. This is the initiating step which triggers the series of steps that follow."

The Records of the 1986 Constitutional Commission support the foregoing theory. The term "initiate" pertains to the initial act of filing the verified complaint and not to the finding of the Committee on Justice that the complaint and/or resolution is sufficient in substance or to the obtention of the one-third (1/3) vote of all the Members of the House as provided by the House Rules. Justice Maambong, then a member of the 1986 Constitutional Commission, explained that "initiation starts with the filing of the complaint." As early as the deliberation stage in the Constitutional Commission, the meaning of the term "initiate" was discussed. Then Commissioner Maambong sought the deletion of the phrase "to initiate impeachment proceedings" in Section 3 (3) of Article XI 20 to avoid any misconception that the obtention of one-third (1/3) of all the Members of the House is necessary to "initiate" impeachment proceedings. Apparently, Commissioner Maambong was very careful not to give the impression that "initiation" is equivalent to "impeachment" proper. He stressed that it was the latter which requires the approval of one-third (1/3) of all the Members of the House. According to him, as the phraseology of Section 3 (3) runs, it seems that the initiation starts only on the floor. This prompted him to utter: ". . . I will just make of record my thinking that we do not really initiate the filing of the Articles of Impeachment on the floor. The procedure, as I have pointed out earlier, was that the initiation starts with the filing of the complaint. And what is actually done on the floor is that the committee resolution containing the Articles of Impeachment is the one approved by the body." That Commissioner Maambong gained the concurrence of the Framers of the 1987 Constitution with regard to the rationale of his proposed amendment is shown by the fact that nobody objected to his proposal and it is his amended version which now forms part of the Constitution. We quote the pertinent portions of the deliberation, thus:
"MR. NATIVIDAD. May we have the amendment stated again, so we can understand it. Will the proponent please state the amendment before we vote? MR. REGALADO. The amendment is on Section 3 (3) which shall read as follows: 'A VOTE OF AT LEAST ONE-THIRD OF ALL THE MEMBERS OF THE HOUSE SHALL BE NECESSARY TO INITIATE IMPEACHMENT PROCEEDINGS, EITHER TO AFFIRM A RESOLUTION OF IMPEACHMENT BY THE COMMITTEE OR TO

OVERRIDE ITS CONTRARY RESOLUTION. THE VOTES OF EACH MEMBER SHALL BE RECORDED.' MR. NATIVIDAD. How many votes are needed to initiate? MR. BENGZON. One-third. MR. NATIVIDAD. To initiate is different from to impeach; to impeach is different from to convict. To impeach means to file the case before the Senate. MR. REGALADO. When we speak of 'initiative,' we refer here to the Articles of Impeachment. MR. NATIVIDAD. So, that is the impeachment itself, because when we impeach, we are charging him with the Articles of Impeachment. That is my understanding. xxx xxx xxx MR. BENGZON. Mr. Presiding Officer, may we request that Commissioner Maambong be recognized. THE PRESIDING OFFICER (Mr. Treas). Commissioner Maambong is recognized. MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the approval of the amendment submitted by Commissioner Regalado, but I will just make of record my thinking that we do not really initiate the filing of the Articles of Impeachment on the floor. The procedure, as I have pointed out earlier, was that the initiation starts with the filing of the complaint. And what is actually done on the floor is that the committee resolution containing the Articles of Impeachment is the one approved by the body. As the phraseology now runs, which may be corrected by the Committee on Style, it appears that the initiation starts on the floor. If we only have time, I could cite examples in the case of the impeachment proceedings of president Richard Nixon wherein the Committee on the Judiciary submitted the recommendation, the resolution, and the Articles of Impeachment to the body, and it was the body who approved the resolution. It is not the body which initiates it. It only approves or disapproves the resolution. So, on that score, probably the Committee on Style could help rearranging these words because we have to be very technical about this. I have been bringing with me The Rules of the House of Representatives of the U.S. Congress. The Senate Rules are with me. The proceedings on the case of Richard Nixon are with me. I have

submitted my proposal, but the Committee has already decided. Nevertheless, I just want to indicate this on record. Thank you, Mr. Presiding Officer. xxx xxx xxx MR. MAAMBONG. I would just like to move for a reconsideration of the approval of Section 3 (3). My reconsideration will not at all affect the substance, but it is only in keeping with the exact formulation of the Rules of the House of Representatives of the United States regarding impeachment. I am proposing, Madam President, without doing damage to any of this provision, that on page 2, Section 3 (3), from lines 17 to 18, we delete the words which read: 'to initiate impeachment proceedings' and the comma (,) and insert on line 19 after the word 'resolution' the phrase WITH THE ARTICLES, and then capitalize the letter 'i' in 'impeachment' and replace the word 'by' with OF, so that the whole section will now read: 'A vote of at least one-third of all the Members of the House shall be necessary either to affirm a resolution WITH THE ARTICLES of Impeachment OF the Committee or to override its contrary resolution. The vote of each member shall be recorded.' I already mentioned earlier yesterday that the initiation, as far as the House of Representatives of the United States is concerned, really starts from the filing of the verified complaint and every resolution to impeach always carries with it the Articles of Impeachment. As a matter of fact, the words, 'Articles of Impeachment' are mentioned on line 25 in the case of the direct filing of a verified complaint of one-third of all the members of the House. I will mention again, Madame President, that my amendment will not vary the substance in any way. It is only in keeping with the uniform procedure of the House of Representatives of the United States Congress.

Thank you, Madam President. xxx xxx xxx THE PRESIDENT. Let us first submit to the body the motion of Commissioner Maambong to reconsider the approval of Section 3 (3). Is there any objection? (silence) The chair hears none; the motion is approved. The proposed amendment which has been submitted by Commissioner Maambong was clarified and has been accepted by the Committee on Accountability of Public Officers.

MR. MAAMBONG. Madam President, May I read again the whole section? THE PRESIDENT. Please proceed. MR. MAAMBONG. As amended, the whole Section 3 (3) will read: 'A vote of at least one-third of all the Members of the House shall be necessary either to affirm a resolution WITH THE ARTICLES OF Impeachment OF the Committee or to override its contrary resolution. The vote of each member shall be recorded.' THE PRESIDENT. Is there any objection to this proposed amendment? (Silence) The Chair hear none, the amendment is approved." 21 (Emphasis supplied)

The clear intent of the Framers of our Constitution should be given weight. The primary task in constitutional construction is to ascertain and thereafter assure the realization of the purpose of the Framers and of the people in the adoption of the Constitution. It may be safely assumed that the people, in ratifying the Constitution, were guided mainly by the explanation offered by the Framers. 22 In Gold Creek Mining Corp. vs. Rodriguez, 23 the Court, speaking through Mr. Justice (later, Chief Justice) Jose Abad Santos ruled:
"The fundamental principle of constitutional construction is to give effect to the intent of the framers of the organic law and of the people adopting it. The intention to which force is to be given is that which is embodied and expressed in the constitutional provisions themselves."

The Court thus construes the applicable constitutional provisions, not in accordance with how the executive or the legislative department may want them construed, but in accordance with what they say and provide. It has also been said that a provision of the Constitution should be construed in light of the objectives it sought to achieve. Section 3 (5), Article XI, also referred as the "antiharassment clause," was enshrined in the Constitution for the dual objectives of allowing the legislative body to concentrate on its function which is lawmaking and protecting public officials from harassment, thus:
"MR. VILLACORTA. Madam President, I would just like to ask the Committee three questions. "On Section 3, page 2, lines 12 to 14, the last paragraph reads as follows: 'No impeachment proceedings shall be initiated against the same official more than once within a period of one year.' Does this mean that even if an evidence is discovered to support another charge or ground for impeachment, a second or subsequent proceeding cannot be initiated against the same official within a period of one year? In other words, one year has to elapse before a second or

subsequent charge or proceeding can be initiated. The intention may be to protect the public official from undue harassment. On the other hand, is this not undue limitation on the accountability of public officers? Anyway, when a person accepts a public trust, does he not consider taking the risk of accounting for his acts or misfeasance in office? "MR. ROMULO. Yes, the intention here really is to limit. This is not only to protect public officials who, in this case, are of the highest category from harassment but also to allow the legislative body to do its work which is lawmaking. Impeachment proceedings take a lot of time. And if we allow multiple impeachment charges on the same individual to take place, the legislature will do nothing else but that."

For one, if we construe the term "initiate" as referring to the obtention of one-third (1/3) votes of all the Members of the House or to the date when the Committee on Justice rules that the complaint is sufficient in substance, are we not losing sight of the fact that much time has already been wasted by the House? The getting hold of the one-third (1/3) vote is almost the last step necessary for the accused officer to be considered successfully impeached. The process is almost complete insofar as the House is concerned. The same is true with respect to the proceedings in the Committee on Justice. The hearing, voting and reporting of its resolution to the House definitely take away much of the Members' precious time. Now, if impeachment complaints are only deemed "initiated" during those phases, then the object of allowing the legislature to concentrate on its functions cannot really be achieved. Obviously, impeachment is a long process. To be sure, instead of acting as a legislative body, the House will be spending more time as a prosecutorial body. For another, to let the accused official go through the above phases is to subject him to additional harassment. As the process progresses, the greater is the harassment caused to the official. One glaring illustration is the present case. It may be recalled that the first impeachment complaint against Chief Justice Davide was referred to the Committee on Justice. On October 22, 2003, the Committee dismissed the complaint for being insufficient in form and substance. The very next day and while the Committee was yet to make a report to the House, Congressmen Teodoro and Fuentebella immediately filed the second impeachment complaint against the Chief Justice. In short, while the first impeachment complaint was not yet fully disposed of, the Chief Justice was being charged again in another complaint. This is the very situation proscribed by the Constitution. Verily, it inflicts undue strain and harassment upon officials who are saddled with other pressing responsibilities. Another constitutional objection to the second impeachment complaint raised by petitioners is the fact that only Congressmen Teodoro and Fuentebella signed it. According to them, this violates Section 3 (4), Article XI of the Constitution which provides:

"(4)In case the verified complaint or resolution of impeachment is filed by at least one-third (1/3) of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed."

Following the above provision, what should have been filed by at least one-third (1/3) of all the Members of the House is a verified complaint or resolution of impeachment. Even Section 15 of the House Rules reechoes the above Constitutional mandate, thus:
"SEC. 15.Endorsement of the Complaint/Resolution to the Senate. A verified complaint or a resolution of impeachment signed by at least one-third (1/3) of all the Members of the House shall constitute the Articles of Impeachment and shall be filed with the Secretary General. The complaint/resolution must, at the time of filing, be verified and sworn to before the Secretary General by each of the Members who constitute at least one-third (1/3) of all the Members of the House. The contents of the verification shall be as follows: "We, after being sworn in accordance with law, depose and state: That we are the complainants/signatories in the above-entitled complaint/resolution of impeachment; that we have caused the said complaint/resolution to be prepared and have read the contents thereof; and that the allegations therein are true of our own knowledge and belief on the basis of our reading and appreciation of documents and other records pertinent thereto."

Clearly, the requirement is that the complaint or resolution must at the time of filing be verified and sworn to before the Secretary General of the House by each of the members who constitute at least one-third (1/3) of all the Members of the House. A reading of the second impeachment complaint shows that of the eighty-one (81) Congressmen, only two, Teodoro and Fuentebella, actually signed and verified it. What the rest verified is the Resolution of Endorsement. The verification signed by the majority of the Congressmen states: "We are the proponents/sponsors of the Resolution of Endorsement of the abovementioned Complaint of Representatives Gilberto C. Teodoro, Jr. and Felix William B. Fuentebella . . ." 24 However, this defect is not for this Court to correct considering that it is an incident of the impeachment process solely cognizable by the legislature. IV Whether petitioners have locus standi to bring the present suits. It is contended that petitioners have no legal standing to institute the instant petitions because they do not have personal and substantial interest in these cases. In fact, they have not sustained or will suffer direct injury as a result of the act of the House of Representatives being challenged. It is further argued that only Chief Justice Davide has such interest in these cases. But he has not challenged the second impeachment complaint against him.

It would be an unseemly act for the Chief Justice to file a petition with this Court where he is primus inter pares. "Delicadeza" and the Rules require him not only to inhibit himself from participating in the deliberations but also from filing his own petition. Fortunately, there are persons equally interested in the cause for which he is fighting. I believe that the locus standi doctrine is not impaired in these petitions. The petitioners have the legal standing to file the present petitions. No less than two members of the House of Representatives, namely, Deputy Speaker Raul M. Gonzales and Congressman Salacnib F. Baterina are among the petitioners in these cases. They alleged in their petition that the Constitution reserves to their Chamber, whether acting as a whole or through its members or Committees, the authority to initiate impeachment proceedings. As members of the House, "they have the legal interest in ensuring that only impeachment proceedings that are in accord with the Constitution are initiated. Any illegal act of the House or its members or Committees pertaining to an impeachment will reflect adversely on them because such act will be deemed an act of the House. Thus they have the right to question the constitutionality of the second impeachment complaint against the Chief Justice, an event of transcendental national concern." 25 They further alleged that it would be futile for them to seek relief in their Chamber prior to the filing of their petition because the Articles of Impeachment, based on the constitutionally infirm second impeachment complaint, will be transmitted to the Senate at their next session. Necessarily, the House will disburse public funds amounting to millions of pesos for the prosecution, as in the case of the impeachment of former President Joseph Ejercito Estrada. Consequently, they stressed they have the standing to file a petition "to stop the illegal disbursement of public funds for an illegal act." 26

The rest of the petitioners, most of whom are members of the Integrated Bar of the Philippines, similarly contend that as citizens and taxpayers they have the legal standing to bring these suits. They assert that it is their right and duty to see to it that the acts of their public officials should be in accordance with what the Constitution says and that public funds are not spent for an unconstitutional act. Indeed, the present suits involve matters of first impression and of immense importance to the public considering that, as previously stated, this is the first time a Chief Justice of the Supreme Court is being subjected to an impeachment proceeding which, according to petitioners, is prohibited by the Constitution. Obviously, if such proceeding is not prevented and nullified, public funds amounting to millions of pesos will be disbursed for an illegal act. Undoubtedly, this is a grave national concern involving paramount public interest. The petitions are properly instituted to avert such a situation.

In Chavez vs. Public Estates Authority, 27 citing Chavez vs. PCGG, 28 we upheld the right of a citizen to bring a taxpayer's suit where, as here, the issues raised are of transcendental importance to the public, thus:
"Besides, petitioner emphasizes, the matter or recovering the ill-gotten wealth of the Marcoses is an issue of 'transcendental importance to the public.' He asserts that ordinary taxpayers have a right to initiate and prosecute actions questioning the validity of acts or orders of government agencies or instrumentalities, if the issues raised are of 'paramount public interest,' and if they 'immediately affect the social, economic and moral well being of the people. Moreover, the mere fact that he is a citizen satisfies the requirement of personal interest, when the proceeding involves the assertion of a public right, such as in this case. He invokes several decisions of this Court which have set aside the procedural matter of locus standi, when the subject of the case involved public interest. xxx xxx xxx Indeed, the arguments cited by petitioners constitute the controlling decisional rule as regards his legal standing to institute the instant petition. . . . In Taada vs. Tuvera, 29 the Court asserted that when the issue concerns a public right and the object of mandamus is to obtain the enforcement of a public duty, the people are regarded as the real parties in interest; and because it is sufficient that petitioner is a citizen and as such is interested in the execution of the laws, he need not show that he has any legal or special interest in the result of the action. In the aforesaid case, the petitioners sought to enforce their right to be informed on matters of public concern, a right then recognized in Section 6, Article IV of the 1973 Constitution, in connection with the rule that laws in order to be valid and enforceable must be published in the Official Gazette or otherwise effectively promulgated. In ruling for the petitioners' legal standing, the Court declared that the right they sought to be enforced 'is a public right recognized by no less than the fundamental law of the land.' Legaspi vs. Civil Service Commission, 30 while reiterating Taada, further declared that 'when a mandamus proceeding involves the assertion of a public right, the requirement of personal interest is satisfied by the mere fact that petitioner is a citizen and, therefore, part of the general 'public' which possesses the right. Further, in Albano vs. Reyes, 31 we said that while expenditure of public funds may not have been involved under the questioned contract for the development, management and operation of the Manila International Container Terminal, 'public interest [was] definitely involved considering the important role [of the subject contract] . . . in the economic development of the country and the

magnitude of the financial consideration involved.' We concluded that, as a consequence, the disclosure provision in the Constitution would constitute sufficient authority for upholding the petitioner's standing."

This Court has adopted a liberal stance on the locus standi of a petitioner where he is able to craft an issue of transcendental significance to the people. In Tatad vs. Secretary of the Department of Energy, 32 Justice Reynato S. Puno aptly emphasized:
". . . Respondents further aver that petitioners have no locus standi as they did not sustain nor will they sustain direct injury as a result of the implementation of R.A. No. 8180. xxx xxx xxx The effort of respondents to question the locus standi of petitioners must also fall on barren ground. In language too lucid to be misunderstood, this Court has brightlined its liberal stance on a petitioner's locus standi where the petitioner is able to craft an issue of transcendental significance to the people. In Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs. Tan (163 SCRA 371 [1988]), we stressed: 'xxx xxx xxx Objections to taxpayers' suit for lack of sufficient personality, standing or interest are, however, in the main procedural matters. Considering the importance to the public of the cases at bar, and in keeping with the Court's duty, under the 1987 Constitution, to determine whether or not the other branches of government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them, the Court has brushed aside technicalities of procedure and has taken cognizance of these petitions.'"

WHEREFORE, I vote to GRANT the petitions and to declare Sections 16 and 17 of the House Rules of Procedure in Impeachment Proceedings UNCONSTITUTIONAL. CORONA, J.: On July 4, 1946, the flag of the United States fluttered for the last time in our skies. That day ushered in a new period for the Philippine judiciary because, for the first time since 1521, judicial decisions in our country became entirely our own, free finally of the heavy influence of a colonial master and relieved of the "preferable" use of precedents set by US courts. Nevertheless, the vestiges of 50 years of American rule were not about to disappear so soon, nor so easily. The 1935 Constitution then in force carried many provisions lifted from the US Constitution. Today we face the prospects of a

constitutional crisis at whose vortex lies the interpretation of certain provisions of that American-influenced Constitution. A defining moment in history is upon us. The Court has to speak in response to that moment and in defense of the Constitution. I humbly contribute this separate opinion as a chronicle of my thoughts during our deliberations on the petitions before us. Let it be a living testament, in the immortal words of the great Jesuit historian Horacio de la Costa, that in this particular quest for truth and justice, we in this Court "not only played in tune but managed here and there a brief but brilliant phrase." The Extraordinary Remedy of Impeachment is Intended to be Only a Final Option Incorporated in the 1987 Constitution are devices meant to prevent abuse by the three branches of government. One is the House of Representatives' exclusive power of impeachment for the removal of impeachable officers 1 from their positions for violating the mandate that public office is a public trust. Impeachment under the Philippine Constitution, as a remedy for serious political offenses against the people, runs parallel to that of the U.S. Constitution whose framers regarded it as a political weapon against executive tyranny. It was meant "to fend against the incapacity, negligence or perfidy of the Chief Magistrate." 2 Even if an impeachable official enjoys immunity, he can still be removed in extreme cases to protect the public. 3 Because of its peculiar structure and purpose, impeachment proceedings are neither civil nor criminal:
James Wilson described impeachment as "confined to political characters, to political crimes and misdemeanors, and to political punishment." According to Justice Joseph Story, in his Commentaries on the Constitution, in 1833, impeachment applied to offenses of a political character: Not but (sic) that crimes of a strictly legal character fall within the scope of the power; but that it has a more enlarged operation, and reaches what are aptly termed political offenses, growing out of personal misconduct or gross neglect, or usurpation, or habitual disregard of the public interests, various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law. They must be examined upon very broad and comprehensive principles of public policy and duty. They must be judged by the habits and rules and principles of diplomacy, or departmental operations and arrangements, of parliamentary practice, of executive customs and negotiations, of foreign as well as domestic political movements; and in short, by a great variety of circumstances, as well as those which aggravate as those which extenuate or justify the offensive acts which do

not properly belong to the judicial character in the ordinary administration of justice, and are far removed from the reach of municipal jurisprudence.
cEITCA

The design of impeachment is to remove the impeachable officer from office, not to punish him. An impeachable act need not be criminal. That explains why the Constitution states that the officer removed shall nevertheless be subject to prosecution in an ordinary criminal case. 4

Impeachment has been described as sui generis and an "exceptional method of removing exceptional public officials (that must be) exercised by the Congress with exceptional caution." 5 Thus, it is directed only at an exclusive list of officials, providing for complex procedures, exclusive grounds and very stringent limitations. The implied constitutional caveat on impeachment is that Congress should use that awesome power only for protecting the welfare of the state and the people, and not merely the personal interests of a few.

There exists no doubt in my mind that the framers of the Constitution intended impeachment to be an instrument of last resort, a draconian measure to be exercised only when there are no other alternatives available. It was never meant to be a bargaining chip, much less a weapon for political leverage. Unsubstantiated allegations, mere suspicions of wrongdoing and other less than serious grounds, needless to state, preclude its invocation or exercise. According to constitutionalist Joaquin Bernas, S.J.:
for 'graft and corruption' and 'betrayal of public trust' to be grounds for impeachment, their concrete manner of commission must be of the same severity as 'treason' and 'bribery,' offenses that strike at the very heart of the life of the nation. 6

A great deal of prudence should therefore be exercised not only to initiate but also to proceed with impeachment. Otherwise, the time intended for legislative work (the reason why the Senators and the Congressmen have been elected to the legislature in the first place) is shifted to the impeachment effort. Furthermore, since the impeachable officer accused is among the highest officials of the land, it is not only his reputation which is at stake but also the efficient performance of his governmental functions. There is no denying that the economy suffered a serious blow during the impeachment trial of former Joseph Estrada in 2001. Impeachment must therefore be gravely reflected upon on account of its potentially destructive impact and repercussions on the life of the nation. Jurisdiction and Justiciability vs. The Political Question Doctrine

The Court is vested power by the Constitution to rule on the constitutionality or legality of an act, even of a co-equal branch. Article VIII, Section 4(2) of the Constitution states:
(2)All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court en banc, and all other cases which under the Rules of Court are required to be heard en banc, including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations, shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.

The Constitution is the basic and paramount law to which all laws, rules and regulations must conform and to which all persons, including the highest officials of the land, must defer. Any act conflicting with the Constitution must be stricken down as all must bow to the mandate of this law. Expediency is not allowed to sap its strength nor greed for power permitted to debase its rectitude. Right or wrong, the Constitution must be upheld as long as it has not been changed by the sovereign people lest its disregard result in the usurpation of the majesty of law by the pretenders to illegitimate power. 7 While it is the judiciary which sees to it that the constitutional distribution of powers among the three departments of the government is respected and observed, by no means does this mean that it is superior to the other departments. The correct view is that, when the Court mediates to allocate constitutional boundaries or invalidates the acts of a coordinate body, what it is upholding is not its own supremacy but the supremacy of the Constitution. 8 The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public act, whether of the highest official or the lowest functionary, is a cornerstone of our democratic system. This is the rule of law. The three departments of government, each discharging the specific functions with which it has been entrusted, have no choice but to comply completely with it. Whatever limitations are imposed must be observed to the letter. Congress, whether the enactment of statutes or its internal rules of procedure, is not exempt from the restrictions on its authority. And the Court should be ready not to overpower or subdue but simply to remind the legislative or even the executive branch about what it can or cannot do under the Constitution. The power of judicial review is a logical corollary of the supremacy of the Constitution. It overrides any government measure that fails to live up to its mandate. Thereby there is a recognition of its being the supreme law. 9 Article VIII, Section 1 of the Constitution provides:

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

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

Both the 1935 and the 1973 Constitutions did not have a similar provision with this unique character and magnitude of application. This expanded provision was introduced by Chief Justice Roberto C. Concepcion in the 1986 Constitutional Commission to preclude the Court from using the political question doctrine as a means to avoid having to make decisions simply because they may be too controversial, displeasing to the President or Congress, or inordinately unpopular. The framers of the 1987 Constitution believed that the unrestricted use of the political question doctrine allowed the Court during the Marcos years to conveniently steer clear of issues involving conflicts of governmental power or even cases where it could have been forced to examine and strike down the exercise of authoritarian control. Accordingly, with the needed amendment, the Court is now enjoined by its mandate from refusing to invalidate an unauthorized assumption of power by invoking the political question doctrine. Judicial inquiry today covers matters which the Court, under previous Constitutions, would have normally left to the political departments to decide. In the case of Bondoc vs. Pineda, 10 the Court stressed:
But where the political departments exceed the parameters of their authority, then the Judiciary cannot simply bury its head ostrich-like in the sands of political question doctrine.

In fact, even political questions do not prohibit the exercise of the power of judicial review for we have already ruled that our responsibility to interpret the Constitution takes primacy over the political question doctrine. In this connection, we held in Coseteng vs. Mitra 11 that:
Even if the question were political in nature, it would still come within our powers of review under the expanded jurisdiction conferred upon us by Article VIII, Section 1, of the Constitution, which includes the authority to determine whether grave abuse of discretion amounting to excess or lack of jurisdiction has been committed by any branch or instrumentality of the government.

The Court is never concerned with policy matters which, without doubt, are within the exclusive province of the political arms of government. The Court settles no policy issues and declares only what the law is and not what the law ought to be. Under our system of

government, policy belongs to the domain of the political branches of government and of the people themselves as the repository of all state power. 12 In the landmark case of Marbury vs. Madison, 13 penned by Chief Justice John Marshall, the U.S. Supreme Court explained the concept of judicial power and justiciable issues:
So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the Court must either decide the case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

And on the importance of our duty to interpret the Constitution, Marbury was emphatic:
Those, then, who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that the court must close their eyes on the constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits and declaring that those limits may be passed at pleasure. 14

The Court has the obligation to decide on the issues before us to preserve the hierarchy of laws and to maintain the supremacy of the rule of the Constitution over the rule of men.
DHcSIT

In Calderon vs. Carale, 15 we held:

If the Legislature may declare what a law means, or what a specific portion of the Constitution means, especially after the courts have in actual case ascertained its meaning by interpretation and applied it in a decision, this would surely cause confusion and instability in judicial processes and court decisions. Under such a system, a final court determination of a case based on a judicial interpretation of the law or of the Constitution may be undermined or even annulled by a subsequent and different interpretation of the law or of the Constitution by the Legislative department. That would be neither wise nor desirable, besides being clearly violative of the fundamental principles of our constitutional system of government, particularly those governing the separation of powers.

Under the new definition of judicial power embodied in Article VIII, Section 1, courts of justice have not only the authority but also the duty to "settle actual controversies involving rights which are legally demandable and enforceable" and "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government."

The Court can therefore, in certain situations provided in the Constitution itself, inquire into the acts of Congress and the President, though with great hesitation and prudence owing to mutual respect and comity. Among these situations, in so far as the pending petitions are concerned, are (1) issues involving constitutionality and (2) grave abuse of discretion amounting to lack of or excess of jurisdiction on the part of any branch of the government. These are the strongest reasons for the Court to exercise its jurisdiction over the pending cases before us. Judicial Restraint or Dereliction of Duty? A side issue that has arisen with respect to this duty to resolve constitutional issues is the propriety of assuming jurisdiction because "one of our own is involved." Some quarters have opined that this Court ought to exercise judicial restraint for a host of reasons, delicadeza included. According to them, since the Court's own Chief Justice is involved, the Associate Justices should inhibit themselves to avoid any questions regarding their impartiality and neutrality. I disagree. The Court should not evade its duty to decide the pending petitions because of its sworn responsibility as the guardian of the Constitution. To refuse cognizance of the present petitions merely because they indirectly concern the Chief Justice of this Court is to skirt the duty of dispensing fair and impartial justice. Furthermore, refusing to assume jurisdiction under these circumstances will run afoul of the great traditions of our democratic way of life and the very reason why this Court exists in the first place. This is actually not the first time the Court will decide an issue involving itself. In the 1993 case of Philippine Judges Association vs. Prado, 16 we decided the constitutionality of Section 35 of RA 7354 which withdrew the franking privilege of the Supreme Court, the Court of Appeals, the Regional Trial Courts, the Metropolitan Trial Courts, the Municipal Trial Courts and the Land Registration Commission and its Registers of Deeds, along with certain other government offices. The Court ruled on the issue and found that the withdrawal was unconstitutional because it violated the equal protection clause. The Court said:

The Supreme Court is itself affected by these measures and is thus an interested party that should ordinarily not also be a judge at the same time. Under our system of government, however, it cannot inhibit itself and must rule upon the challenge, because no other office has the authority to do so. We shall therefore act upon this matter not with officiousness but in the discharge of an unavoidable duty and, as always, with detachment and fairness. xxx xxx xxx We arrive at these conclusions with a full awareness of the criticism it is certain to provoke. While ruling against the discrimination in this case, we may ourselves be accused of similar discrimination through the exercise of our ultimate power in our own favor. This is inevitable. Criticism of judicial conduct, however undeserved, is a fact of life in the political system that we are prepared to accept. As judges, we cannot even debate with our detractors. We can only decide the cases before us as the law imposes on us the duty to be fair and our own conscience gives us the light to be right (emphasis ours).

This Court has also ruled on the constitutionality of taxing the income of the Supreme Court Justices. 17 The Court recognized that it was faced by a "vexing challenge" since the issue affected all the members of the Court, including those who were sitting there at that time. Yet it still decided the issue, reasoning that "adjudication may not be declined because (a) [we] are not legally disqualified; (b) jurisdiction may not be renounced." Also, this Court had the occasion to rule on the constitutionality of the presidential veto involving certain provisions of the General Appropriations Act of 1992 on the payment of adjusted pension of retired Supreme Court justices. 18 Thus, vexing or not, as long as the issues involved are constitutional, the Court must resolve them for it to remain faithful to its role as the staunch champion and vanguard of the Constitution. At the center stage in the present petitions is the constitutionality of Rule V, Sections 16 and 17 of the Rules on Impeachment Proceedings of the House of Representatives and, by implication, the second impeachment complaint against Chief Justice Hilario G. Davide Jr. We have the legal and moral obligation to resolve these constitutional issues, regardless of who is involved. As pointed out by the eminent constitutionalist, Joaquin Bernas, S.J., jurisdiction is not mere power; it is a duty which, though vexatious, may not be renounced.
DEICHc

Constitutionality of Rule V Sections 16 and 17, and the Second Impeachment Complaint/the Time-Bar Issue Rule V, Section 16 of the Rules on Impeachment Proceedings of the House of Representatives reads:

In cases where a Member of the House files a verified complaint of impeachment or a citizen files a verified complaint that is endorsed against an impeachable officer, impeachment proceedings against such official are deemed initiated on the day the Committee on Justice finds that the verified complaint and/or resolution against such official, as the case may be, is sufficient in substance or on the date the House votes to overturn or affirm the finding of the said Committee that the verified complaint and/or resolution, as the case may be, is not sufficient in substance. In cases where a verified complaint or a resolution of impeachment is filed or endorsed, as the case may be, by at least one-third (1/3) of the Members of the House, impeachment proceedings are deemed initiated at the time of the filing of such verified complaint or resolution of impeachment with the Secretary General.

Section 17 of the same impeachment rules provides:

Within a period of one (1) year from the date impeachment proceedings are deemed initiated as provided in Section 16 hereof, no impeachment proceedings, as such, can be initiated against the same official.

On the other hand, Article XI, Section 3(5) of the Constitution states:
No impeachment proceedings should be initiated against the same official more than once within a period of one year.

Simply stated, according to the rules of the House of Representatives, impeachment proceedings are deemed initiated if there is a finding by the House Committee on Justice that the verified complaint is sufficient in substance; or once the House itself affirms or overturns the finding of the Committee on Justice; or by the filing or endorsement before the Secretary General of the House of Representatives of a verified complaint or a resolution of impeachment by at least one-third of the Members of the House. The aforesaid rules of impeachment of the House of Representatives proceed from its rule-making power on impeachment granted by the Constitution:
The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section. 19

The foregoing provision was provided for in the Constitution in the light of the exclusive power of the House of Representatives to initiate all cases of impeachment pursuant to Article XI, Section 3(1) of the said Constitution. But this exclusive power pertaining to the House of Representatives is subject to the limitations that no impeachment proceedings shall be initiated against the same official more than once within a period of one year under Section 3(5) of the same Article XI.

In the light of these provisions, were there two impeachment complaints 20 lodged against the Chief Justice within a period of one year? Considering the House of Representatives' own interpretation of Article XI, Section 3(5) of the Constitution and the diametrically opposite stand of petitioners thereon, it becomes imperative for us to interpret these constitutional provisions, even to the extent of declaring the legislative act as invalid if it contravenes the fundamental law. Article XI, Section 3(5) is explicit that no impeachment proceedings shall be initiated against the same official more than once within a period of one year. The question is: when are impeachment proceedings deemed initiated?
TEacSA

In Gold Greek Mining Corporation vs. Rodriguez 21, the Court ruled that the intent of the framers of the organic law and the people adopting it is a basic premise. Intent is the vital part, the heart, the soul and essence of the law and the guiding star in the interpretation thereof. 22 What it says, according to the text of the provision to be construed, compels acceptance and negates the power of the Court to alter it, based on the postulate that the framers and the people mean what they say. 23 The initial proposal in the 1986 Constitutional Commission read:
A vote of at least one-third of all the Members of the House shall be necessary either to initiate impeachment proceedings, or to affirm a resolution of impeachment proceedings, or to affirm a resolution of impeachment by the committee or override its contrary resolution. The vote of each Member shall be recorded.

However, Commissioner Regalado Maambong 24 proposed the amendment which is now the existing provision:
A vote of at least one-third of all the Members of the House shall be necessary either to affirm a resolution of the articles of impeachment of the committee or to override its contrary resolution. The vote of each member shall be recorded.

Notably, Commissioner Maambong's proposal eliminated the clause "[a vote of at least one-third of all the Members of the House shall be necessary either] to initiate impeachment proceedings." His point was that, pursuant to the rules and practice of the House of Representatives of the United States, impeachment is not "initiated" by the vote of the House but by the filing of the complaint. Commissioner Maambong's amendment and explanation were approved by the Constitutional Commission without objection. No clearer authority exists on the meaning and intention of the framers of the Constitution.

The issuance of an interpretative rule, embodied in Rule V, Section 16 of the Rules on Impeachment Proceedings of the House of Representatives, vis--vis a self-executing

provision of the Constitution, has therefore no basis, at least with respect to the term "initiate." A careful reading of Article XI, Section 3(5) of the Constitution shows absolutely no necessity for an interpretative rule. The wording of the constitutional provision is so unequivocal and crystal-clear that it only calls for application and not interpretation. I acknowledge that Article XI, Section 3(8) of the Constitution provides that the Congress shall promulgate its rules on impeachment. This is correct provided such rules do not violate the Constitution. Judicial Review of Congress' Power to Make its Rules Article XI, Section 3(1) of the Constitution provides:
The House of Representatives shall have the exclusive power to initiate all cases of impeachment.

It is argued that because the Constitution uses the word "exclusive," such power of Congress is beyond the scope of judicial inquiry. Impeachment proceedings are supposedly matters particularly and undividedly assigned to a co-equal and coordinate branch of government. It must be recalled, however, that the President of the Republic of the Philippines under Article VII, Section 18 of the Constitution has the sole and exclusive power to declare martial law. Yet such power is still subject to judicial review:
The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.
IEAacS

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual bases of the proclamation of martial law or

the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision hereon within thirty days from its filing.

Furthermore, in Bondoc vs. Pineda, we assumed jurisdiction despite the fact that the electoral tribunal concerned was the "sole" judge of contests relating to elections, returns and qualifications of its members:
Since "a constitutional grant of authority is not usually unrestricted, limitations being provided for as to what may be done and how it is to be accomplished, necessarily then, it becomes the responsibility of the courts to ascertain whether the two coordinate branches have adhered to the mandate of the fundamental law. The question thus posed is judicial rather than political. The duty remains to assure that the supremacy of the Constitution is upheld." That duty is a part of the judicial power vested in the courts by an express grant under Section 1, Article VIII of the 1987 Constitution of the Philippines which defines judicial power as both authority and duty of the courts "to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentalities of the Government. The power and duty of the courts to nullify, in appropriate cases, the actions of the executive and legislative branches of the Government does not mean that the courts are superior to the President and the Legislature. It does mean though that the judiciary may not shirk "the irksome task" of inquiring into the constitutionality and legality of legislative or executive action when a justiciable controversy is brought before the courts by someone who has been aggrieved or prejudiced by such person, as in this case. It is "a plain exercise of the judicial power, that power vested in courts to enable them to administer justice according to the law . . . It is simply a necessary concomitant of the power to hear and dispose of a case or controversy properly before the court, to the determination of which must be brought the test and measure of the law. 25

Thus, in the words of author Bernas, the words "exclusive" or "sole" in the Constitution should not be interpreted as "driving away the Supreme Court," that is, prohibiting it from exercising its power of judicial review when necessary. The House of Representatives may thus have the "exclusive" power to initiate impeachment cases but it has no exclusive power to expand the scope and meaning of the law in contravention of the Constitution. While this Court cannot substitute its judgment for that of the House of Representatives, it may look into the question of whether such exercise has been made with grave abuse of discretion. A showing that plenary power is granted either department of government

may not be an obstacle to judicial inquiry for the improvident exercise or abuse thereof may give rise to a justiciable controversy. 26 The judiciary is deemed by most legal scholars as the weakest of the three departments of government. It is its power of judicial review that restores the equilibrium. In other words, while the executive and the legislative departments may have been wittingly or unwittingly made more powerful than the judiciary, the latter has, however, been given the power to check or rein in the unauthorized exercise of power by the other two. Congress' Impeachment Power and Power of the Purse vis--vis the Powers of the Commission on Audit (COA) and the Judiciary's Fiscal Autonomy One of the issues against the Chief Justice in the second impeachment complaint is the wisdom and legality of the allocation and utilization of the Judiciary Development Fund (JDF). We take judicial notice of the deluge of public discussions on this matter. The second impeachment complaint charges the Chief Justice with alleged unlawful underpayment of the cost of living allowances of members and personnel of the judiciary and the unlawful disbursement of the JDF for certain infrastructure projects and acquisition of motor vehicles.
DCSTAH

The JDF was established by PD 1949 in 1984. As stated in its preliminary clause, it was enacted to maintain the independence of the judiciary, review and upgrade the economic conditions of the members and personnel thereof, preserve and enhance its independence at all times and safeguard the integrity of its members, and authorize it, in the discharge of its functions and duties, to generate its own funds and resources to help augment its budgetary requirements and ensure the uplift of its members and personnel. It is of public record that, while the judiciary is one of the three co-equal branches of government, it has consistently received less than 1% of the total annual appropriation of the entire bureaucracy. As authorized by PD 1949, the judiciary augments its budgetary requirements through the JDF, which is in turn derived from, among others, the marginal increases in legal fees since 1984. Section 1 of PD 1949 imposes the following percentage limits on the use of the JDF:
"That at least eighty percent (80%) of the Fund shall be used for cost of living allowances, and not more than twenty percent (20%) of the said Fund shall be used for office equipment and facilities of the Courts located where the legal fees are collected; Provided, further, That said allowances of the members and

personnel of the Judiciary shall be distributed in proportion of their basic salaries; and, Provided, finally, That bigger allowances may be granted to those receiving a basic salary of less than P1,000.00 a month.

Section 2 thereof grants to the Chief Justice the sole and exclusive power to authorize disbursements and expenditures of the JDF:
SECTION 2.The Chief Justice of the Supreme Court shall administer and allocate the Fund and shall have the sole exclusive power and duty to approve and authorize disbursements and expenditures of the Fund in accordance with the guidelines set in this Decree and its implementing rules and regulations. (Emphasis supplied).

Section 3 of the same law empowers the Commission on Audit (COA) to make a quarterly audit of the JDF:
SECTION 3.The amounts accruing to the Fund shall be deposited by the Chief Justice or his duly authorized representative in an authorized government depository bank or private bank owned or controlled by the Government, and the income or interest earned shall likewise form part of the Fund. The Commission on Audit through the Auditor of the Supreme Court or his duly authorized representative shall quarterly audit the receipts, revenues, uses, disbursements and expenditures of the Fund, and shall submit the appropriate report in writing to the Chairman of the Commission on Audit and to the Chief Justice of the Supreme Court, copy furnished the Presiding Appellate Justice of the Intermediate Appellate Court and all Executive Judges. (Emphasis supplied).

It is clear from PD 1949 that it is the COA, not Congress, that has the power to audit the disbursements of the JDF and determine if the same comply with the 80-20 ratio set by the law. In the course of the House Committee on Justice's investigation on the first impeachment complaint, the COA submitted to the said body a copy of its audit report, together with pertinent supporting documents, that the JDF was used and allocated strictly in accordance with PD 1949.

Because some congressmen disagreed with the COA report clearing the Chief Justice of any illegality or irregularity in the use and disbursement of the JDF, a second impeachment complaint was filed charging him with alleged "misuse of the JDF." At this point, the question foremost in my mind is: what would be the basis of such charges if the COA itself already cleared the Chief Justice?

Aside from its statutory power under PD 1949 to audit the JDF, the COA alone has the constitutional power to audit and investigate all financial accounts of the government, including the JDF.
aTHASC

Article IX (D), Section 2 (1) and (2) of the Constitution empowers and obligates the COA as follows:
Sec. 2.(1) The Commission on Audit shall have the power, authority, and duty to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including government-owned and controlled corporations with original charters, and on a post-audit basis: (a) constitutional bodies, commissions and offices that have been granted fiscal autonomy under this Constitution; (b) autonomous state colleges and universities; (c) other government-owned or controlled corporations and their subsidiaries; and (d) such non-governmental entities receiving subsidy or equity, directly or indirectly, from or through the Government, which are required by law or the granting institution to submit such audit as a condition of subsidy or equity. However, where the internal control system of the audited agencies is inadequate, the Commission may adopt such measures, including temporary or special pre-audit, as are necessary and appropriate to correct the deficiencies. Preserve the vouchers and other supporting papers pertaining thereto. (2)The Commission shall have exclusive authority, subject to the limitations in this Article to define the scope of its audit examination, establish the techniques and methods required therefore, and promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures, or uses of government funds and properties.

Under the foregoing provisions, the COA alone has broad powers to examine and audit all forms of government revenues, examine and audit all forms of government expenditures, settle government accounts, define the scope and techniques for its own auditing procedures, promulgate accounting and auditing rules "including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures," decide administrative cases involving expenditure of public funds, and to conduct post-audit authority over "constitutional bodies, commissions and offices that have been granted fiscal autonomy under this Constitution." The provision on post-audit recognizes that there are certain government institutions whose operations might be hampered by pre-audit requirements. Admittedly, Congress is vested with the tremendous power of the purse, traditionally recognized in the constitutional provision that "no money shall be paid out of the Treasury except in pursuance of an appropriation made by law." 27 It comprehends both

the power to generate money by taxation (the power to tax) and the power to spend it (the power to appropriate). The power to appropriate carries with it the power to specify the amount that may be spent and the purpose for which it may be spent. 28 Congress' power of the purse, however, can neither traverse on nor diminish the constitutional power of the COA to audit government revenues and expenditures. Notably, even the expenditures of Congress itself are subject to review by the COA under Article VI, Section 20 of the Constitution:
Sec. 20.The records and books of accounts of the Congress shall be preserved and be open to the public in accordance with law, and such books shall be audited by the Commission on Audit which shall publish annually an itemized list of amounts paid to and expense incurred for each member. (Emphasis supplied).

The COA's exclusive and comprehensive audit power cannot be impaired even by legislation because of the constitutional provision that no law shall be passed exempting any entity of the government or its subsidiary or any investment of public funds from COA jurisdiction. 29 Neither can Congress dictate on the audit procedures to be followed by the COA under Article IX (D), Section 2 (2). In sum, after Congress exercises its power to raise revenues and appropriate funds, the power to determine whether the money has been spent for the purpose for which it is allocated now belongs to the COA. Stated otherwise, it is only through the COA that the people can verify whether their money has been properly spent or not. 30 As it is a basic postulate that no one is above the law, Congress, despite its tremendous power of the purse, should respect and uphold the judiciary's fiscal autonomy and the COA's exclusive power to audit it under the Constitution.
DcHSEa

Not only is Congress precluded from usurping the COA's power to audit the JDF, Congress is also bound to respect the wisdom of the judiciary in disbursing it. It is for this precise reason that, to strengthen the doctrine of separation of powers and judicial independence, Article VIII, Section 3 of the Constitution accords fiscal autonomy to the judiciary:
Sec. 3.The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be reduced by the legislature below the amount appropriated for the previous year and, after approval, shall be automatically and regularly released.

In Bengzon vs. Drilon, 31 we explained the constitutional concept of fiscal autonomy:

As envisioned in the Constitution, the fiscal autonomy enjoyed by the Judiciary,. . . contemplates a guarantee of full flexibility to allocate and utilize [its] resources with the wisdom and dispatch that [its] needs require. It recognizes the power and authority to levy, assess and collect fees, fix rates of compensation not exceeding the highest rates authorized by law for compensation and pay plans of the government and allocate and disburse such sums as may be provided by law or prescribed by them in the course of the discharge of their function. Fiscal autonomy means freedom from outside control. If the Supreme Court says it needs 100 typewriters but DBM rules we need only 10 typewriters and sends its recommendation to Congress without even informing us, the autonomy given by the Constitution becomes an empty and illusory platitude. The Judiciary. . . must have the independence and flexibility needed in the discharge of [its] constitutional duties. The imposition of restrictions and constraints on the manner the independent constitutional offices allocate and utilize the funds appropriated for their operations is anathema to fiscal autonomy and violative not only of the express mandate of the Constitution but especially as regards the Supreme Court, of the independence and separation of powers upon which the entire fabric of our constitutional system is based. In the interest of comity and cooperation, the Supreme Court, Constitutional Commissions and the Ombudsman have so far limited their objections to constant reminders. We now agree with the petitioners that this grant of autonomy should cease to be a meaningless provision. In the case at bar, the veto of these specific provisions in the General Appropriations Act is tantamount to dictating to the Judiciary how its funds should be utilized, which is clearly repugnant to fiscal autonomy. The freedom of the Chief Justice to make adjustments in the utilization of the funds appropriated for the expenditures of the judiciary, including the use of any savings from any particular item to cover deficits or shortages in other items of the judiciary is withheld. Pursuant to the Constitutional mandate, the judiciary must enjoy freedom in the disposition of the funds allocated to it in the appropriation law.

In essence, fiscal autonomy entails freedom from outside control and limitations, other than those provided by law. It is the freedom to allocate and utilize funds granted by law, in accordance with law and pursuant to the wisdom and dispatch its needs may require from time to time. Wherefore, I vote to grant the petitions (1) for this Court to exercise its jurisdiction and power of judicial review immediately; (2) to declare Rule V, Sections 16 and 17 of the Rules on Impeachment Proceedings of the House of Representatives unconstitutional and

(3) to declare the second impeachment complaint filed pursuant to such rules to be likewise unconstitutional. CALLEJO, SR., J .: I concur with modifications with the encompassing ponencia of Justice Conchita CarpioMorales. However, I find it imperative to submit this separate opinion to set forth some postulates on some of the cogent issues. Briefly, the factual antecedents are as follows: On June 2, 2003, a verified impeachment complaint was filed with the Office of the Secretary General of the House of Representatives by former President Joseph E. Estrada against Chief Justice Hilario G. Davide, Jr. and seven (7) other associate justices of the Court for violation of the Constitution, betrayal of public trust and committing high crimes. The complaint was referred to the Speaker of the House, who had the same included in the Order of Business. Thereafter, the complaint was referred to the Committee on Justice and Human Rights. On October 13, 2003, the House Committee on Justice included the first impeachment complaint in its order of business. The Committee voted that the complaint was sufficient in form. However, on October 22, 2003, the said House Committee dismissed the first impeachment complaint for insufficiency of substance. The same Committee has not yet transmitted its report to the plenary.

The following day, or on October 23, 2003, a verified impeachment complaint was filed with the Office of the Secretary General of the House by the complainants, Representatives Gilberto C. Teodoro, First District, Tarlac, and Felix William D. Fuentebella, Third District, Camarines Sur, against Chief Justice Hilario G. Davide, Jr., for graft and corruption, betrayal of public trust, culpable violation of the Constitution and failure to maintain good behavior while in office. Attached to the second impeachment complaint was a Resolution of Endorsement/Impeachment signed by at least one-third (1/3) of all the members of the House of Representatives. On October 24, 2003, the Majority and Minority Leaders of the House of Representatives transmitted to the Executive Director, Plenary Affairs Division of the House of Representatives, the aforesaid Verified Impeachment Complaint and Resolution of Endorsement for its inclusion in the Order of Business, and for the endorsement of the House to the Senate within three days from its inclusion pursuant to Section 15, Rule IV of the 2001 Rules of Procedure on Impeachment Proceedings. The Impeachment Complaint and Resolution of Endorsement were included in the business of the House of

Representatives at 2:00 p.m. of October 28, 2003. However, the matter of the transmittal of the Complaint of Impeachment was not resolved because the session was adjourned, to resume at 4:00 p.m. on November 10, 2003. On October 27, 2003, Ernesto B. Francisco, Jr. filed his petition for certiorari and prohibition for the nullification of the October 23, 2003 Impeachment Complaint with a plea for injunctive relief. The Integrated Bar of the Philippines filed a similar petition for the nullification of Sections 16 and 17 of Rule V of the 2001 House Rules of Procedure in Impeachment Proceedings. The petitioners Congressmen in G.R. No. 160295 also manifested to the Court and prayed during the hearing on November 6, 2003 that Rule V of the 2001 Rules of Procedure on Impeachment Proceedings be declared unconstitutional. Similar petitions were also filed with the Court by other parties against the same Respondents with the Court. In their Manifestation, Respondents Speaker of the House, et al., urged the Court to dismiss the petitions on the ground that the Court has no jurisdiction over the subject matter of the petition and the issues raised therein. They assert that the Court cannot prohibit or enjoin the House of Representatives, an independent and co-equal branch of the government, from performing its constitutionally mandated duty to initiate impeachment cases. They submit that the impeachment proceedings in the House is "nonjusticiable," falling within the category of "political questions," and, therefore, beyond the reach of this Court to rule upon. They counter that the October 23, 2003 Complaint was the first complaint for Impeachment filed against Chief Justice Hilario G. Davide, Jr., the complaint for Impeachment filed by former President Joseph Ejercito Estrada having been deemed uninitiated. In its Manifestation to the Court, the respondent Senate of the Philippines asserts that: (a) the petitions are premature because the Articles of Impeachment have yet to be transmitted to the Senate by the House of Representatives; and (b) the issues raised in the petition pertain exclusively to the proceedings in the House of Representatives. In his Comment on the petitions, Respondent-Intervenor Senator Aquilino Q. Pimentel, Jr. contends that the Court has no jurisdiction to resolve the legality of the October 23, 2003 Complaint/Articles of Impeachment, as the said issue involves a political question, the resolution of which is beyond the jurisdiction of the Court. It is the Senate, sitting as an Impeachment Court, that is competent to resolve the issue of whether the Complaint of Impeachment filed on October 23, 2003 was filed within the one year time-bar. The Senate, sitting as an impeachment tribunal as sole power to try and decide an impeachment case, is according to the Senator, beyond the reach of the Court to decide. The threshold issues raised by the parties may be synthesized, thus: (a) whether the Petitioners have locus standi; (b) whether the Court has jurisdiction over the subject matter of the petitions and of the issues; (c) if in the affirmative, whether the petitions are premature; (d) whether judicial restraint should be exercised by the Court; (e) whether

Sections 16 and 17 of Rule V of the House Rules of Procedure in Impeachment Cases are unconstitutional; and (f) whether the October 23, 2003 Complaint of Impeachment against the Chief Justice is time-barred. On the Issue of Locus Standi of the Petitioners I am in full accord with the ratiocinations of the ponente. The Court Has Jurisdiction over The Respondents and the Subject Matter of the Petitions In their Special Appearance and/or Manifestation, Respondents Speaker Jose de Venecia, et al. assert that the Court has no jurisdiction over the subject matter of the petitions and that it has no jurisdiction to bar, enjoin and prohibit the Respondent House of Representatives at any time from performing its constitutional mandate to initiate impeachment cases and to enjoin the Senate from trying the same. The Respondents contend that under Section 3 (1), Article VI of the Constitution, the House of Representatives shall have the exclusive power to initiate all cases of impeachment. For his part, the Respondent Intervenor Senator Aquilino Q. Pimentel, Jr. avers that under Section 6, Article XI of the Constitution, the Senate shall have the sole power to try and decide all cases of impeachment and the Court is bereft of jurisdiction to interfere in the trial and decision of the complaint against the Chief Justice. The Respondents cite the ruling of the United States Supreme Court in Walter Nixon v. United States. 2 The Respondent Speaker Jose de Venecia, et al., also cited the Commentary of Michael Gerhart on the said ruling of the United States Supreme Court that even in a case involving a violation of explicit constitutional restraint, judicial intervention would undermine impeachment effectiveness as a check on the executive, and would constitute judicial abuse of power; and that the judicial involvement in impeachment proceedings even if only for purposes of judicial review is counterintuitive because it would eviscerate the important constitutional check placed on the judiciary by the Framers. It is also contended that opening the door of judicial review to the procedures used by the Senate in trying impeachments would expose the political life of the country to months, or perhaps years of chaos. Furthermore, it is averred that judicial review of the Senate's trial would introduce the same risks of bias as would participation in the trial itself. I find the contentions of the Respondents to be without merit. By the jurisdiction of the Court over the subject matter is meant the nature of the cause of action and of the relief sought. This is conferred by the sovereign authority which organizes the court, and is to be sought for in the general nature of its powers, or in authority specially conferred. 3 It is axiomatic that jurisdiction is conferred by the Constitution and by the laws in force at the time of the commencement of the action. 4

In the petitions at bar, as can be gleaned from the averments therein, the petitioners sought the issuance of the writs of certiorari, prohibition and injunction against the Respondents, on their claim that the Respondent House of Representatives violated Section 3(5), Article XI of the Constitution when it approved and promulgated on November 28, 2001 Sections 16 and 17, Rule V of the 2001 House Rules of Procedure in Impeachment Proceedings. The Petitioners also averred in their petitions that the initiation by the Respondents Congressmen Gilbert C. Teodoro and Felix William D. Fuentebella of the impeachment case against Chief Justice Hilario G. Davide, Jr. on October 23, 2003 via a complaint for impeachment filed is barred by the one-year time line under Section 3(5), Article XI of the Constitution. They further assert that the Respondent House of Representatives committed a grave abuse of its discretion amounting to lack or excess of jurisdiction in giving due course to the October 23, 2003 Complaint of Impeachment and in insisting on transmitting the same to the Respondent Senate. Under Section 1, Article VIII of the Constitution, "judicial power is vested in the Supreme Court and in such lower courts as may be established by law. The judicial power of the Court includes the power to settle controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." In Estrada v. Desierto, 5 this Court held that with the new provision in the Constitution, courts are given a greater prerogative to determine what it can do to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. The Constitution is the supreme law on all governmental agencies, including the House of Representatives and the Senate. Under Section 4(2), Article VIII of the Constitution, the Supreme Court is vested with jurisdiction over cases involving the constitutionality, application and operation of government rules and regulations, including the constitutionality, application and operation of rules of the House of Representatives, as well as the Senate. 6 It is competent and proper for the Court to consider whether the proceedings in Congress are in conformity with the Constitution and the law because living under the Constitution, no branch or department of the government is supreme; and it is the duty of the judiciary to determine cases regularly brought before them, whether the powers of any branch of the government and even those of the legislative enactment of laws and rules have been exercised in conformity with the Constitution; and if they have not, to treat their acts as null and void. 7 Under Section 5, Article VIII of the Constitution, the Court has exclusive jurisdiction over petitions for certiorari and prohibition. The House of Representatives may have the sole power to initiate impeachment cases, and the Senate the sole power to

try and decide the said cases, but the exercise of such powers must be in conformity with and not in derogation of the Constitution.

The Respondents cannot find refuge in the ruling of the United States Supreme Court in Walter Nixon v. United States 8 because the United States Constitution does not contain any provision akin to that in Paragraph 1, Article VIII of the Constitution. The Nixon case involved the issue of whether Senate Rule XI violated Impeachment Trial Clause Articles 1, 3, cl. 6, which provides that the Senate shall have the power to try all impeachment cases. The subject matter in the instant petitions involve the constitutionality of Sections 16 and 17, Rule V of the 2001 House Rules of Procedures in Impeachment Proceedings and the issue of whether the October 23, 2003 Complaint of Impeachment is time-barred under Section 3(5), Article XI of the Constitution. Besides, unlike in the instant petitions, the U.S. Supreme Court ruled in Nixon that "there is no separate provision of the Constitution that could be defeated by allowing the Senate final authority to determine the meaning of the word 'try' in the Impeachment Trial Clause." The Court went on to emphasize that:
We agree with Nixon that [506 U.S. 224, 238] courts possess power to review either legislative or executive action that transgresses identifiable textual limits. As we have made clear, "whether the action of [either the Legislative or Executive Branch] exceeds whatever authority has been committed is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution."

The Court has jurisdiction over the issues The issue of whether or not this Court has jurisdiction over the issues has reference to the question of whether the issues are justiciable, more specifically whether the issues involve political questions. The resolution of the issues involves the construction of the word "initiate." This, in turn, involves an interpretation of Section 3(5), Article XI of the Constitution, in relation to Sections 3(1) and 3(2) thereof, which read:
Sec. 3.(1)The House of Representatives shall have the exclusive power to initiate all cases of impeachment. (2)A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be

calendared for consideration by the House within ten session days from receipt thereof. (3)A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. (4)In case the verified complaint or resolution of impeachment is filed by at least one-third of all Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (5)No impeachment proceedings shall be initiated against the same official more than once within a period of one year.

The construction of the word "initiate" is determinative of the resolution of the issues of whether Sections 16 and 17, Rule V of the 2001 House Rules of Procedure in Impeachment Proceedings violated Section 3(5), Article XI of the Constitution or not; and whether the October 23, 2003 Complaint of Impeachment is a violation of the proscription in Section 3(5), Article XI of the Constitution against impeachment proceedings being initiated against the same Respondent more than once within a period of one year. The issue as to the construction of Rule V of the 2001 House Rules of Procedure affects a person other than the Members of the House of Representatives, namely, Chief Justice Hilario G. Davide, Jr. These questions are of necessity within the jurisdiction of the Court to resolve. As Justice Brandeis said in United States v. George Otis Smith, 9 as to the construction to be given to the rules affecting persons other than members of the Senate, the question presented is of necessity a judicial one. In Santiago v. Sandiganbayan, 10 this Court held that it is an impairment or a clear disregard of a specific constitutional precept or provision that can unbolt the steel door for judicial intervention. In Integrated Bar of the Philippines v. Zamora, 11 this Court held that when the grant of power is qualified, conditional or are subject to limitations, the issue of whether the proscribed limitations have been met or the limitations respected, is justiciable the problem being one of legality or validity, not its wisdom. Moreover, the jurisdiction to determine constitutional boundaries has been given to this Court. Even in Nixon v. Unites States, 12 the Supreme Court of the Unites States held that whether the action of the Legislative exceeds whatever authority has been committed is itself a delicate exercise in constitutional interpretation, and is the responsibility of the Supreme Court as the ultimate interpreter of the Constitution. On the prematurity of the petition and the need for Judicial Restraint There is no doubt that the petitions at bar were seasonably filed against the respondents Speaker Jose de Venecia and his co-respondents. In Aquilino Pimentel Jr. v. Aguirre, 13 this Court ruled that upon the mere enactment of the questioned law or the approval of

the challenged action, the dispute is said to have ripened into a judicial controversy even without any other overt act. Indeed, even a singular violation of the Constitution and/or the law is enough to awaken judicial duty. In this case, the respondents had approved and implemented Sections 16 and 17, Rule V of the 2001 of the Rules of Procedure, etc. and had taken cognizance of and acted on the October 23, 2003 complaint of impeachment; the respondents are bent on transmitting the same to the respondent Senate. Inscrutably, therefore, the petitions at bar were seasonably filed against said respondents. However, I agree with the respondent Senate that the petitions were premature, the issues before the Court being those that relate solely to the proceedings in the House of Representatives before the complaint of impeachment is transmitted by the House of Representatives to the Senate. On the issue of judicial self-restraint, Amici Curiae Dean Raul Pangalangan and Dean Pacifico Agabin presented two variant aspects: Dean Raul Pangalangan suggests that the Court orders a suspension of the proceedings in this Court and allow the complainants to withdraw their complaints and the House of Representatives to rectify Rule V of the 2001 House Rules of Procedure. Dean Pacifico Agabin suggests that the Court deny due course and dismiss the petitions to enable the Senate to resolve the issues in the instant cases. Their proposals prescind from the duty of the Court under Section 1, Article VIII of the Constitution to resolve the issues in these cases. The suggestions of the amici curiae relate to the principles of exhaustion of administrative remedies and the doctrine of primary jurisdiction. I find the suggestions of the amici curiae unacceptable. First. The complainants and the endorsers of their complaint and even the House of Representatives through the Respondent Speaker Jose de Venecia are bent on transmitting the impeachment complaint to the Senate without delay. Second. The courts should take cognizance of and resolve an action involving issues within the competence of a tribunal of special competence without the need of the latter having to resolve such issue where, as in this case, Respondent Speaker Jose de Venecia and his co-respondents acted with grave abuse of discretion, arbitrariness and capriciousness is manifest. 14 Third. The issue of whether or not the October 23, 2003 complaint of impeachment is time-barred is not the only issue raised in the petitions at bar. As important, if not more important than the said issue, is the constitutionality of Sections 16 and 17, Rule V of the 2001 House Rules of Procedure. In fact, the resolution of the question of whether or not the October 23, 2003 complaint for impeachment is time-barred is anchored on and is inextricably interrelated to the resolution of this issue. Furthermore, the construction by the Court of the word "initiate" in Sections 3(1) and (5) in relation to Section 3(3), Article XI of the Constitution is decisive of both issues.

Fourth. The Senate has no jurisdiction to resolve the issue of the constitutionality of Sections 16 and 17, Rule V of the 2001 House Rules of Procedure, in the same manner that the House of Representatives has no jurisdiction to rule on the constitutionality of the Impeachment Rules of the Senate. The Senate and the House of Representatives are coequal. I share the view of Justice Isagani Cruz in his concurring opinion in Fernandez v. Torres 15 that an unconstitutional measure should be slain on sight. An illegal act should not be reprieved by procedural impediments to delay its inevitable annulment. If the Court resolves the constitutionality of Rule V of the 2001 Rules of Procedure, and leaves the issue of whether the October 23, 2003 Complaint of Impeachment to be resolved by the Senate, this will promote multiplicity of suits and may give rise to the possibility that the Court and the Senate would reach conflicting decisions. Besides, in Daza v. Singson 16 this Court held that the transcendental importance to the public, strong reasons of public policy, as well as the character of the situation that confronts the nation and polarizes the people are exceptional circumstances demanding the prompt and definite resolution of the issues raised before the Court.

Fifth. The doctrine of primary jurisdiction comes into play in the Senate only upon the transmittal of the impeachment complaint to it. Sixth. The resolution of whether the October 23, 2003 Complaint of Impeachment is time-barred does not require the application of a special skill or technical expertise on the part of the Senate. Sections 16 and 17, Rule V of the 2001 Rules of Procedure, etc. is unconstitutional The October 23, 2003 Complaint of impeachment is time-barred The petitioners contend that Sections 16 and 17, Rule V of the 2001 House Rules of Procedure construing Section 3(5), Article XI is unconstitutional. Respondent Speaker Jose G. de Venecia and his co-respondents contend that the June 2, 2003 Complaint for Impeachment filed by former President Joseph E. Estrada against Chief Justice Hilario Davide, Jr., and seven other Justices of the Supreme Court "did not reach first base and was never initiated by the House of Representatives, and, in fact, the committee report has yet to be filed and acted upon by the House of Representatives." The respondents further assert that the only complaint for impeachment officially initiated by the House of Representatives is the October 23, 2003 Complaint filed by Congressmen Gilberto Teodoro and Felix William Fuentebella. The respondents finally contend that their interpretation of Rule V of the 2001 Rules of Procedure in relation to Sections 3(4) and 3(5), Article XI of the Constitution is the only rational and reasonable interpretation that can be given, otherwise, the extraordinary remedy of impeachment will never be effectively carried out because impeachable officials can conveniently allow or manipulate the filing of bogus complaints against them every year to foreclose this

remedy. The respondents cite the commentary of Fr. Joaquin Bernas, one of the amici curiae of the Court in his book, "The 1987 Constitution of the Republic of the Philippines, A Commentary, 1996 ed., p. 1989." The submissions of the respondents do not hold water. Section 3, Article XI of the Constitution reads:
SECTION 3.(1)The House of Representatives shall have the exclusive power to initiate all cases of impeachment. (2)A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. (3)A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. (4)In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (5)No impeachment proceedings shall be initiated against the same official more than once within a period of one year. (6)The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate. (7)Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment according to law.

(8)The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section.

There are two separate and distinct proceedings undertaken in impeachment cases. The first is that undertaken in the House of Representatives, which by express provision of the Constitution, is given the authority to determine the sufficiency in form and substance of the complaint for impeachment, the existence of probable cause, and to initiate the articles of impeachment in the Senate. The second is the trial undertaken in the Senate. The authority to initiate an impeachment case is lodged solely in the House of Representatives, while the authority to try and decide an impeachment case is lodged solely in the Senate. The two proceedings are independent of and separate from the other. This split authority avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution from the prevalency of a factious spirit in either of those branches. 17 It must be noted that the word "initiate" is twice used in Section 3; first in paragraph 1, and again in paragraph 5. The verb "initiate" in paragraph 1 is followed by the phrase "all cases of impeachment," while the word "initiated" in paragraph 5 of the Section is preceded by the words "no impeachment proceedings shall be." On the other hand, the word "file" or "filed" is used in paragraphs 2 and 4 of Section 3. There is a clear distinction between the words "file" and the word "initiate." Under the Rules of Civil Procedure, complaints are filed when the same are delivered into the custody of the clerk of court or the judge either by personal delivery or registered mail and the payment of the docket and other fees therefor. In criminal cases, the information or criminal complaint is considered filed when it is delivered with the court whether for purposes of preliminary investigation or for trial as the case may be. Distinction must be made between the phrase "the case" in Section 3(1) from the word "proceedings" in Section 3(5). "The case" refers to an action commenced or initiated in the Senate by the transmittal of the articles of impeachment or the complaint of impeachment by the House of Representatives for trial. The word "proceeding" means "the regular and orderly progression of a lawsuit including all acts and events between the time of commencement and the entry of judgment; an act or step that is part of a larger action; an act done by the authority or direction of the court, express or implied; it is more comprehensive than the word "action" but it may include in its general sense all the steps taken or measures adopted in the prosecution or defense of an action including the pleadings and judgment. 18 The word "initiate" means "to begin with or get going; make a beginning; perform or facilitate the first action." 19 Based on the foregoing definitions, the phrase "initiate all cases of impeachment" in Section 3(1) refers to the commencement of impeachment cases by the House of Representatives through the transmittal of the complaint for impeachment or articles of

impeachment to the Senate for trial and decision. The word "initiated" in Section 3(5), on the other hand, refers to the filing of the complaint for impeachment with the office of the Secretary General of the House of Representatives, either by a verified complaint by any member of the House of Representatives or by any citizen upon a resolution of endorsement by any member thereof, and referred to the committee of justice and human rights for action, or by the filing of a verified complaint or resolution of impeachment by at least one-third of all members of the House, which complaint shall constitute the Article of Impeachment. This is the equivalent of a complaint in civil procedure or criminal complaint or information in criminal procedure. According to amicus curiae Fr. Joaquin Bernas, the referral by the House of Representatives is the initiating step which triggers the series of steps that follow in the House of Representatives. The submission of Fr. Joaquin Bernas is shared by amicus curiae Justice Florenz D. Regalado, who, aside from being an eminent authority on Remedial Law, was also a member of the Constitutional Commission. During the hearing of this petition on November 5, 2003, he stated:
RET. JUSTICE REGALADO: The point of filing does not mean that physical act of filing. If the petition/complaint is filed and no further action was taken on it then it dies a natural death. When we say initiation of impeachment proceedings where in the Court or the House of Representatives has taken judicial cognizance by the referral to the corresponding committees should be understood as part of the filing and that is why it was then. The problem here arose in that based on the wordings of Article 11, this House of Representatives is, promulgated pursuant to the power granted to them, the rules, Rule 2, Sections 2 and 3, on December 15, 1998 following the wording of the Constitution. But then, on November 28, 2001 they promulgated Rule 5, Section 16 and 17, this time requiring the vote of 1/3 for the purpose of initiating the proceeding obliviously possibly of the fact that the Constitution as worded and amended by the Maambong suggestion or advice was that it was it is initiated from the moment of filing. The reason given and the justification given for that change was that it would enable the, somebody in collusion with the one who is going to be impeached to file what they call, what one petitioner calls here a "bogus" complaint for impeachment and thereby give the party there in effect immunity for one year from the filing of an impeachment case, which is meritorious. Now, number 1, I do not agree with that explanation because that is against the Constitution. Strictly against the Constitution, that was a grave abuse of discretion to change it. And further more, Second, that so-called problem about somebody coming in to file a "bogus" impeachment complaint just to save the respondent for one year from another complaint is not beyond solution. The mere fact that a "bogus" or insufficient or meritorious complaint was deliberately

resorted to in order to illegally avail of the one year period is the filing of a sham pleading which has not produce any effect even in the Rules of Court we have proceedings, we have provisions about sham pleadings, and for that matter the Court can even motu proprio dismiss that initiatory pleading and here the House of Representatives I am sure could also dismiss a sham bogus or sham complaint for impeachment. Now, on the matter of a problem therein because the rules must always comply with the Constitution and it must be subject to Constitutional sufficiency. The political, the question of the sole power of the Senate to try and decide, will lie as obvious the matter of prematurity. Well, as I said this is not premature, although I understand that Senate President Drilon pointed out that it was premature to sent him a copy or resolution inviting them to observe to avoid any act which would render academic wherein in the first place we are only on the first stage here. This Court has not yet acquired jurisdiction to try the case on the merits, precisely the Court stated that the petition are not yet being given due course, so they might, but at any rate, it is not premature. . . . the inevitable result is not if the complaint with the votes are submitted to the Senate, the Senate has no other recourse but to actually try the case. 20

The Rules of Procedure adverted to by the Justice Florenz D. Regalado is Sections 16 and 17, Rule V which reads:
Sec. 16.Impeachment Proceedings Deemed Initiated. In cases where a Member of the House files a verified complaint of impeachment or a citizen files a verified complaint that is endorsed by a Member of the House through a resolution or endorsement against an impeachable officer, impeachment proceedings against such official are deemed initiated on the day the Committee on Justice finds that the verified complaint and/or resolution against such official, as the case may be, is sufficient in substance or on the date the house votes to overturn or affirm the finding of the said committee that the verified complaint and/or resolution, as the case may be, is not sufficient in substance. In cases where a verified complaint or a resolution of impeachment if filed or endorsed, as the case may be, by at least one-third (1/3) of the Members of the House, impeachment proceedings are deemed initiated at the time of the filing of such verified complaint or resolution of impeachment with the Secretary General. Sec. 17.Bar Against Initiation of Impeachment Proceedings. Within a period of one (1) year from the date of impeachment proceedings are deemed initiated as provided in Section 16 hereof, no impeachment proceedings, as such, can be initiated against the same official.

The House of Representatives distorted and ignored the plain words of Section 3(1), Article XI of the Constitution when it provided in Section 16, Rule V that a complaint of impeachment is "deemed initiated" in the House of Representatives "on the day the committee of justice finds that the said verified complaint and/or resolution against such official, as the case may be, is sufficient in substance or on the date the House votes to overturn or affirm the finding of the said committee that the verified complaint and/or resolution, as the case may, be is not sufficient in substance." Consequently, it also distorted the computation of the one year period time bar under Section 3(5), Article XI of the Constitution to begin only "on the day this committee on justice finds that the verified complaint and/or resolution against such official is sufficient in substance or on the date the house votes to overturn or affirm the finding of the said committee that the verified complaint and/or resolution, as the case may be, is not sufficient in substance." Since Rule V of the 2001 Rules of Procedure is contrary to the Constitution, the said rule is void. Resultantly, the complaint for impeachment against seven Justices of this Court filed by former President Joseph Ejercito Estrada with the office of the Secretary General of the House of Representatives was initiated within the context of Section 3(5), Article XI of the Constitution. The complaint was filed on June 2, 2003 and referred to the House Committee on Justice and Human Rights shortly thereafter. However, Congressmen Gilberto Teodoro and Felix William Fuentebella initiated impeachment proceedings against Chief Justice Hilario G. Davide, Jr., with the Resolution of Endorsement of the Complaint for Impeachment by more than one-third of the members of the House of Representatives on October 23, 2003 well within one year from the initiation of the June 2, 2003 of former President Joseph E. Estrada. Irrefragably then, the October 23, 2003 complaint for impeachment filed by Congressmen Gilberto C. Teodoro, Jr. and Felix William D. Fuentebella is a second complaint for impeachment, which, under Section 3(5), Article XI of the Constitution, is proscribed. IN THE LIGHT OF ALL THE FOREGOING, I vote to DENY DUE COURSE and to DISMISS all the petitions against the respondent Senate of the Philippines; and to DENY DUE COURSE and DISMISS the petition in G.R. No. 160397; and to give due course and grant the rest of the petitions against the respondent Speaker Jose G. de Venecia and his co-respondents. Accordingly, Rule V of the 2001 House Rules of Procedure in Impeachment Proceedings which was approved by the respondent House of Representatives on November 28, 2001 is UNCONSTITUTIONAL. The complaint of impeachment filed by the respondents Representatives Gilberto C. Teodoro, Jr. and Felix William G. Fuentebella on October 22, 2003 is barred under Article XI, Section 3(5) of the Constitution. AZCUNA, J .: On June 2, 2003 a complaint for impeachment was filed in the House of Representatives against Chief Justice Hilario G. Davide, Jr. and seven Associate Justices of the Supreme

Court. Filed by former President Joseph E. Estrada, the complaint accused the respondents of conspiring to remove him from power in violation of the Constitution. After referral to the Committee on Justice, and after several hearings thereon, the Committee voted that the complaint was sufficient in form. Subsequently, however, on October 22, 2003, said Committee voted to dismiss the complaint for being insufficient in substance. The next day, on October 23, 2003, another complaint for impeachment was filed in the House of Representatives, this time only against Chief Justice Hilario G. Davide, Jr.. It was filed by two Members of the House, namely, Representative Felix William D. Fuentebella and Representative Gilberto C. Teodoro, Jr., and charged the respondent with violating the law on the use of the Judiciary Development Fund (JDF). Subsequently, and before the complaint could be referred to the Committee on Justice, more than seventy three other Representatives signed "resolutions of endorsement/impeachment," in relation to said complaint. As the total number of those who filed and those who signed the "resolutions of endorsement/impeachment" reached at least one-third of the members of the House, the complainants and their supporters were poised to move for the transmittal of the complaint, as constituting the Articles of Impeachment, to the Senate. At this point, six of the petitions, which now total seventeen, seeking to declare the second complaint unconstitutional were filed with this Court. The petitioners include two Members of the House of Representatives (Representative Salacnib F. Baterina and Deputy Speaker Raul M. Gonzales), later joined by six other Members thereof. The Integrated Bar of the Philippines also filed a petition, while the others were Former Solicitor General Francisco I. Chavez, other prominent lawyers, civic, labor and publicinterest organizations, private individuals and plain taxpayers. On October 28, 2003, the House of Representatives adjourned its session until November 10, 2003, for lack of quorum, which left the proponents of the impeachment unable to move to transmit their complaint to the Senate. Also, on that date, this Court, acting on the petitions, without granting the same due course, issued a status quo resolution. The Senate President, the Honorable Franklin M. Drilon, on behalf of the Senate, filed a Manifestation stating that the matter of the impeachment is not yet with the Senate as it has not received the complaint or Articles of Impeachment from the House. The House of Representatives, through the Speaker, the Honorable Jose de Venecia, Jr., as well as the other Members of the House who support the complaint of impeachment, for their part, through the legal counsel of the House, filed a Manifestation essentially

questioning the jurisdiction of the Court on the ground that the matter involves a political question that is, under the Constitution, the sole prerogative of the House. Senator Aquilino Q. Pimentel, Jr. was allowed to intervene and filed a Manifestation stating that the Court has no jurisdiction over the matter, as it is a political question that is addressed solely and exclusively to the Senate and the House of Representatives, and thus not justiciable. The Solicitor General filed a Manifestation taking the position that the Court has jurisdiction, that the matter is justiciable, and that the filing of the second impeachment complaint subject of the petition is in violation of the Constitution. On November 5 and 6, 2003, the Court en banc heard the eight amici curiae, as well as the representatives and counsel of the parties. The Speaker and the House of Representatives and proponent-Members thereof, made no appearance at said hearing. First, the preliminary or threshold issues, locus standi, justiciability, jurisdiction, ripeness and propriety. There can be no serious challenge as to petitioners' locus standi. Eight are Members of the House of Representatives, with direct interest in the integrity of its proceedings. Furthermore, petitioners as taxpayers have sufficient standing, in view of the transcendental importance of the issue at hand. It goes beyond the fate of Chief Justice Davide, as it shakes the very foundations of our system of government and poses a question as to our survival as a democratic polity. There is, moreover, an actual controversy involving rights that are legally demandable, thereby leaving no doubt as to the justiciability of the petitions. As to the jurisdiction of this Court, and whether the issue presents a political question that may not be delved into by the Court, it is necessary to look into the structure and essence of our system of government under the Constitution. The starting principle is that the Philippines is a democratic and republican State and that sovereignty resides in the people and all governed authority emanates from them (Art. II, Sec. 1). As a republican State, the sovereign powers of the people are for the most part exercised through representatives and not directly, except in the cases of suffrage, referenda and initiatives. Furthermore, the form of government we chose is that of a tripartite Presidential system, whereby the great powers of government are divided among three separate, co-equal and

co-ordinate Departments. Accordingly, Articles VI, VII and VIII of the Constitution provide for the Legislative Department, the Executive Department and the Judicial Department, with the corresponding powers to make, to enforce and to interpret the laws.

The idea is to prevent absolutism that arises from a monopoly of power. Abuse is to be prevented by dividing power, and providing for a system of checks and balances. Historically, one such method of checks and balances is the institution of impeachment, or the procedure of removing high officials on grounds spelled out in the Constitution. It was designed as a check by the Legislative Department on the Executive and Judicial Departments. It is worth noting, however, that the Constitution places the provision on impeachment, not in Articles VI, VII and VIII on governmental powers, but in Article XI on Accountability of Public Officers. This placement is clearly intentional and meant to signal the importance of the accountability of public officers, and that impeachment is an instrument of enforcing or securing that accountability, and not simply a method of checks and balances by one power over another. Now, how does Article XI provide for this power of impeachment? Again, it divides the power the first part, or the power to "initiate," is given exclusively to the House of Representatives. The second part, the power to try and decide, is given solely to the Senate. The provisions in full are, as follows:
Article XI Accountability of Public Officers xxx xxx xxx Section 3(1)The House of Representatives shall have the exclusive power to initiate all cases of impeachment. (2)A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days

thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together within the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. (3)A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. (4)In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (5)No impeachment proceedings shall be initiated against the same official more than once within a period of one year. (6)The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate. (7)Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial and punishment according to law. (8)The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section.

It is clear, therefore, that unlike the Constitutions of other countries, that of the Philippines, our Constitution, has opted textually to commit the sole power and the exclusive power to this and to that Department or branch of government, but in doing so it has further provided specific procedures and equally textually identifiable limits to the exercise of those powers. Thus, the filing of the complaint for impeachment is provided for in detail as to who may file and as to what shall be done to the complaint after it is filed, the referral to the proper Committee, its hearing, its voting, its report to the House, and the action of the House thereon, and the timeframes for every step (Subsection 2). Similarly, the required number of votes to affirm or override a favorable or contrary resolution is stated (Subsection 3).

So, also, what is needed for a complaint or resolution of impeachment to constitute the Articles of Impeachment, so that trial by the Senate shall forthwith proceed, is specifically laid down, i.e., a verified complaint or resolution of impeachment filed by at least one-third of all the Members of the House (Subsection 4). It is my view that when the Constitution not only gives or allocates the power to one Department or branch of government, be it solely or exclusively, but also, at the same time, or together with the grant or allocation, specifically provides certain limits to its exercise, then this Court, belonging to the Department called upon under the Constitution to interpret its provisions, has the jurisdiction to do so. And, in fact, this jurisdiction of the Court is not so much a power as a duty, as clearly set forth in Article VIII, Section 1 of the Constitution:
Section 1.The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes THE DUTY of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis ours)

This function of the Court is a necessary element not only of the system of checks and balances, but also of a workable and living Constitution. For absent an agency or organ that can rule, with finality, as to what the terms of the Constitution mean, there will be uncertainty if not chaos in governance, i.e., no governance at all. This is what the noted writer on legal systems, Prof. H.L.A. Hart, calls the need for a Rule of Recognition in any legal system, without which that system cannot survive and dies (HART, THE CONCEPT OF LAW, 92, 118). From as far back as Angara v. Electoral Commission, 63 Phil. 139 (1936), it has been recognized that this is not the supremacy of the Court. It is the supremacy of the Constitution and of the sovereign Filipino people who ordained and promulgated it. Proceeding, then, to do our duty of construing the Constitution in a matter of profound necessity, we are called upon to rule whether the second complaint of impeachment is in accord with Article XI, Sec. 3(5) of the Constitution, which states:
No impeachment proceedings shall be initiated against the same official more than once within a period of one year.

I say it is not.

The purpose of this provision is two-fold: to prevent undue or too frequent harassment; and (2) to allow the legislature to do its principal task, legislation. As aptly put by the Association of Retired Justices of the Supreme Court:
"The debate as to the sense of the provision starts with the 1986 Constitutional Commission. Commissioner Villacorta, Commissioner of the 1986 Constitutional Commission, posited this query: MR. VILLACORTA. Madam President, I would just like to ask the Committee three questions: On Section 3, page 2, lines 12 to 14, the last paragraph reads as follows: 'No impeachment proceedings shall be initiated against the same official more than once within a period of one year.' Does this mean that even if an evidence is discovered to support another charge or ground for impeachment, a second or subsequent proceeding cannot be initiated against the same official within a period of one year? In other words, one year has to elapse before a second or subsequent charge or proceeding can be initiated. The intention may be to protect the public official from undue harassment. On the other hand, is this not undue limitation on the accountability of public officers? Anyway, when a person accepts a public trust, does he not consider taking the risk of accounting for his acts or misfeasance in office?

The query produced this answer:

MR. ROMULO. Yes, the intention here really is to limit. This is not only to protect public officials who, in this case, are of the highest category from harassment but also to allow the legislative body to do its work which is lawmaking. Impeachment proceedings take a lot of time. And if we allow multiple impeachment charges on the same individual to take place, the legislature will do nothing else but that. (Emphasis ours.) "Madame Justice Cecilia Muoz-Palma [President of the Constitutional Commission], in her article "We should remain steadfast with rule of law," Manila Bulletin, October 28, 2003, wrote: The Foundation makes of record its considered view, based on the RECORD OF THE CONSTITUTIONAL COMMISSION OF 1986, at pages 373 to 376, and at 382 that:" 1.'Initiation' refers to the filing of any verified complaint by a Member of the House or by a citizen, with the endorsement of a Member of the House, as provided in Section 3 (2) of Article XI of the

Constitution, and initiation could not therefore refer to the filing of the Articles of Impeachment in the Senate. 2.The one-year prohibition was intended by the framers of the Constitution to allow Congress to continue with its main task (emphasis in the original) "It is noted that in the Commissioner Villacorta query and the Commissioner Romulo reply, the following values were considered: 'to protect the public official from undue harassment,' '(not to impose an) undue limitation on the accountability of public officers,' 'acceptance of public trust' and 'to allow the legislative body to do its work which is lawmaking.' In the end, Commissioner Romulo struck this balance: '[T]his is not only to protect public officials who, in this case, are of the highest category from harassment but also to allow the legislative body to do its work which is lawmaking.'" (Emphasis ours.)

The contention is advanced that the second complaint is not covered by the provision because under the Rules of Procedure in Impeachment Proceedings, adopted by the House on November 28, 2001, the first complaint filed in June, four months earlier, is not yet "deemed initiated," since it has not been reported to the floor of the House of Representatives. To my mind, this position is not tenable. This would stretch the meaning of "initiate" and defeat the purpose of the provision of the Constitution. It would allow considerable harassment from multiple complaints filed within one year against the same official. And, what is even more telling, it would tie up the Legislature, particularly the House of Representatives, in too frequent and too many complaints of impeachment filed before it, leaving it little time to attend to its principal task of legislation, as is in fact happening now. Therefore, the Rules referred to cannot be so interpreted as to defeat the objectives of Art. XI, Section 3 (5). For the very grant of the power to adopt Rules on Impeachment, Article XI, Section 3 (8), provides, too, a limit or qualification, thus:
(8)The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section. (Emphasis ours)

And, besides, as pointed out by amicus curiae former Constitutional Commissioner, Joaquin G. Bernas, S.J., said Rules refer to what are instances when a complaint for impeachment is "deemed initiated," a matter of legal fiction, presumably for internal purposes of the House, as to the timing of some of its internal action on certain relevant matters. The Constitutional provision, on the other hand, states that "No impeachment proceedings shall be initiated," not "deemed initiated," and, therefore, refers to actual initiation, not constructive initiation by legal fiction.

It is also contended that the provision of Article XI, Sec. 3 (5) refers to impeachment proceedings in the Senate, not in the House of Representatives. This is premised on the wording of Article XI, Sec. 3 (1) which states that "The House of Representatives shall have the exclusive power to initiate all cases of impeachment." Thus, it is argued, cases of impeachment are initiated only by the filing thereof by the House of Representatives with the Senate, so that impeachment proceedings are those that follow said filing. This interpretation does violence to the carefully allocated division of power found in Article XI, Sec. 3. Precisely, the first part of the power is lodged with the House, that of initiating impeachment, so that a respondent hailed by the House before the Senate is a fact and in law already impeached. What the House initiates in the Senate is an impeachment CASE, not PROCEEDINGS. The proceedings for impeachment preceded that and took place exclusively in the House (in fact, non-members of the House cannot initiate it and there is a need for a House member to endorse the complaint). And what takes place in the Senate is the trial and the decision. For this reason, Subsections (1) to (5) of Article XI, Section 3 apply to the House whereas Subsections (6) and (7) apply to the Senate, and Subsection (8) applies to both, or to "Congress." There is therefore a sequence or order in these subsections, and the contrary view disregards the same. Also, as aforestated, the very rules of the House are entitled "Rules of Procedure in Impeachment Proceedings," and relate to every step of the impeachment proceedings, from the filing of the complaint with the House up to the formation of a Prosecution panel. I earlier adverted to the placement of the power of impeachment, not in the Articles on governmental powers, but in the Article on accountability. This indicates that such power is not essentially legislative in character, and is not primarily intended as a check by the Legislative Department on the other branches. Its main purpose, at least under our Constitution, is to achieve accountability, but this is to be done without detriment to the governmental power of legislation under Article VI. A second complaint is not forever barred, but only temporarily so, or until June of 2004, to forestall disruption of the principal task of legislative work. As it is, without casting aspersions on co-equal Departments but stressing only the fact that all the Departments have so much to do and so little time to do it, the national budget is yet to be approved. The rationale of the Constitutional provision is, thus, evident. Finally, prudential considerations are urged to allow the political Departments to correct any mistake themselves, rather than for the Court to intervene.

It is not certain, however, whether the Senate is called upon to review what the House has done in the exercise of its exclusive power to initiate all cases of impeachment, any more that the House is wont to interfere with the sole power of the Senate to try and decide all such cases. Besides, the Senate action would itself be part of what is sought to be avoided by Subsection 5, namely, disruption of legislative work. For all these reasons, I vote to grant the petitions by declaring the second complaint of impeachment as one that, for now, runs counter to Article XI, Section 3 (5) of the Constitution. TINGA, J .: "May you live in interesting times," say the Chinese. Whether as a curse or a blessing, the Filipinos' lot, it seems, is to live in "interesting" times. In our recent past, we saw the imposition of martial law, 1 the ratification of a new Constitution, 2 the installation of a revolutionary government, 3 the promulgation of a provisional Constitution 4 the ratification of the present one, 5 as well as attempted power-grabs by military elements resulting in the arrest of the then Defense Minister. 6 We saw the fall from grace of a once popular president, and the ascension to office of a new president. 7 To all these profound events, the Court bore witness not silent but, possibly, muted. In all these profound events, the Court took part mostly passive and, sometimes, so it is said, active by upholding or revoking State action. Today, the Court is again asked to bear witness and take part in another unparalleled event in Philippine history: the impeachment of the Chief Justice. Perhaps not since Javellana and the martial law cases has the Supreme Court, even the entire judiciary, come under greater scrutiny. The consequences of this latest episode in our colorful saga are palpable. The economy has plunged to unprecedented depths. The nation, divided and still reeling from the last impeachment trial, has again been exposed to a similar spectacle. Threats of "military adventurists" seizing power have surfaced. Punctuating the great impact of the controversy on the polity is the astounding fast clip by which the factual milieu has evolved into the current conundrum of far-reaching proportions. Departing from the tradition of restraint of the House of Representatives, if not acute hesitancy in the exercise of its impeachment powers, we saw more than onethird of the House membership flexed their muscles in the past fortnight with no less than the Chief Justice as the target. On June 2, 2003, former President Estrada filed a complaint for impeachment before the House of Representatives against six incumbent members of the Supreme Court who

participated in authorizing the administration of the oath to President Macapagal-Arroyo and declaring the former president resigned in Estrada v. Desierto. 8 Chief among the respondents is Chief Justice Hilario G. Davide, Jr. 9 himself, the same person who copresided the impeachment trial of Estrada and personally swore in Macapagal-Arroyo as President. Also impleaded in the complaint are two other justices 10 for their alleged role, prior to their appointment to this Court, in the events that led to the oath-taking. Nothing substantial happened until the House Committee on Justice included the complaint in its Order of Business on October 13, 2003, and ruled that the same was "sufficient in form." However, the Committee dismissed the complaint on October 22, 2003 for being insufficient in substance. But the Committee deferred the preparation of the formal Committee Report that had to be filed with the Rules Committee. As it turned out, there was a purpose behind the delay. The next day, on October 23, 2003, another complaint was filed by respondent Representatives Gilberto Teodoro, Jr. and Felix William Fuentebella against the Chief Justice alone, alleging irregularities in the administration of the Judiciary Development Fund. Several petitions, eighteen in all, were filed before this Court, most of them assailing specific provisions of the House of Representatives' Rules on Impeachment, as well as the second impeachment complaint against the Chief Justice, for being contrary to Section 3 (5), Article XI of the Constitution on Accountability of Public Officers. Sections 2 and 3 of said Article read in full:
SEC. 2.The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. SEC. 3.(1)The House of Representatives shall have the exclusive power to initiate all cases of impeachment. (2)A verified complaint for impeachment may be filed by any member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof.

(3)A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. (4)In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (5)No impeachment proceedings shall be initiated against the same official more than once within a period of one year. (6)The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate. (7)Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial and punishment according to law. (8)The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section. [Emphasis supplied.]

The impugned House of Representatives Rules on Impeachment, specifically, Sections 16 and 17, Rule V (Bar against Initiation of Impeachment Proceedings against the same Official), provide:
Sec. 16.Impeachment Proceedings Deemed Initiated. In cases where a Member of the House files a verified complaint of impeachment or a citizen files a verified complaint that is endorsed by a Member of the House through a resolution of endorsement against an impeachable officer, impeachment proceedings against such official are deemed initiated on the day the Committee on Justice finds that the verified complaint and/or resolution against such official, as the case may be is sufficient in substance or on the date the House votes to overturn or affirm the finding of said Committee that the verified complaint and/or resolution, as the case may be, is not sufficient in substance. In cases where a verified complaint or resolution of impeachment is filed or endorsed, as the case may be, by at least one-third (1/3) of the Members of the House, impeachment proceedings are deemed initiated at the time of the filing of such verified complaint or resolution of impeachment with the Secretary General.

Sec. 17.Bar Against Initiation of Impeachment Proceedings. Within a period of one (1) year from the date impeachment proceedings are initiated as provided in Section 16 hereof, no impeachment proceedings, as such, can be initiated against the same official.

In light of these contentions, petitioners indeed, the whole Filipino nation ask: What is the Court going to do? To this, the Court answers: We do our duty. The Constitution lodges on the House of Representatives "the exclusive power to initiate all cases of impeachment," 11 and on the Senate, "the sole power to try and decide all cases of impeachment." 12 But the power of impeachment is not inherently legislative; it is executive in character. Neither is the power to try and decide impeachment cases; it is judicial by nature. Thus, having emanated from the Constitution, the power of impeachment is circumscribed by constitutional limitations. Even if impeachment as a legal concept is sui generis, it is not supra legem. An examination of the various constitutions which held sway in this jurisdiction reveals structural changes in the legislature's role in the impeachment process. The 1935 Constitution, as amended, was stark in its assignation of the impeachment authority. Therein, the House of Representatives was vested "the sole power of impeachment," 13 while the Senate had "the sole power to try all impeachments," 14 No other qualifications were imposed upon either chamber in the exercise of their respective functions other than prescribing the votes required for either chambers exercise of their powers, listing the public officials who are impeachable, and enumerating the grounds for impeachment. The 1935 Constitution was silent on the procedure. It was similar in this regard to the United States Constitution. 15 The 1973 Constitution provided a different system. As it ordained a unicameral legislature, the power to impeach, try and decide impeachment cases was lodged on a single body, the Batasang Pambansa. 16 The new structure would necessitate a change in constitutional terminology regarding impeachment, the significance of which I shall discuss later. But despite the change, the Constitution did not impose any new limitation that would hamstring the Batasang Pambansa in the discharge of its impeachment powers other than the required majorities. Now comes the 1987 Constitution. It introduces conditionalities and limitations theretofore unheard of. An impeachment complaint must now be verified. 17 If filed by any member of the House of Representatives or any citizen with the endorsement of a House Member, it shall be included in the order of business within ten session days, and referred to the proper committee within three session days thereafter. 18 Within sixty days after the referral, and after hearing and upon majority vote of all its members, the proper committee shall submit its report to the House, together with the corresponding resolution, and the House shall calendar the same for consideration within ten days from

receipt. 19 No impeachment proceedings shall be initiated against the same official more than once within a period of one year. 20 While these limitations are intrusive on rules of parliamentary practice, they cannot take on a merely procedural character because they are mandatory impositions made by the highest law of the land, and therefore cannot be dispensed with upon whim of the legislative body. 21 Today, it must be settled once and for all which entity shall determine whether impeachment powers have been exercised in accordance with law. This question is answered definitively by our Constitution. Section 1, Article VIII of the Constitution provides:
The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

Article VIII, Section 1 is a rule of jurisdiction, 22 one that expands the Supreme Court's authority to take cognizance of and decide cases. No longer was the exercise of judicial review a matter of discretion on the part of the courts bound by perceived notions of wisdom. No longer could this Court shirk from the "irksome task of inquiring into the constitutionality and legality of legislative or executive action when a justiciable controversy is brought before the courts by someone who has been aggrieved or prejudiced by such action." 23 An eminent member of the present Court, Justice Puno, described the scope of judicial power in this wise:
In the Philippine setting, there is a more compelling reason for courts to categorically reject the political question defense when its interposition will cover up abuse of power. For section 1, Article VIII of our Constitution was intentionally cobbled to empower courts ". . . to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." This power is new and was not granted to our courts in the 1935 and 1972 Constitutions. It was not also Xeroxed from the US Constitution or any foreign state constitution. The CONCOM granted this enormous power to our courts in view of our experience under martial law where abusive exercises of state power were shielded from judicial scrutiny by the misuse of the political question doctrine. Led by the eminent former Chief Justice Roberto Concepcion, the CONCOM expanded and sharpened the checking powers of the judiciary vis-a-vis the Executive and the Legislative departments of government. In cases involving the proclamation of martial law and suspension of the privilege of habeas

corpus, it is now beyond dubiety that the government can no longer invoke the political question defense. In Tolentino v. Secretary of Finance, I posited the following postulates: xxx xxx xxx Section 1.The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. Former Chief Justice Roberto R. Concepcion, the sponsor of this provision in the Constitutional Commission explained the sense and the reach of judicial power as follows: xxx xxx xxx . . . In other words, the judiciary is the final arbiter on the question of whether or not a branch of government or any of its officials has acted without jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature. This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute political question.

The Constitution cannot be any clearer. What it granted to this Court is not a mere power which it can decline to exercise. Precisely to deter this disinclination, the Constitution imposed it as a duty of this Court to strike down any act of a branch or instrumentality of government or any of its officials done with grave abuse of discretion amounting to lack or excess of jurisdiction. Rightly or wrongly, the Constitution has elongated the checking powers of this Court against the other branches of government despite their more democratic character, the President and the legislators being elected by the people. 24

Thus, in the case of the House and Senate Electoral Tribunals, this Court has assumed jurisdiction to review the acts of these tribunals, notwithstanding the Constitutional mandate that they shall act as "sole judges" of all contests relating to the election, returns,

and qualifications of the members of Congress. The Court asserted this authority as far back as 1936, in the landmark case of Angara v. Electoral Commission. 25 More recently, this Court, speaking through Justice Puno, expounded on the history of the Court's jurisdiction over these tribunals:
In sum, our constitutional history clearly demonstrates that it has been our consistent ruling that this Court has certiorari jurisdiction to review decisions and orders of Electoral Tribunals on a showing of grave abuse of discretion. We made this ruling although the Jones Law described the Senate and the House of Representatives as the 'sole judges' of the election, returns, and qualifications of their elective members. It cannot be overstressed that the 1935 Constitution also provided that the Electoral Tribunals of the Senate and the House shall be the 'sole judge' of all contests relating to the election, returns, and qualifications of their respective Members. Similarly, the 1973 Constitution transferred to the COMELEC the power be the 'sole judge' of all contests relating to the election, returns, and qualifications of all members of the Batasang Pambansa. We can not lose sight of the significance of the fact that the certiorari jurisdiction of this Court has not been altered in our 1935, 1973 and 1987 Constitutions. . . . In the first place, our 1987 Constitution reiterated the certiorari jurisdiction of this Court on the basis of which it has consistently assumed jurisdiction over decisions of our Electoral Tribunals. In the second place, it even expanded the certiorari jurisdiction of this Court on the basis of which it has consistently assumed jurisdiction over decision of our Electoral Tribunals. In the second place, it even expanded the certiorari jurisdiction of this Court by defining judicial power as ". . . the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. In the third place, it similarly reiterated the power of the Electoral Tribunals of the Senate and of the House to act as the 'sole judge' of all contests relating to the election, returns, and qualifications of their respective members. 26 (citations omitted, emphasis supplied)

What circumscribes the Court's review of an act of Congress or a Presidential issuance are the limits imposed by the Constitution itself or the notion of justiciability. 27 An issue is justiciable rather than political where it involves the legality and not the wisdom of the act complained of, 28 or if it pertains to issues which are inherently susceptible of being decided on grounds recognized by law. 29 As this Court held in Tatad v. Secretary of Finance: 30
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no doubt raises a justiciable controversy. Where an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. The question thus posed is judicial rather

than political. The duty to adjudicate remains to assure that the supremacy of the Constitution is upheld. Once a controversy as to the application or interpretation of a constitutional provision is raised before this Court, it becomes a legal issue which the Court is bound by constitutional mandate to decide. 31

The petitions before us raise the question of whether the House of Representatives, in promulgating and implementing the present House Rules on Impeachment, had acted in accordance with the Constitution. 32 Some insist that the issues before us are not justiciable because they raise a "political question." 33 This view runs contrary to established authority. While the Court dismissed per its Resolution of September 3, 1985, the petition in G.R. No. 71688 (Arturo M. de Castro, et al. v. Committee on Justice, et al.) seeking to annul the resolution of the Committee on Justice of the then Batasang Pambansa a verified complaint for the impeachment of then President Marcos signed by more than one-fifth (1/5) of all the members of the Batasang Pambansa, which was the requisite number under the 1973 Constitution, and to give due course to the impeachment complaint, the Court clearly conceded that had the procedure for impeachment been provided in the 1973 Constitution itself, the outcome of the petition would have been different. Wrote the Court:
. . . Beyond saying that the Batasan may initiate impeachment by a vote of at least one-fifth of all its members and that no official shall be convicted without the concurrence of at least two-thirds of all the members thereof, the Constitution says no more. It does not lay down the procedure in said impeachment proceedings, which it had already done. The interpretation and application of said rules are beyond the powers of the Court to review . . . 34

Forty-six years ago, this Court in Taada v. Cuenco 35 was confronted with the question of whether the procedure laid down in the 1935 Constitution for the selection of members of the Electoral Tribunals was mandatory. After ruling that it was not a political question, the Court proceeded to affirm the mandatory character of the procedure in these words:
The procedure prescribed in Section 11 of Article VI of the Constitution for the selection of members of the Electoral Tribunals is vital to the role they are called upon to play. It constitutes the essence of said Tribunals. Hence, compliance with said procedure is mandatory and acts performed in violation thereof are null and void. 36

The footnote of authorities corresponding to the above-quoted pronouncement reads:

The need of adopting this view is demanded, not only by the factors already adverted to, but, also, by the fact that constitutional provisions, unlike statutory enactments, are presumed to be mandatory, 'unless the contrary is unmistakably

manifest.' The pertinent rule of statutory construction is set forth in the American Jurisprudence as follows: In the interpretation of Constitutions, questions frequently arise as to whether particular sections are mandatory or directory. The courts usually hesitate to declare that a constitutional provision is directory merely in view of the tendency of the legislature to disregard provisions which are not said to be mandatory. Accordingly, it is the general rule to regard constitutional provisions as mandatory, and not to leave any discretion to the will of a legislature to obey or to disregard them. This presumption as to mandatory quality is usually followed unless it is unmistakably manifest that the provisions are intended to be merely directory. The analogous rules distinguishing mandatory and directory statutes are of little value in this connection and are rarely applied in passing upon the provisions of a Constitution. So strong is the inclination in favor of giving obligatory force to the terms of the organic law that it has even been said that neither by the courts nor by any other department of the government may any provision of the Constitution be regarded as merely directory, but that each and every one of its provisions should be treated as imperative and mandatory, without reference to the rules and distinguishing between the directory and the mandatory statutes. (II Am. Jur 686-687; emphasis supplied)

Ten years later, the Court in Gonzales v. Commission on Elections 37 resolved the issue of whether a resolution of Congress proposing amendments to the Constitution is a political question. It held that it is not and is therefore subject to judicial review.
Indeed, the power to amend the Constitution or to propose amendments thereto is not included in the general grant of legislative powers to Congress. It is part of the inherent powers of the people as the repository of sovereignty in a republican state, such as ours to make, and, hence, to amend their own Fundamental Law. Congress may propose amendments to the Constitution merely because the same explicitly grants such power. Hence, when exercising the same, it is said that Senators and Members of the House of Representatives act, not as members of Congress, but as component elements of a constituent assembly. When acting as such, the members of Congress derive their authority from the Constitution, unlike the people, when performing the same function for their authority does not emanate from the Constitution they are the very source of all powers of government, including the Constitution itself . Since, when proposing, as a constituent assembly, amendments to the Constitution, the members of Congress derive their authority from the Fundamental Law, it follows, necessarily, that they do not have the final say on whether or not their acts are within or beyond constitutional limits. Otherwise, they could brush aside and set the same at naught, contrary to the basic tenet that ours is a government of laws, not of men, and to the rigid nature of our

Constitution. Such rigidity is stressed by the fact that, the Constitution expressly confers upon the Supreme Court, the power to declare a treaty unconstitutional, despite the eminently political character of treaty-making power.

In short, the issue whether or not a Resolution of Congress acting as a constituent assembly violates the Constitution essentially justiciable, not political, and, hence, subject to judicial review, and, to the extent that this view may be inconsistent with the stand taken in Mabanag v. Lopez Vito, the latter should be deemed modified accordingly. The Members of the Court are unanimous on this point. 38

In Sanidad v. Commission on Elections 39 questioned was the power of the President to propose amendments to the Constitution on the ground that it was exercised beyond the limits prescribed by the Constitution. Holding that it was a justiciable controversy, this Court made the following disquisition:
The amending process both as to proposal and ratification, raises a judicial question. This is especially true in cases where the power of the Presidency to initiate the amending process by proposals of amendments, a function normally exercised by the legislature, is seriously doubted. Under the terms of the 1973 Constitution, the power to propose amendments to the Constitution resides in the interim National Assembly during the period of transition (Sec. 15, Transitory Provisions). After that period, and the regular National Assembly in its active session, the power to propose amendments becomes ipso facto the prerogative of the regular National Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973 Constitution). The normal course has not been followed. Rather than calling the interim National Assembly to constitute itself into a constituent assembly, the incumbent President undertook the proposal of amendments and submitted the proposed amendments thru Presidential Decree 1033 to the people in a Referendum-Plebiscite on October 16. Unavoidably, the regularity of the procedure for amendments, written in lambent words in the very Constitution sought to be amended, raises a contestable issue. The implementing Presidential Decree Nos. 991, 1031, and 1033, which commonly purport to have the force and effect of legislation are assailed as invalid, thus the issue of the validity of said Decrees is plainly a justiciable one, within the competence of this Court to pass upon. Section 2(2), Article X of the new Constitution provides: All cases involving the constitutionality of a treaty, executive agreement, or law shall be heard and decided by the Supreme Court en banc, and no treaty, executive agreement, or law may be declared unconstitutional without the concurrence of at least ten Members . . . The Supreme Court has the last word in the construction not only of treaties and statutes, but also of the Constitution itself. The amending, like all other powers organized in the Constitution, is in form a delegated and hence a limited power, so that the Supreme Court is vested with

that authority to determine whether that power has been discharged within its limits. Political questions are neatly associated with the wisdom, not the legality of a particular act. Where the vortex of the controversy refers to the legality or validity of the contested act, that matter is definitely justiciable or non-political. What is in the heels of the Court is not the wisdom of the act of the incumbent President in proposing amendments to the Constitution, but his constitutional authority to perform such act or to assume the power of a constituent assembly. Whether the amending process confers on the President that power to propose amendments is therefore a downright justiciable question. Should the contrary be found, the actuation of the President would merely be a brutum fulmen. If the Constitution provides how it may be amended, the judiciary as the interpreter of that Constitution, can declare whether the procedure followed or the authority assumed was valid or not. We cannot accept the view of the Solicitor General, in pursuing his theory of non-justiciability, that the question of the President's authority to propose amendments and the regularity of the procedure adopted for submission of the proposals to the people ultimately lie in the judgment of the latter. A clear Descartes fallacy of vicious circle. Is it not that the people themselves, by their sovereign act, provided for the authority and procedure for the amending act, provided for the authority and procedure for the amending process when they ratified the present Constitution in 1973? Whether, therefore, that constitutional provision has been followed or not is indisputably a proper subject of inquiry, not by the people themselves of course who exercise no power of judicial review, but by the Supreme Court in whom the people themselves vested that power, a power which includes the competence to determine whether the constitutional norms for amendments have been observed or not. And, this inquiry must be done a priori not a posteriori, i.e., before the submission to and ratification by the people. 40

The doctrine that may be drawn from the cited decisions is clear. The determination of compliance with a rule, requirement or limitation prescribed by the Constitution on the exercise of a power delegated by the Constitution itself on a body or official is invariably a justiciable controversy. Contrary to what respondent Speaker Jose G. De Venecia and intervenor Senator Aquilino Pimentel have posited, the ruling in Nixon v. United States 41 is not applicable to the present petitions. There, the U.S. Supreme Court held that the constitutional challenge to the hearing of the impeachment case by a committee created by the Senate is nonjusticiable. As pointed out earlier, the provisions of the 1987 Constitution on impeachment at the House level explicitly lay out the procedure, requirements and limitations. In contrast, the provision for the Senate level, like in the U.S. Constitution, is quite sparse. So, if at all, Nixon would be persuasive only with respect to the Senate

proceedings. Besides, Nixon leaves open the question of whether all challenges to impeachment are nonjusticiable. 42 The term "judicial supremacy" was previously used in relation to the Supreme Court's power of judicial review, 43 yet the phrase wrongly connotes the bugaboo of a judiciary supreme to all other branches of the government. When the Supreme Court mediates to allocate constitutional boundaries or invalidates the acts of a coordinate body, what it is upholding is not its own supremacy, but the supremacy of the Constitution. 44 When this supremacy is invoked, it compels the errant branches of government to obey not the Supreme Court, but the Constitution. There are other requisites for justiciability of a constitutional question which we have traditionally recognized namely: the presence of an actual case or controversy; the matter of standing, or when the question is raised by a proper party; the constitutional question must be raised at the earliest possible opportunity; and that the decision on the constitutional question must be necessary to the determination of the case itself. 45 Justice Carpio-Morales, in her scholarly opinion, has addressed these issues as applied to this case definitively. I just would like to add a few thoughts on the questions of standing and ripeness. It is argued that this Court cannot take cognizance of the petitions because petitioners do not have the standing to bring the cases before us. Indeed, the numerous petitioners have brought their cases under multifarious capacities, but not one of them is the subject of the impeachment complaint. However, there is a wealth of jurisprudence that would allow us to grant the petitioners the requisite standing in this case, and any lengthy disquisition on this matter would no longer be remarkable. But worthy of note is that the petitioners in G.R. No. 160295 46 are suing in their capacities as members of the House of Representatives. Considering that they are seeking to invalidate acts made by the House of Representatives, their standing to sue deserves a brief remark. The injury that petitioners-congressmen can assert in this case is arguably more demonstrable than that of the other petitioners. Relevant in this regard is our ruling in Philippine Constitution Association v. Enriquez, 47 wherein taxpayers and Senators sought to declare unconstitutional portions of the General Appropriations Act of 1994. We upheld the standing of the legislators to bring suit to question the validity of any official action which they claim infringes their prerogatives as legislators, more particularly, the validity of a condition imposed on an item in an appropriation bill. Citing American jurisprudence, we held:
[T]o the extent to the powers of Congress are impaired, so is the power of each member thereof, since his office confers arrive to participate in the exercise of the powers of that institution (Coleman v. Miller, 307 U.S. 433 [1939]; Holtzman v. Schlesinger, 484 F. 2d 1307 [1973]).

An act of the Executive which injuries the institution of Congress causes a derivative but nonetheless substantial injury, which can be questioned by a member of Congress (Kennedy v. Jones, 412 F. Supp. 353 [1976]). In such a case, any member of Congress can have a resort to the courts. 48

There is another unique, albeit uneasy, issue on standing that should be discussed. The party who can most palpably demonstrate injury and whose rights have been most affected by the actions of the respondents is the Chief Justice of this Court. Precisely because of that consideration, we can assume that he is unable to file the petition for himself and therefore standing should be accorded the petitioners who manifest that they have filed their petitions on his behalf. In a situation wherein it would be difficult for the person whose rights are asserted to present his grievance before any court, the U.S. Supreme Court held in Barrows v. Jackson 49 that the rules on standing are outweighed by the need to protect these fundamental rights and standing may be granted. 50 There is no reason why this doctrine may not be invoked in this jurisdiction.

Another point. Despite suggestions to the contrary, I maintain that the Senate does not have the jurisdiction to determine whether or not the House Rules of Impeachment violate the Constitution. As I earlier stated, impeachment is not an inherent legislative function, although it is traditionally conferred on the legislature. It requires the mandate of a constitutional provision before the legislature can assume impeachment functions. The grant of power should be explicit in the Constitution. It cannot be readily carved out of the shade of a presumed penumbra. 51 In this case, there is a looming prospect that an invalid impeachment complaint emanating from an unconstitutional set of House rules would be presented to the Senate for action. The proper recourse would be to dismiss the complaint on constitutional grounds. Yet, from the Constitutional and practical perspectives, only this Court may grant that relief . The Senate cannot be expected to declare void the Articles of Impeachment, as well as the offending Rules of the House based on which the House completed the impeachment process. The Senate cannot look beyond the Articles of Impeachment. Under the Constitution, the Senate's mandate is solely to try and decide the impeachment complaint. 52 While the Senate acts as an impeachment court for the purpose of trying and deciding impeachment cases, such "transformation" does not vest unto the Senate any of the powers inherent in the Judiciary, because impeachment powers are not residual with the Senate. Whatever powers the Senate may acquire as an impeachment court are limited to what the Constitution provides, if any, and they cannot extend to judicial-like review of the acts of co-equal components of government, including those of the House. Pursuing the concept of the Senate as an impeachment court, its jurisdiction, like that of the regular courts', has to be conferred by law and it cannot be presumed. 53 This is the

principle that binds and guides all courts of the land, and it should likewise govern the impeachment court, limited as its functions may be. There must be an express grant of authority in the Constitution empowering the Senate to pass upon the House Rules on Impeachment. Ought to be recognized too is the tradition of comity observed by members of Congress commonly referred to as "inter-chamber courtesy." It is simply the mutual deference accorded by the chambers of Congress to each other. Thus, "the opinion of each House should be independent and not influenced by the proceedings of the other." 54 While inter-chamber courtesy is not a principle which has attained the level of a statutory command, it enjoys a high degree of obeisance among the members of the legislature, ensuring as it does the smooth flow of the legislative process. Thus, inter-chamber courtesy was invoked by the House in urging the Senate to terminate all proceedings in relation to the jueteng controversy at the onset on the call for the impeachment of President Estrada, given the reality that the power of impeachment solely lodged in the House could be infringed by hearings then ongoing in the upper chamber. 55 On another occasion, Senator Joker Arroyo invoked inter-chamber courtesy in refusing to compel the attendance of two congressmen as witnesses at an investigation before the Senate Blue Ribbon Committee. 56 More telling would be the Senate's disposition as a Court of Impeachment of the Motion to Quash filed by the lawyers of President Estrada during the latter's impeachment trial. The Motion to Quash was premised on purported defects in the impeachment complaint which originated from the House of Representatives. Had the Senate granted the Motion to Quash, it would have, by implication, ruled on whether the House of Representatives had properly exercised its prerogative in impeaching the President. The Senate refused to grant the Motion to Quash, affirming the validity of the procedure adopted by the House of Representatives and expressing its conformity to the House Rules of Procedure on Impeachment Proceedings. 57 It is my belief that any attempt on the part of the Senate to invalidate the House Rules of Impeachment is obnoxious to inter-chamber courtesy. If the Senate were to render these House Rules unconstitutional, it would set an unfortunate precedent that might engender a wrong-headed assertion that one chamber of Congress may invalidate the rules and regulations promulgated by the other chamber. Verily, the duty to pass upon the validity of the House Rules of Impeachment is imposed by the Constitution not upon the Senate but upon this Court. On the question of whether it is proper for this Court to decide the petitions, it would be useless for us to pretend that the official being impeached is not a member of this Court, much less the primus inter pares. Simplistic notions of rectitude will cause a furor over the decision of this Court, even if it is the right decision. Yet we must decide this case

because the Constitution dictates that we do so. The most fatal charge that can be levied against this Court is that it did not obey the Constitution. The Supreme Court cannot afford, as it did in the Javellana case, to abdicate its duty and refuse to address a constitutional violation of a co-equal branch of government just because it feared the political repercussions. And it is comforting that this Court need not rest merely on rhetoric in deciding that it is proper for it to decide the petitions, despite the fact that the fate of the Chief Justice rests in the balance. Jurisprudence is replete with instances when this Court was called upon to exercise judicial duty, notwithstanding the fact that the application of the same could benefit one or all members of the Court. In Perfecto vs. Meer, 58 the Court passed upon the claim for a tax refund posed by Justice Gregorio Perfecto. It was noted therein that:
. . . [a]s the outcome indirectly affects all the members of the Court, consideration of the matter is not without its vexing feature. Yet adjudication may not be declined, because (a) we are not legally disqualified; (b) jurisdiction may not be renounced, as it is the defendant who appeals to this Court, and there is no other tribunal to which the controversy may be referred; (c) supreme courts in the United States have decided similar disputes relating to themselves; (d) the question touches all the members of the judiciary from top to bottom; and (e) the issue involves the right of other constitutional officers whose compensation is equally protected by the Constitution, for instance, the President, the Auditor-General and the members of the Commission on Elections. Anyway the subject has been thoroughly discussed in many American lawsuits and opinions, and we shall hardly do nothing more than to borrow therefrom and to compare their conclusions to local conditions. There shall be little occasion to formulate new propositions, for the situation is not unprecedented. 59

Again, in Endencia v. David, 60 the Court was called upon to resolve a claim for an income tax refund made by a justice of this Court. This time, the Court had the duty to rule upon the constitutionality of a law that subjected the income of Supreme Court Justices to taxation. The Court did not hesitate to tackle the matter. It held:
Under our system of constitutional government, the Legislative department is assigned the power to make and enact laws. The Executive department is charged with the execution or carrying out of the provisions of said laws. But the interpretation and application of said laws belong exclusively to the Judicial department. And this authority to interpret and apply the laws extends to the Constitution. Before the courts can determine whether a law is constitutional or not, it will have to interpret and ascertain the meaning not only of said law, but also of the pertinent portion of the Constitution in order to decide whether there

is a conflict between the two, because if there is, then the law will have to give way and has to be declared invalid and unconstitutional. 61

In Radiowealth Inc. v. Agregado, 62 this Court was constrained to rule on the authority of the Property Requisition Committee appointed by the President to pass upon the Court's requisitions for supplies. There, this Court was compelled to assert its own financial independence.
. . . the prerogatives of this Court which the Constitution secures against interference includes not only the powers to adjudicate causes but all things that are reasonably necessary for administration of justice. It is within its power, free from encroachment by the executive, to acquire books and other office equipment reasonably needed to the convenient transaction of its business. These implied, inherent, or incidental powers are as essential to the existence of the court as the powers specifically granted. Without the power to provide itself with appropriate instruments for the performance of its duties, the express powers with which the Constitution endows it would become useless. The court could not maintain its independence and dignity as the Constitution intends if the executive personally or through subordinate officials could determine for the court what it should have or use in the discharge of its functions, and when and how it should obtain them. 63

Thus, in the cited cases the Court deviated from its self-imposed policy of prudence and restraint, expressed in pronouncements of its distaste of cases which apparently cater to the ostensibly self-serving concerns of the Court or its individual members, and proceeded to resolve issues involving the interpretation of the Constitution and the independence of the judiciary. We can do no less in the present petitions. As was declared in Sanidad, 64 this Court in view of the paramount interests at stake and the need for immediate resolution of the controversy has to act a priori, not a posteriori, as it does now.

Having established the jurisdiction of this Court to decide the petitions, the justiciability of the issues raised, and the propriety of Court action on the petition, I proceed now to discuss the constitutionality of the House Rules on Impeachment. It is suggested that the term "initiate" in Sections 3 (1) and 3 (5), Article XI is used in the same sense, that is, the filing of the Articles of Impeachment by the House of Representatives to the Senate:
SEC. 3.(1)The House of Representatives shall have the exclusive power to initiate all cases of impeachment. xxx xxx xxx

(5)No impeachment proceedings shall be initiated against the same official more than once within a period of one year. [Emphasis supplied.]

A review of the history of Section 3 (1) shows that this is not so. The Constitution of the United States, after which the 1935 and subsequent Constitutions, as well as our system of government, were patterned, simply states:
5.The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment. [Sec. 3, Art. I.]

Note that the phrase "power to initiate all cases of impeachment" does not appear in the above provision. Rather, it uses the shorter clause "power of impeachment." Webster's Third New International Dictionary defines "impeach" as, "to bring an accusation (as of wrongdoing or impropriety) against" or to "charge with a crime or misdemeanor." Specifically, it means, to "charge (a public official) before a competent tribunal with misbehavior in office" or to "arraign or cite for official misconduct." "Initiate," on the other hand, is defined primarily as, "to begin or set going," or to "make a beginning of," or to "perform or facilitate the first actions, steps, or stages of." Contrast this with the merely slight difference between Section 3 (6), Article XI of the 1987 Philippine Constitution ("The Senate shall have the sole power to try and decide all cases of impeachment.") and Section 3.6, Article I of the U.S. Constitution ("The Senate shall have the sole power to try all impeachments."), the former adding only the word "decide." The original 1935 Constitution contemplated a unicameral legislature called National Assembly but, nevertheless, employed a two-tiered impeachment process. The "sole power of impeachment" was reposed on the Commission on Impeachment of the National Assembly, composed of twenty-one members of the Assembly, 65 and the "sole power to try all impeachments," on the National Assembly as a body, less those who belong to the Commission on Impeachment. The pertinent provisions of Article IX (Impeachment) of the original 1935 Constitution read:
SEC. 2.The Commission on Impeachment of the National Assembly, by a vote of two-thirds of its Members, shall have the sole power of impeachment. SEC. 3.The National Assembly shall have the sole power to try all impeachments. When sitting for that purpose the Members shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside. No person shall be convicted without the concurrence of three-fourths of all the Members who do not belong to the Commission on Impeachment.

The 1935 Constitution was amended in 1940. The 1940 amendment transformed the legislature from a unicameral to a bicameral body composed of a Senate and a House of Representatives. Like the U.S. Constitution, the 1935 Constitution, as amended, lodged the "power of impeachment" in the House of Representatives. This was a simple but complete grant of power. Just as simple and complete was the power to "try and decide" which rested in the Senate. If the impeachment process is juxtaposed against a criminal case setting, the structural change made the House the investigator and the proceeding before it akin to a preliminary investigation, while the Senate was transformed into a court and the proceedings before it a trial. This is the same structure under the 1987 Constitution. Under the 1973 Constitution, the country reverted to a unicameral legislature; hence, the need to spell out the specific phases of impeachment, i.e., "to initiate, try and decide," all of which were vested in the Batasang Pambansa. This was the first time that the term "initiate" appeared in constitutional provisions governing impeachment. Section 3, Article XIII thereof states:
The Batasang Pambansa shall have the exclusive power to initiate, try, and decide all cases of impeachment. Upon the filing of a verified complaint, the Batasang Pambansa may initiate impeachment by a vote of at least one-fifth of all its Members. No official shall be convicted without the concurrence of at least two-thirds of all the Members thereof. When the Batasang Pambansa sits in impeachment cases, its Members shall be on oath or affirmation.

Unfortunately, it seems that the 1987 Constitution has retained the same term, "initiate," used in the 1973 Constitution. The use of the term is improper and unnecessary. It is the source of the present confusion. Nevertheless, the intent is clear to vest the power to "impeach" in the House of Representatives. This is a much broader power that necessarily and inherently includes not only the power to "initiate" impeachment cases before the Senate, but to investigate complaints filed by any Member or any citizen, endorsed by any Member, against an impeachable official. The term "initiate" in Section 3 (1), Article XI should, therefore, be read as "impeach" and the manner in which it is used therein should be distinguished from its usage in Section 3(5) of the same Article. This conclusion is supported by the object to which the term relates in the different paragraphs of the same Section 3. Thus, Section 3 (1) speaks of initiating "cases of impeachment" while Section 3 (5) pertains to the initiation of "impeachment proceedings." "Cases," no doubt, refers to those filed before the Senate. Its use and its sense are consistent throughout Section 3. Thus, Section 3 (6) states, "The Senate shall have the sole power to decide all cases [not "proceedings"] of impeachment." Section 3(7) provides, "Judgment in cases [not "proceedings"] of impeachment shall not extend further than removal from office and disqualification to hold any office . . ."

It may be argued, albeit unsuccessfully, that Sections 16 and 17, Rule V of the House of Representatives Rules on Impeachment constitute its interpretation of the Constitution and is, therefore, entitled to great weight. A comparison of these Rules, which, incidentally were promulgated only recently by the Twelfth Congress, with the previous Rules adopted by the Eighth, Ninth, Tenth and Eleventh Congress demonstrates how little regard should be given to this most recent "interpretation." The old Rules simply reproduced Section 3 (5), Article XI of the Constitution, which is to say, that they employed a literal interpretation of the same provision, thus:
RULE V SEC. 14.Scope of Bar. No impeachment proceedings shall be initiated against the same official more than once within the period of one year.

The interpretation of the Twelfth Congress, however, is such a radical departure from previous interpretations that it cannot be accorded the same great weight normally due it. Depending on the mode of the filing of the complaint, the impeachment proceedings are "deemed" initiated only:
(1)on the day the Committee on Justice finds that the verified complaint and/or resolution against such official, as the case may be is sufficient in substance; or (2)on the date the House votes to overturn or affirm the finding of said Committee that the verified complaint and/or resolution, as the case may be, is not sufficient in substance; or (3)at the time of the filing of such verified complaint or resolution of impeachment with the Secretary General.

It is true that each Congress is not bound by the interpretation of the previous Congress, that it has the power to disregard the Rules of its predecessor and to adopt its own Rules to conform to what it may deem as the proper interpretation of the Constitution. Thus, in Osmea v. Pendatun, 66 the Court held that "the rules adopted by deliberative bodies are subject to revocation[,] modification or waiver at the pleasure of the body adopting them." The Court concedes the congressional power to interpret the Constitution in the promulgation of its Rules, but certainly not, as stated earlier, the congressional interpretation, which, in this case, is so dreadfully contrary, not only to the language of the provision, but also to the intent of the framers of the Constitution and to the provision's very philosophy. Many of the petitions refer to the Records of the Constitutional Commission, stressing statements of Commissioner Regalado Maambong that "the initiation starts from the filing of the complaint," and that it "is not the [House] body which initiates [the complaint]." The Court, having heard from Commissioner Maambong himself, acting as

amicus curiae, is persuaded by the argument and the point need not be belabored. Plainly, the mere filing of the complaint (or a resolution of impeachment) under Section 3(2) (or Section 3[4]) precludes the initiation of another impeachment proceeding against the same official within one year. The rationale behind the so-called time-bar rule cannot be overemphasized, however. The obvious philosophy of the bar is two-fold. The first is to prevent the harassment of the impeachable official, who shall be constrained to defend himself in such proceedings and, as a consequence, is detracted from his official functions. The second is to prevent Congress from being overwhelmed by its non-legislative chores to the detriment of its legislative duties. 67 The impugned House Rules on Impeachment defeats the very purpose of the time-bar rule because they allow the filing of an infinite number of complaints against a single impeachable official within a given year. Not until:

(1). . . the day the Committee on Justice finds that the verified complaint and/or resolution against such official, as the case may be, is sufficient in substance; or (2). . . the date the House votes to overturn or affirm the finding of said Committee that the verified complaint and/or resolution, as the case may be, is not sufficient in substance; or (3). . . the time of the filing of such verified complaint or resolution of impeachment with the Secretary General.

are the impeachment proceedings deemed initiated. Until then, the right of the impeachable official against harassment does not attach and is exposed to harassment by subsequent complaints. Until then, the House would be swamped with the task of resolving these complaints. Clearly, the Rules do not "effectively carry out the purpose of" Section 3, Article XI and, in fact, quite creatively killed not only the language but the spirit behind the constitutional proscription. Clearly, Sections 16 and 17, Rule V of the House Rules on Impeachment contravene Section 3(5), Article XI of the Constitution. They must be struck down. Consequently, the second impeachment complaint is barred pursuant to Section 3(4), Article XI of the Constitution. It is noteworthy that the above conclusion has been reached simply by taking into account the ordinary meaning of the words used in the constitutional provisions in point, as well as their rationale. Resort to the rule that the impeachment provisions should be given a narrow interpretation in relation to the goal of an independent judiciary need not be made even. 68

Nevertheless, this does not mean that the second impeachment complaint is forever barred; only that it should be dismissed without prejudice to its re-filing after one year from the filing of the first impeachment complaint. Indeed, this Court cannot deprive the House of the exclusive power of impeachment lodged in the House by the Constitution. In taking cognizance of this case, the Court does not do so out of empathy or loyalty for one of our Brethren. Nor does it do so out of enmity or loathing toward the Members of a co-equal branch, whom I still call and regard as my Brethren. The Court, in assuming jurisdiction over this case, to repeat, does so only out of duty, a duty reposed no less by the fundamental law. Fears that the Court's conclusion today would yield a constitutional crisis, that the present controversy would shake the judicial institution to its very foundations, I am confident, would not come to pass. Through one seemingly endless martial rule, two bloodless uprisings, three Constitutions and countless mini-revolts, no constitutional crisis erupted; the foundations of the Court did not shake. This is not because, in the clashes between the great, perhaps greater, Branches of Government, the Court is "Supreme" for it holds neither sword nor purse, and wields only a pen. Had the other Branches failed to do the Court's bidding, the Court would have been powerless to enforce it. The Court stands firm only because its foundations are grounded on law and logic and its moorings on justice and equity. It is a testament to the Filipino's respect for the rule of law that in the face of these "clashes," this Court's pronouncements have been heeded, however grudgingly at times. Should there be more "interesting" times ahead for the Filipino, I pray that they prove to be more of a blessing than a curse. ACCORDINGLY, concurring in the comprehensive and well-reasoned opinion of Justice Carpio-Morales, I vote to GRANT the petitions insofar as they seek the declaration of the unconstitutionality of the challenged provisions of the House Rules on Impeachment and the pronouncement that the second impeachment complaint is time-barred on the basis of Section 3(5), Article XI of the Constitution.
aA

EN BANC
[G.R. No. 122156. February 3, 1997.] MANILA PRINCE HOTEL, petitioner, vs. GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE COUNSEL, respondents. SYLLABUS 1.POLITICAL LAW; CONSTITUTION; DEFINED. A constitution is a system of fundamental laws for the governance and administration of a nation. It is supreme, imperious, absolute and unalterable except by the authority from which it emanates. It has been defined as the fundamental and paramount law of the nation. It prescribes the permanent framework of a system of government, assigns to the different departments their respective powers and duties, and establishes certain fixed principles on which government is founded. The fundamental conception in other words is that it is a supreme law to which all other laws must conform and in accordance with which all private rights must be determined and all public authority administered. 2.ID.; ID.; DEEMED WRITTEN IN EVERY STATUTE AND CONTRACT. Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the constitution that law or contract whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes is null and void and without any force and effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed written in every statute and contract. Adhering to the doctrine of constitutional supremacy, the subject constitutional provision is, as it should be, impliedly written in the bidding rules issued by respondent GSIS, lest the bidding rules be nullified for being violative of the Constitution. It is a basic principle in constitutional law that all laws and contracts must conform with the fundamental law of the land. Those which violate the Constitution lose their reason for being. 3.ID.; ID.; CONSIDERED SELF-EXECUTING RATHER THAN NON-SELFEXECUTING. In case of doubt, the Constitution should be considered self-executing rather than non-self-executing . . . Unless the contrary is clearly intended, the provisions of the Constitution should be considered self-executing, as a contrary rule would give the legislature discretion to determine when, or whether, they shall be effective. These provisions would be subordinated to the will of the lawmaking body, which could make

them entirely meaningless by simply refusing to pass the needed implementing statute. (Cruz, Isagani A., Constitutional Law, 1993 ed., pp. 8-10) 4.ID.; ID.; SELF-EXECUTING PROVISIONS; LEGISLATURE NOT PRECLUDED FROM ENACTING LAWS ENFORCING PROVISIONS. Quite apparently, Sec. 10, second par., of Art. XII is couched in such a way as not to make it appear that it is nonself-executing but simply for purposes of style. But, certainly, the legislature is not precluded from enacting further laws to enforce the constitutional provision so long as the contemplated statute squares with the Constitution. Minor details may be left to the legislature without the self-executing nature of constitutional provisions. The omission from a constitution of any express provision for a remedy for enforcing a right or liability is not necessarily an indication that it was not intended to be self-executing. The rule is that a self-executing provision of the constitution does not necessarily exhaust legislative power on the subject, but any legislation must be in harmony with the constitution, further the exercise of constitutional right and make it more available. Subsequent legislation however does not necessarily mean that the subject constitutional provision is not, by itself, fully enforceable. 5.ID.; ID.; ID.; A PROVISION MAY BE SELF-EXECUTING IN ONE PART AND NON-SELF-EXECUTING IN ANOTHER. Respondents also argue that the non-selfexecuting nature of Sec. 10, second par., of Art. XII is implied from the tenor of the first and third paragraphs of the same section which undoubtedly are not self-executing. The argument is flawed. If the first and third paragraphs are not self-executing because Congress is still to enact measures to encourage the formation and operation of enterprises fully owned by Filipinos, as in the first paragraph, and the State still needs legislation to regulate and exercise authority over foreign investments within its national jurisdiction, as in the third paragraph, then a fortiori, by the same logic, the second paragraph can only be self-executing as it does not by its language require any legislation in order to give preference to qualified Filipinos in the grant of rights, privileges and concessions covering the national economy and patrimony. A constitutional provision may be self-executing in one part and non-self-executing in another. 6.ID.; ID.; NATIONAL PATRIMONY; PROVISION ON PREFERENCE TO QUALIFIED FILIPINOS, SELF-EXECUTING. Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive command which is complete in itself and which needs no further guidelines or implementing laws or rules for its enforcement. From its very words the provision does not require any legislation to put it in operation. It is per se judicially enforceable. When our Constitution mandates that [i]n the grant of rights, privileges, and concessions covering national economy and patrimony, the State shall give preference to qualified Filipinos, it means just that qualified Filipinos shall be preferred. And when our Constitution declares that a right exists in certain specified circumstances an action may be maintained to enforce such right notwithstanding the absence of any legislation on the subject; consequently, if there is no statute especially

enacted to enforce such constitutional right, such right enforces itself by its own inherent potency and puissance and from which all legislations must take their bearings. Where there is a right there is a remedy. Ubi jus ibi remedium. 7.ID.; ID.; ID.; INCLUDES THE NATIONAL RESOURCES AND CULTURAL HERITAGE. When the Constitution speaks of national patrimony, it refers not only to the natural resources of the Philippines, as the Constitution could have very well used the term natural resources, but also to the cultural heritage of the Filipinos. 8.ID.; ID.; ID.; MANILA HOTEL CORPORATION, EMBRACED THEREIN; FILIPINO FIRST POLICY PROVISION, APPLICABLE IN SALES OF HOTEL STOCKS. For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and failures, loves and frustrations of the Filipinos; its existence is impressed with public interest; its own historicity associated with our struggle for sovereignty, independence and nationhood. Verily, Manila Hotel has become part of our national economy and patrimony. For sure, 51% of the equity of the MHC comes within the purview of the constitutional shelter for it comprises the majority and controlling stock, so that anyone who acquires or owns the 51% will have actual control and management of the hotel. In this instance, 51% of the MHC cannot be disassociated from the hotel and the land on which the hotel edifice stands. Consequently, we cannot sustain respondents' claim that the Filipino First Policy provision is not applicable since what is being sold is only 51% of the outstanding shares of the corporation, not the Hotel building nor the land upon which the building stands. 9.ID.; STATE; SALE BY THE GSIS OF 51% OF ITS SHARE IN MANILA HOTEL CORP., A STATE ACTION, SUBJECT TO CONSTITUTIONAL COMMAND. In constitutional jurisprudence, the acts of persons distinct from the government are considered "state action" covered by the Constitution (1) when the activity it engages in is a " public function", (2) when the government is so-significantly involved with the private actor as to make the government responsible for his action; and, (3) when the government has approved or authorized the action. It is evident that the act of respondent GSIS in selling 51% of its share in respondent MHC comes under the second and third categories of "state action." Without doubt therefore the transaction, although entered into by respondent GSIS, is in fact a transaction of the State and therefore subject to the constitutional command. 10.ID.; CONSTITUTION; WHEN THE CONSTITUTION ADDRESSES THE STATE, IT REFERS TO BOTH PEOPLE AND GOVERNMENT. When the Constitution addresses the State it refers not only to the people but also to the government as elements of the State. After all, government is composed of three (3) divisions of power legislative, executive and judicial. Accordingly, a constitutional mandate directed to the State is correspondingly directed to the three (3) branches of government. It is undeniable that in this case the subject constitutional injunction is addressed among others to the

Executive Department and respondent GSIS, a government instrumentality deriving its authority from the State. 11.ID.; ID.; NATIONAL PATRIMONY; PREFERENCE TO QUALIFIED FILIPINOS; SALE OF STOCKS OF MANILA HOTEL CORPORATION BY THE GSIS; FILIPINOS ALLOWED TO MATCH THE BID OF FOREIGN ENTITY. In the instant case, where a foreign firm submits the highest bid in a public bidding concerning the grant of rights, privileges and concessions covering the national economy and patrimony, thereby exceeding the bid of a Filipino, there is no question that the Filipino will have to be allowed to match the bid of the foreign entity. And if the Filipino matches the bid of a foreign firm the award should go to the Filipino. It must be so if we are to give life and meaning to the Filipino First Policy provision of the 1987 Constitution. For, while this may neither be expressly stated nor contemplated in the bidding rules, the constitutional fiat is omnipresent to be imply disregarded. To ignore it would be to sanction a perilous skirting of the basic law. 12.REMEDIAL LAW; ACTIONS; FOREIGN BIDDERS WITHOUT CAUSE OF ACTION AGAINST GSIS BEFORE ACCEPTANCE OF BID. The argument of respondents that petitioner is now estopped from questioning the sale to Renong Berhad since petitioner was well aware from the beginning that a foreigner could participate in the bidding is meritless. Undoubtedly, Filipinos and foreigners alike were invited to the bidding. But foreigners may be awarded the sale only if no Filipino qualifies, or if the qualified Filipino fails to match the highest bid tendered by the foreign entity. In the case before us, while petitioner was already preferred at the inception of the bidding because of the constitutional mandate, petitioner had not yet matched the bid offered by Renong Berhad. Thus it did not have the right or personality then to compel respondent GSIS to accept its earlier bid. Rightly, only after it had matched the bid of the foreign firm and the apparent disregard by respondent GSIS of petitioner's matching bid did the latter have a cause of action.

13.ID.; SPECIAL CIVIL ACTION, CERTIORARI; FAILURE OF THE GSIS TO EXECUTE CORRESPONDING DOCUMENTS WHERE PETITIONER HAD MATCHED THE BID PRICE BY FOREIGN BIDDER, A GRAVE ABUSE OF DISCRETION. Since petitioner has already matched the bid price tendered by Renong Berhad pursuant to the bidding rules, respondent GSIS is left with no alternative but to award to petitioner the block of shares of MHC and to execute the necessary agreements and documents to effect the sale in accordance not only with the bidding guidelines and procedures but with the Constitution as well. The refusal of respondent GSIS to execute the corresponding documents with petitioner as provided in the bidding rules after the latter has matched the bid of the Malaysian firm clearly constitutes grave abuse of discretion.

14.ID.; SUPREME COURT; DUTY BOUND TO MAKE SURE THAT CONTRACTS DO NOT VIOLATE THE CONSTITUTION OR THE LAWS. While it is no business of the Court to intervene in contracts of the kind referred to or set itself up as the judge of whether they are viable or attainable, it is its bounden duty to make sure that they do not violate the Constitution or the laws, or are not adopted or implemented with grave abuse of discretion amounting to lack or excess of jurisdiction. It will never shirk that duty, no matter how buffeted by winds of unfair and ill-informed criticism. Indeed, the Court will always defer to the Constitution in the proper governance of a free society; after all, there is nothing so sacrosanct in any economic policy as to draw itself beyond judicial review when the Constitution is involved. PADILLA, J., concurring opinion: 1.POLITICAL LAW; CONSTITUTION; PATRIMONY OF THE NATION, CONSTRUED. A study of the 1935 Constitution, where the concept of "national patrimony" originated, would show that its framers decided to adopt the even more comprehensive expression "Patrimony of the Nation" in the belief that the phrase encircles a concept embracing not only the natural resources of the country but practically everything that belongs to the Filipino people, the tangible and the material as well as the intangible and the spiritual assets and possessions of the people. It is to be noted that the framers did not stop with conservation. They knew that conservation alone does not spell progress; and that this may be achieved only through development as a correlative factor to assure to the people not only the exclusive ownership, but also the exclusive benefits of their national patrimony. Moreover, the concept of national patrimony has been viewed as referring not only to our rich natural resources but also to the cultural heritage of our race. There is no doubt in my mind that the Manila Hotel is very much a part of our national patrimony and, as such deserves constitutional protection as to who shall own it and benefit from its operation. This institution has played an important role in our nation's history, having been the venue of many a historical event, and serving as it did, and as it does, as the Philippine Guest House for visiting foreign heads of state, dignitaries, celebrities, and others. 2.ID.; ID.; MANILA HOTEL, PART OF OUR NATIONAL PATRIMONY. There is no doubt in my mind that the Manila Hotel is very much a part of our national patrimony and, as such, deserves constitutional protection as to who shall own it and benefit from its operation. This institution has played an important role in our nation's history, having been the venue of many a historical event, and serving as it did, and as it does, as the Philippine Guest House for visiting foreign heads of state, dignitaries, celebrities, and others. 3.ID.; ID.; PREFERENCE TO QUALIFIED FILIPINOS; APPLIED TO SALES OF SHARE OF STOCKS OF MANILA HOTEL. "Preference to qualified Filipinos," to be meaningful, must refer not only to things that are peripheral, collateral, or tangential. It

must touch and affect the very "heart of the existing order." In the field of public bidding in the acquisition of things that pertain to the national patrimony, preference to qualified Filipinos must allow a qualified Filipino to match or equal the higher bid of a nonFilipino; the preference shall not operate only when the bids of the qualified Filipino and the non-Filipino are equal in which case, the award should undisputedly be made to the qualified Filipino. The Constitutional preference should give the qualified Filipino an opportunity to match or equal the higher bid of the non-Filipino bidder if the preference of the qualified Filipino bidder is to be significant at all. While government 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 to our shores, yet we should not preclude ourselves from reserving to us Filipinos certain areas where our national identity, culture and heritage are involved. In the hotel industry, for instance, foreign investors have established themselves creditably, such as in the Shangri-La, the Nikko, the Peninsula, and Mandarin Hotels. This should not stop us from retaining 51% of the capital stock of the Manila Hotel Corporation in the hands of Filipinos. This would be in keeping with the intent of the Filipino people to preserve our national patrimony, including our historical and cultural heritage in the hands of Filipinos. VITUG, J., separate opinion: 1.POLITICAL LAW; CONSTITUTION; NATIONAL PATRIMONY; PROVISION GIVING PREFERENCE TO QUALIFIED FILIPINOS, SELF-EXECUTORY. The provision in our fundamental law which provides that "(i)n the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos" is self-executory. The provision verily does not need, although it can obviously be amplified or regulated by, an enabling law or a set of rules. 2.ID.; ID.; ID.; PATRIMONY INCLUDES CULTURAL HERITAGE OF THE COUNTRY; MANILA HOTEL, EMBRACED THEREIN. The term "patrimony" does not merely refer to the country's natural resources but also to its cultural heritage. A "historical landmark," to use the words of Mr. Justice Justo P. Torres, Jr., Manila Hotel has now indeed become part of Philippine heritage. 3.ADMINISTRATIVE LAW; GOVERNMENT SERVICE INSURANCE SYSTEM; SALE OF ITS SHARE IN MANILA HOTEL CORPORATION, AN ACT OF THE STATE; CONSTITUTIONAL REQUIREMENT SHOULD BE COMPLIED WITH. The act of the Government Service Insurance System ("GSIS"), a government entity which derives its authority from the State, in selling 51% of its share in MHC should be considered an act of the State subject to the Constitutional mandate. 4.POLITICAL LAW; CONSTITUTION; NATIONAL PATRIMONY; PREFERENCE TO QUALIFIED FILIPINOS; DOES NOT REFER TO ALLOWING QUALIFIED FILIPINOS TO MATCH FOREIGN BID. On the pivotal issue of the degree of

"preference to qualified Filipinos" I find it somewhat difficult to take the same path traversed by the forceful reasoning of Justice Puno. In the particular case before us, the only meaningful preference, it seems, would really be to allow the qualified Filipino to match the foreign bid for, as a practical matter, I cannot see any bid that literally calls for millions of dollars to be at par (to the last cent) with another. The magnitude of the bids is such that it becomes hardly possible for the competing bids to stand exactly "equal" which alone, under the dissenting view, could trigger the right of preference. MENDOZA, J., separate opinion: POLITICAL LAW; CONSTITUTION; NATIONAL PATRIMONY; PREFERENCE TO QUALIFIED FILIPINOS; FILIPINO BIDDERS SHOULD BE ALLOWED TO EQUAL BID OF FOREIGN FIRM IN SALE OF STOCKS OF MANILA HOTEL CORPORATION. I take the view that in the context of the present controversy the only way to enforce the constitutional mandate that "[i]n the grant of rights, privileges and concessions covering the national patrimony the State shall give preference to qualified Filipinos" is to allow petitioner Philippine corporation to equal the bid of the Malaysian firm Renong Berhad for the purchase of the controlling shares of stocks in the Manila Hotel Corporation. Indeed, it is the only way a qualified Filipino or Philippine corporation can be given preference in the enjoyment of a right, privilege or concession given by the State, by favoring it over a foreign national or corporation. Under the rules on public bidding of the Government Service and Insurance System, if petitioner and the Malaysian firm had offered the same price per share, "priority [would be given] to the bidder seeking the larger ownership interest in MHC," so that if petitioner bid for more shares, it would be preferred to the Malaysian corporation for that reason and not because it is a Philippine corporation. Consequently, it is only in cases like the present one, where an alien corporation is the highest bidder, that preferential treatment of the Philippine corporation is mandated not by declaring it winner but by allowing it "to match the highest bid in terms of price per share" before it is awarded the shares of stocks. That, to me, is what "preference to qualified Filipinos" means in the context of this case by favoring Filipinos whenever they are at a disadvantage vis-a-vis foreigners. TORRES, JR., J., separate opinion: POLITICAL LAW; CONSTITUTION; PATRIMONY OF THE NATION; MANILA HOTEL, EMBRACED WITHIN THE MEANING THEREOF; SALE OF ITS STOCKS SHOULD BE LIMITED TO QUALIFIED FILIPINOS. Section 10, Article XII of the 1987 Constitution should be read in conjunction with Article II of the same Constitution pertaining to "Declaration of Principles and State Policies" which ordain "The State shall develop a self-reliant and independent national economy, effectively controlled by Filipinos." (Sec. 19), Interestingly, the matter of giving preference to "qualified Filipinos" was one of the highlights in the 1987 Constitution Commission proceedings. The nationalistic provisions of the 1987 Constitution reflect the history and spirit of the

Malolos Constitution of 1898, the 1935 Constitution and the 1973 Constitution. I subscribe to the view that history, culture, heritage, and tradition are not legislated and is the product of events, customs, usages and practices. It is actually a product of growth and acceptance by the collective mores of a race. It is the spirit and soul of a people. 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) which shaped our history for almost 84 years. The history of the Manila Hotel should not be placed in the auction block of a purely business transaction, where profit subverts the cherished historical values of our people. The Filipino should be first under his Constitution and in his own land.

PUNO, J., dissenting opinion: 1.POLITICAL LAW; CONSTITUTION; AS A RULE PROVISIONS THEREOF ARE SELF-EXECUTING. A Constitution provides the guiding policies and principles upon which is built the substantial foundation and general framework of the law and government. As a rule, its provisions are deemed self-executing and can be enforced without further legislative action. Some of its provisions, however, can be implemented only through appropriate laws enacted by the Legislature, hence not self-executing. Courts as a rule consider the provisions of the Constitution as self-executing, rather than as requiring future legislation for their enforcement. 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. Suffused with wisdom of the ages is the unyielding rule that legislative actions may give breath to constitutional rights but congressional inaction should not suffocate them. 2.ID.; ID.; PROVISIONS ARE NOT SELF-EXECUTING WHERE IT MERELY ANNOUNCES A POLICY AND EMPOWERS THE LEGISLATURE TO ENACT LAWS TO CARRY THE POLICY INTO EFFECT. Contrariwise, case law lays down the rule that a constitutional provision is not self-executing where it merely announces a policy and its language empowers the Legislature to prescribe the means by which the policy shall be carried into effect. 3.ID.; ID.; FIRST PARAGRAPH OF SECTION 10, ARTICLE 12 NOT SELFEXECUTING. The first paragraph directs Congress to reserve certain areas of investments in the country to Filipino citizens or to corporations sixty per cent of whose capital stock is owned by Filipinos. It further commands Congress to enact laws that will encourage the formation and operation of one hundred percent Filipino-owned enterprises. In checkered contrast, the second paragraph orders the entire State to give preference to qualified Filipinos in the grant of rights and privileges covering the national economy and patrimony. The third paragraph also directs the State to regulate foreign

investments in line with our national goals and well-set priorities. The first paragraph of Section 10 is not self-executing. By its express text, there is a categorical command for Congress to enact laws restricting foreign ownership in certain areas of investments in the country and to encourage the formation and operation of wholly-owned Filipino enterprises. 4.ID.; ID.; NATIONAL PATRIMONY; PREFERENCE TO QUALIFIED FILIPINOS UNDER PARAGRAPHS 2 AND 3 OF SECTION 10, ARTICLE 12, SELFEXECUTING. The second and third paragraphs of Section 10 are different. They are directed to the State and not to Congress alone which is but one of the three great branches of our government. Their coverage is also broader for they cover "the national economy and patrimony" and "foreign investments within [the] national jurisdiction" and not merely "certain areas of investments." Beyond debate, they cannot be read as granting Congress the exclusive power to implement by law the policy of giving preference to qualified Filipinos in the conferral of rights and privileges covering our national economy and patrimony. Their language does not suggest that any of the State agency or instrumentality has the privilege 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. 5.ID.; ID.; ID.; MANILA HOTEL CORPORATION, PART OF THE NATIONAL PATRIMONY. The second issue is whether the sale of a majority of the stocks of the Manila Hotel Corporation involves the disposition of part of our national patrimony. The records of the Constitutional Commission show that the Commissioners entertained the same view as to its meaning. According to Commissioner Nolledo, "patrimony" refers not only to our rich natural resources but also to the cultural heritage of our race. By this yardstick, the sale of Manila Hotel falls within the coverage of the constitutional provision giving preferential treatment to qualified Filipinos in the grant of rights involving our national patrimony. 6.ID.; STATE; GSIS, EMBRACED WITHIN THE MEANING THEREOF. The third issue is whether the constitutional command to the State includes the respondent GSIS. A look at its charter will reveal that GSIS is a government-owned and controlled corporation that administers funds that come from the monthly contributions of government employees and the government. The funds are held in trust for a distinct purpose which cannot be disposed of indifferently. They are to be used to finance the retirement, disability and life insurance benefits of the employees and the administrative and operational expenses of the GSIS. Excess funds, however, are allowed to be invested in business and other ventures for the benefit of the employees. The GSIS is not a pure private corporation. It is essentially a public corporation created by Congress and granted an original charter to serve a public purpose. It is subject to the jurisdictions of the Civil Service Commission and the Commission on Audit. As a state-owned and controlled corporation, it is skin-bound to adhere to the policies spelled out in the Constitution

especially those designed to promote the general welfare of the people. One of these policies is the Filipino First policy which the people elevated as a constitutional command. 7.ID.; CONSTITUTION; PROVISIONS THEREOF DEEMED INCLUDED IN ALL LEGISLATIONS AND ALL STATE ACTIONS. The constitutional command to enforce the Filipino First policy is addressed to the State and not to Congress alone. Hence, the word "laws" should not be understood as limited to legislations but all state actions which include applicable rules and regulations adopted by agencies and instrumentalities of the State in the exercise of their rule-making power. 8.ID.; ID.; NATIONAL PATRIMONY; PREFERENCE TO QUALIFIED FILIPINOS; STATE NOT PROHIBITED FROM GRANTING RIGHTS TO FOREIGN FIRM IN THE ABSENCE OF QUALIFIED FILIPINOS. In 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. 9.ID.; ID.; ID.; ID.; CASE AT BAR. The right of preference of petitioner arises only if it tied the bid of Renong Berhad. In that instance, all things stand equal, and petitioner, as a qualified Filipino bidder, should be preferred. It is with deep regret that I cannot subscribe to the view that petitioner 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-out a thousand times, they can not justify the claimed right. Under the rules, the right to match the highest bid arises only "if for any reason, the highest bidder cannot be awarded the block of shares . . . ." No reason has arisen that will prevent the award to Renong Berhad. It deserves the award as a matter of right for the rules clearly did not give to the petitioner as a qualified Filipino the privilege to match the higher bid of a foreigner. What the rules did not grant, petitioner cannot demand. Our sympathies may be with petitioner but the court has no power to extend the latitude and longitude of the right of preference as defined by the rules. 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 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 the Court can come in and strike down the denial as unconstitutional. 10.REMEDIAL LAW; ACTIONS; ESTOPPEL; PARTY ESTOPPED FROM ASSAILING THE WINNING BID OF FOREIGN FIRM FROM BEING AWARE OF THE RULES AND REGULATIONS OF THE BIDDINGS IT AGREED TO RESPECT. I submit that petitioner is estopped from assailing the winning bid 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 qualified Filipino bidder can match the winning bid after submitting an inferior bid. It knew that the bid was open to foreigners and that foreigners qualified even during the first bidding. Petitioner cannot be allowed to repudiate the rules

which it agreed to respect. It cannot be allowed to obey the rules when it wins and disregard them when it loses. If sustained, petitioners' stance will wreak havoc on the essence of bidding. PANGANIBAN, J., separate dissenting opinion: POLITICAL LAW; CONSTITUTION; PATRIMONY OF THE NATION; PREFERENCE TO QUALIFIED FILIPINOS; LOSING FILIPINO NOT GIVEN RIGHT TO EQUAL THE HIGHEST FOREIGN BID. 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! Aside from being prohibited by the Constitution, such judicial legislation is short-sighted and, viewed properly, gravely prejudicial to long-term Filipino interests. 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.

DECISION

BELLOSILLO, J :
p

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

the 51% shares form part of the national economy and patrimony covered by the protective mantle of the Constitution. The controversy arose when respondent Government Service Insurance System (GSIS), pursuant to the privatization program of the Philippine Government under Proclamation No. 50 dated 8 December 1986, decided to sell through public bidding 30% to 51% of the issued and outstanding shares of respondent MHC. The winning bidder, or the eventual "strategic partner," is to provide management expertise and/or an international marketing/reservation system, and financial support to strengthen the profitability and performance of the Manila Hotel. 2 In a close bidding held on 18 September 1995 only two (2) bidders participated: petitioner Manila Prince Hotel Corporation, a Filipino corporation, which offered to buy 51% of the MHC or 15,300,000 shares at P41.58 per share, and Renong Berhad, a Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for the same number of shares at P44.00 per share, or P2.42 more than the bid of petitioner. Pertinent provisions of the bidding rules prepared by respondent GSIS state
I.EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC 1.The Highest Bidder must comply with the conditions set forth below by October 23, 1995 (reset to November 3, 1995) or the Highest Bidder will lose the right to purchase the Block of Shares and GSIS will instead offer the Block of Shares to the other Qualified Bidders: a.The Highest Bidder must negotiate and execute with the GSIS/MHC the Management Contract, International Marketing/Reservation System Contract or other type of contract specified by the Highest Bidder in its strategic plan for the Manila Hotel . . . . b.The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS . . . . K.DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the following conditions are met a.Execution of the necessary contracts with GSIS/MHC not later than October 23, 1995 (reset to November 3, 1995); and b.Requisite approvals from the GSIS/MHC and COP (Committee on Privatization)/ OGCC (Office of the Government Corporate Counsel) are obtained." 3

Pending the declaration of Renong Berhard as the winning bidder/strategic partner and the execution of the necessary contracts, petitioner in a letter to respondent GSIS dated 28 September 1995 matched the bid price of P44.00 per share tendered by Renong Berhad. 4 In a subsequent letter dated 10 October 1995 petitioner sent a manager's check issued by Philtrust Bank for Thirty-three Million Pesos (P33,000,000.00) as Bid Security to match the bid of the Malaysian Group, Messrs. Renong Berhad . . . . 5 which respondent GSIS refused to accept. On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the tender of the matching bid and that the sale of 51% of the MHC may be hastened by respondent GSIS and consummated with Renong Berhad, petitioner came to this Court on prohibition and mandamus. On 18 October 1995 the Court issued a temporary restraining order enjoining respondents from perfecting and consummating the sale to the Malaysian firm. On 10 September 1996 the instant case was accepted by the Court En Banc after it was referred to it by the First Division. The case was then set for oral arguments with former Chief Justice Enrique M. Fernando and Fr. Joaquin G. Bernas, S.J., as amici curiae. In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution and submits that the Manila Hotel has been identified with the Filipino nation and has practically become a historical monument which reflects the vibrancy of Philippine heritage and culture. It is a proud legacy of an earlier generation of Filipinos who believed in the nobility and sacredness of independence and its power and capacity to release the full potential of the Filipino people. To all intents and purposes, it has become a part of the national patrimony. 6 Petitioner also argues that since 51% of the shares of the MHC carries with it the ownership of the business of the hotel which is owned by respondent GSIS, a government-owned and controlled corporation, the hotel business of respondent GSIS being a part of the tourism industry is unquestionably a part of the national economy. Thus, any transaction involving 51% of the shares of stock of the MHC is clearly covered by the term national economy, to which Sec. 10, second par., Art. XII, 1987 Constitution, applies. 7 It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony and its business also unquestionably part of the national economy petitioner should be preferred after it has matched the bid offer of the Malaysian firm. For the bidding rules mandate that if for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of price per share. 8 Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 1987 Constitution is merely a statement of principle and policy since it is not a self-executing

provision and requires implementing legislation(s). . . . Thus, for the said provision to operate, there must be existing laws "to lay down conditions under which business may be done." 9 Second, granting that this provision is self-executing, Manila Hotel does not fall under the term national patrimony which only refers to lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna and all marine wealth in its territorial sea, and exclusive marine zone as cited in the first and second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to respondents, while petitioner speaks of the guests who have slept in the hotel and the events that have transpired therein which make the hotel historic, these alone do not make the hotel fall under the patrimony of the nation. What is more, the mandate of the Constitution is addressed to the State, not to respondent GSIS which possesses a personality of its own separate and distinct from the Philippines as a State.
lexlib

Third, granting that the Manila Hotel forms part of the national patrimony, the constitutional provision invoked is still inapplicable since what is being sold is only 51% of the outstanding shares of the corporation, not the hotel building nor the land upon which the building stands. Certainly, 51% of the equity of the MHC cannot be considered part of the national patrimony. Moreover, if the disposition of the shares of the MHC is really contrary to the Constitution, petitioner should have questioned it right from the beginning and not after it had lost in the bidding. Fourth, the reliance by petitioner on par. V., subpar. J. 1, of the bidding rules which provides that if for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of price per share, is misplaced. Respondents postulate that the privilege of submitting a matching bid has not yet arisen since it only takes place if for any reason, the Highest Bidder cannot be awarded the Block of Shares. Thus the submission by petitioner of a matching bid is premature since Renong Berhad could still very well be awarded the block of shares and the condition giving rise to the exercise of the privilege to submit a matching bid had not yet taken place. Finally, the prayer for prohibition grounded on grave abuse of discretion should fail since respondent GSIS did not exercise its discretion in a capricious, whimsical manner, and if ever it did abuse its discretion it was not so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law. Similarly, the petition for mandamus should fail as petitioner has no clear legal right to what it demands and respondents do not have an imperative duty to perform the act required of them by petitioner.

We now resolve. A constitution is a system of fundamental laws for the governance and administration of a nation. It is supreme, imperious, absolute and unalterable except by the authority from which it emanates. It has been defined as the fundamental and paramount law of the nation. 10 It prescribes the permanent framework of a system of government, assigns to the different departments their respective powers and duties, and establishes certain fixed principles on which government is founded. The fundamental conception in other words is that it is a supreme law to which all other laws must conform and in accordance with which all private rights must be determined and all public authority administered. 11 Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the constitution that law or contract whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes is null and void and without any force and effect. Thus, since the Constitution is the fundamental paramount and supreme law of the nation, it is deemed written in every statute and contract.

Admittedly, some constitutions are merely declarations of policies and principles. Their provisions command the legislature to enact laws and carry out the purposes of the framers who merely establish an outline of government providing for the different departments of the governmental machinery and securing certain fundamental and inalienable rights of citizens. 12 A provision which lays down a general principle, such as those found in Art. II of the 1987 Constitution, is usually not self-executing. But a provision which is complete in itself and becomes operative without the aid of supplementary or enabling legislation, or that which supplies sufficient rule by means of which the right it grants may be enjoyed or protected, is self-executing. Thus a constitutional provision is self-executing if the nature and extent of the right conferred and the liability imposed are fixed by the constitution itself, so that they can be determined by an examination and construction of its terms, and there is no language indicating that the subject is referred to the legislature for action. 13 As against constitutions of the past, modern constitutions have been generally drafted upon a different principle and have often become in effect extensive codes of laws intended to operate directly upon the people in a manner similar to that of statutory enactments, and the function of constitutional conventions has evolved into one more like that of a legislative body. Hence, unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the presumption now is that all provisions of the constitution are self-executing. If the constitutional provisions are treated as requiring legislation instead of self-executing, the legislature would have the power to ignore and practically nullify the mandate of the fundamental law. 14 This can be cataclysmic. That is why the prevailing view is, as it has always been, that

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

Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly not self-executing, as they quote from discussions on the floor of the 1986 Constitutional Commission
MR. RODRIGO. Madam President, I am asking this question as the Chairman of the Committee on Style. If the wording of "PREFERENCE" is given to "QUALIFIED FILIPINOS," can it be understood as a preference to qualified Filipinos vis-a-vis Filipinos who are not qualified. So, why do we not make it clear? To qualified Filipinos as against aliens? THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it to remove the word "QUALIFIED?" MR. RODRIGO. No, no, but say definitely "TO QUALIFIED FILIPINOS" as against whom? As against aliens or over aliens? MR. NOLLEDO. Madam President, I think that is understood. We use the word "QUALIFIED" because the existing laws or prospective laws will always lay down conditions under which business may be done. For example, qualifications on capital, qualifications on the setting up of other financial structures, et cetera (italics supplied by respondents). MR RODRIGO. It is just a matter of style. MR. NOLLEDO. Yes. 16

Quite apparently, Sec. 10, second par., of Art. XII is couched in such a way as not to make it appear that it is non-self-executing but simply for purposes of style. But, certainly, the legislature is not precluded from enacting further laws to enforce the constitutional provision so long as the contemplated statute squares with the Constitution. Minor details may be left to the legislature without the self-executing nature of constitutional provisions. In self-executing constitutional provisions, the legislature may still enact legislation to facilitate the exercise of powers directly granted by the constitution, further the operation of such a provision, prescribe a practice to be used for its enforcement, provide a convenient remedy for the protection of the rights secured or the determination thereof, or place reasonable safeguards around the exercise of the right. The mere fact that legislation may supplement and add to or prescribe a penalty for the violation of a selfexecuting constitutional provision does not render such a provision ineffective in the absence of such legislation. The omission from a constitution of any express provision for a remedy for enforcing a right or liability is not necessarily an indication that it was not intended to be self-executing. The rule is that a self-executing provision of the constitution does not necessarily exhaust legislative power on the subject, but any legislation must be in harmony with the constitution, further the exercise of constitutional right and make it more available. 17 Subsequent legislation however does not necessarily mean that the subject constitutional provision is not, by itself, fully enforceable. Respondents also argue that the non-self-executing nature of Sec. 10, second par., of Art. XII is implied from the tenor of the first and third paragraphs of the same section which undoubtedly are not self-executing. 18 The argument is flawed. If the first and third paragraphs are not self-executing because Congress is still to enact measures to encourage the formation and operation of enterprises fully owned by Filipinos, as in the first paragraph, and the State still needs legislation to regulate and exercise authority over foreign investments within its national jurisdiction, as in the third paragraph, then a fortiori, by the same logic, the second paragraph can only be self-executing as it does not by its language require any legislation in order to give preference to qualified Filipinos in the grant of rights, privileges and concessions covering the national economy and patrimony. A constitutional provision may be self-executing in one part and non-selfexecuting in another. 19 Even the cases cited by respondents holding that certain constitutional provisions are merely statements of principles and policies, which are basically not self-executing and only placed in the Constitution as moral incentives to legislation, not as judicially enforceable rights are simply not in point. Basco v. Philippine Amusements and Gaming Corporation 20 speaks of constitutional provisions on personal dignity, 21 the sanctity of family life, 22 the vital role of the youth in nation-building, 23 the promotion of social justice, 24 and the values of education. 25 Tolentino v. Secretary of Finance 26 refers to constitutional provisions on social justice and human rights 27 and on education. 28

Lastly, Kilosbayan, Inc. v. Morato 29 cites provisions on the promotion of general welfare, 30 the sanctity of family life, 31 the vital role of the youth in nation-building 32 and the promotion of total human liberation and development. 33 A reading of these provisions indeed clearly shows that they are not judicially enforceable constitutional rights but merely guidelines for legislation. The very terms of the provisions manifest that they are only principles upon which legislations must be based. Res ipsa loquitur. On the other hand, Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive command which is complete in itself and which needs no further guidelines or implementing laws or rules for its enforcement. From its very words the provision does not require any legislation to put it in operation. It is per se judicially enforceable. When our Constitution mandates that [i]n the grant of rights, privileges, and concessions covering national economy and patrimony, the State shall give preference to qualified Filipinos, it means just that qualified Filipinos shall be preferred. And when our Constitution declares that a right exists in certain specified circumstances an action may be maintained to enforce such right notwithstanding the absence of any legislation on the subject; consequently, if there is no statute especially enacted to enforce such constitutional right, such right enforces itself by its own inherent potency and puissance, and from which all legislations must take their bearings. Where there is a right there is a remedy. Ubi jus ibi remedium. As regards our national patrimony, a member of the 1986 Constitutional Commission 34 explains
The patrimony of the Nation that should be conserved and developed refers not only to our rich natural resources but also to the cultural heritage of our race. It also refers to our intelligence in arts, sciences and letters. Therefore, we should develop not only our lands, forests, mines and other natural resources but also the mental ability or faculty of our people.

We agree. In its plain and ordinary meaning, the term patrimony pertains to heritage. 35 When the Constitution speaks of national patrimony, it refers not only to the natural resources of the Philippines, as the Constitution could have very well used the term natural resources, but also to the cultural heritage of the Filipinos. Manila Hotel has become a landmark a living testimonial of Philippine heritage. While it was restrictively an American hotel when it first opened in 1912, it immediately evolved to be truly Filipino. Formerly a concourse for the elite, it has since then become the venue of various significant events which have shaped Philippine history. It was called the Cultural Center of the 1930's. It was the site of the festivities during the inauguration of the Philippine Commonwealth. Dubbed as the Official Guest House of the Philippine Government it plays host to dignitaries and official visitors who are accorded the traditional Philippine hospitality. 36

The history of the hotel has been chronicled in the book The Manila Hotel: The Heart and Memory of a City. 37 During World War II the hotel was converted by the Japanese Military Administration into a military headquarters. When the American forces returned to recapture Manila the hotel was selected by the Japanese together with Intramuros as the two (2) places for their final stand. Thereafter, in the 1950's and 1960's, the hotel became the center of political activities, playing host to almost every political convention. In 1970 the hotel reopened after a renovation and reaped numerous international recognitions, an acknowledgment of the Filipino talent and ingenuity. In 1986 the hotel was the site of a failed coup d'etat where an aspirant for vice-president was "proclaimed" President of the Philippine Republic. For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and failures, loves and frustrations of the Filipinos; its existence is impressed with public interest; its own historicity associated with our struggle for sovereignty, independence and nationhood. Verily, Manila Hotel has become part of our national economy and patrimony. For sure, 51% of the equity of the MHC comes within the purview of the constitutional shelter for it comprises the majority and controlling stock, so that anyone who acquires or owns the 51% will have actual control and management of the hotel. In this instance, 51% of the MHC cannot be disassociated from the hotel and the land on which the hotel edifice stands. Consequently, we cannot sustain respondents' claim that the Filipino First Policy provision is not applicable since what is being sold is only 51% of the outstanding shares of the corporation, not the Hotel building nor the land upon which the building stands. 38 The argument is pure sophistry. The term qualified Filipinos as used in our Constitution also includes corporations at least 60% of which is owned by Filipinos. This is very clear from the proceedings of the 1986 Constitutional Commission
THE PRESIDENT. Commissioner Davide is recognized. MR. DAVIDE. I would like to introduce an amendment to the Nolledo amendment. And the amendment would consist in substituting the words "QUALIFIED FILIPINOS" with the following: "CITIZENS OF THE PHILIPPINES OR CORPORATIONS OR ASSOCIATIONS WHOSE CAPITAL OR CONTROLLING STOCK IS WHOLLY OWNED BY SUCH CITIZENS." xxx xxx xxx

MR. MONSOD. Madam President, apparently the proponent is agreeable, but we have to raise a question. Suppose it is a corporation that is 80-percent Filipino, do we not give it preference? MR. DAVIDE. The Nolledo amendment would refer to an individual Filipino. What about a corporation wholly owned by Filipino citizens? MR. MONSOD. At least 60 percent, Madam President. MR. DAVIDE. Is that the intention? MR MONSOD. Yes, because, in fact, we would be limiting it if we say that the preference should only be 100-percent Filipino. MR. DAVIDE. I want to get that meaning clear because "QUALIFIED FILIPINOS" may refer only to individuals and not to juridical personalities or entities. MR. MONSOD. We agree, Madam President. 39 xxx xxx xxx MR. RODRIGO. Before we vote, may I request that the amendment be read again. MR. NOLLEDO. The amendment will read: "IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS." And the word "Filipinos" here, as intended by the proponents, will include not only

individual Filipinos but also Filipino-controlled entities or entities fullycontrolled by Filipinos. 40 The phrase preference to qualified Filipinos was explained thus MR. FOZ. Madam President, I would like to request Commissioner Nolledo to please restate his amendment so that I can ask a question. MR. NOLLEDO. "IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS." MR. FOZ. In connection with that amendment, if a foreign enterprise is qualified and a Filipino enterprise is also qualified, will the Filipino enterprise still be given a preference? MR. NOLLEDO. Obviously. MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino enterprise, will the Filipino still be preferred? MR. NOLLEDO. The answer is "yes." MR. FOZ. Thank you. 41

Expounding further on the Filipino First Policy provision Commissioner Nolledo continues
MR NOLLEDO. Yes, Madam President. Instead of "MUST," it will be "SHALL THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS."

This embodies the so-called "Filipino First" policy. That means that Filipinos should be given preference in the grant of concessions, privileges and rights covering the national patrimony. 42

The exchange of views in the sessions of the Constitutional Commission regarding the subject provision was still further clarified by Commissioner Nolledo 43
"Paragraph 2 of Section 10 explicitly mandates the "Pro-Filipino" bias in all economic concerns. It is better known as the FILIPINO FIRST Policy. . . . This provision was never found in previous Constitutions. . . . The term "qualified Filipinos" simply means that preference shall be given to those citizens who can make a viable contribution to the common good, because of credible competence and efficiency. It certainly does NOT mandate the pampering and preferential treatment to Filipino citizens or organizations that are incompetent or inefficient, since such an indiscriminate preference would be counterproductive and inimical to the common good. In the granting of economic rights, privileges, and concessions, when a choice has to be made between a "qualified foreigner" and a "qualified Filipino," the latter shall be chosen over the former."

Lastly, the word qualified is also determinable. Petitioner was so considered by respondent GSIS and selected as one of the qualified bidders. It was pre-qualified by respondent GSIS in accordance with its own guidelines so that the sole inference here is that petitioner has been found to be possessed of proven management expertise in the hotel industry, or it has significant equity ownership in another hotel company, or it has an overall management and marketing proficiency to successfully operate the Manila Hotel. 44 The penchant to try to whittle away the mandate of the Constitution by arguing that the subject provision is not self-executory and requires implementing legislation is quite disturbing. The attempt to violate a clear constitutional provision by the government itself is only too distressing. To adopt such a line of reasoning is to renounce the duty to ensure faithfulness to the Constitution. For, even some of the provisions of the Constitution which evidently need implementing legislation have juridical life of their own and can be the source of a judicial remedy. We cannot simply afford the government a defense that arises out of the failure to enact further enabling, implementing or guiding legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J., on constitutional government is apt
The executive department has a constitutional duty to implement laws, including the Constitution, even before Congress acts provided that there are discoverable legal standards for executive action. When the executive acts, it must be guided by its own understanding of the constitutional command and of

applicable laws. The responsibility for reading and understanding the Constitution and the laws is not the sole prerogative of Congress. If it were, the executive would have to ask Congress, or perhaps the Court, for an interpretation every time the executive is confronted by a constitutional command. That is not how constitutional government operates. 45

Respondents further argue that the constitutional provision is addressed to the State, not to respondent GSIS which by itself possesses a separate and distinct personality. This argument again is at best specious. It is undisputed that the sale of 51% of the MHC could only be carried out with the prior approval of the State acting through respondent Committee on Privatization. As correctly pointed out by Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of the assets of respondents GSIS and MHC a "state action." In constitutional jurisprudence, the acts of persons distinct from the government are considered "state action" covered by the Constitution (1) when the activity it engages in is a "public function;" (2) when the government is so-significantly involved with the private actor as to make the government responsible for his action; and, (3) when the government has approved or authorized the action. It is evident that the act of respondent GSIS in selling 51% of its share in respondent MHC comes under the second and third categories of "state action." Without doubt therefore the transaction, although entered into by respondent GSIS, is in fact a transaction of the State and therefore subject to the constitutional command. 46 When the Constitution addresses the State it refers not only to the people but also to the government as elements of the State. After all, government is composed of three (3) divisions of power legislative, executive and judicial. Accordingly, a constitutional mandate directed to the State is correspondingly directed to the three (3) branches of government. It is undeniable that in this case the subject constitutional injunction is addressed among others to the Executive Department and respondent GSIS, a government instrumentality deriving its authority from the State. It should be stressed that while the Malaysian firm offered the higher bid it is not yet the winning bidder. The bidding rules expressly provide that the highest bidder shall only be declared the winning bidder after it has negotiated and executed the necessary contracts, and secured the requisite approvals. Since the Filipino First Policy provision of the Constitution bestows preference on qualified Filipinos the mere tending of the highest bid is not an assurance that the highest bidder will be declared the winning bidder. Resultantly, respondents are not bound to make the award yet, nor are they under obligation to enter into one with the highest bidder. For in choosing the awardee respondents are mandated to abide by the dictates of the 1987 Constitution the provisions of which are presumed to be known to all the bidders and other interested parties.

Adhering to the doctrine of constitutional supremacy, the subject constitutional provision is, as it should be, impliedly written in the bidding rules issued by respondent GSIS, lest the bidding rules be nullified for being violative of the Constitution. It is a basic principle in constitutional law that all laws and contracts must conform with the fundamental law of the land. Those which violate the Constitution lose their reason for being. Paragraph V. J. 1 of the bidding rules provides that [i]f for any reason the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of price per share. 47 Certainly, the constitutional mandate itself is reason enough not to award the block of shares immediately to the foreign bidder notwithstanding its submission of a higher, or even the highest, bid. In fact, we cannot conceive of a stronger reason than the constitutional injunction itself. In the instant case, where a foreign firm submits the highest bid in a public bidding concerning the grant of rights, privileges and concessions covering the national economy and patrimony, thereby exceeding the bid of a Filipino, there is no question that the Filipino will have to be allowed to match the bid of the foreign entity. And if the Filipino matches the bid of a foreign firm the award should go to the Filipino. It must be so if we are to give life and meaning to the Filipino First Policy provision of the 1987 Constitution. For, while this may neither be expressly stated nor contemplated in the bidding rules, the constitutional fiat is omnipresent to be simply disregarded. To ignore it would be to sanction a perilous skirting of the basic law. This Court does not discount the apprehension that this policy may discourage foreign investors. But the Constitution and laws of the Philippines are understood to be always open to public scrutiny. These are given factors which investors must consider when venturing into business in a foreign jurisdiction. Any person therefore desiring to do business in the Philippines or with any of its agencies or instrumentalities is presumed to know his rights and obligations under the Constitution and the laws of the forum The argument of respondents that petitioner is now estopped from questioning the sale to Renong Berhad since petitioner was well aware from the beginning that a foreigner could participate in the bidding is meritless. Undoubtedly, Filipinos and foreigners alike were invited to the bidding. But foreigners may be awarded the sale only if no Filipino qualifies, or if the qualified Filipino fails to match the highest bid tendered by the foreign entity. In the case before us, while petitioner was already preferred at the inception of the bidding because of the constitutional mandate, petitioner had not yet matched the bid offered by Renong Berhad. Thus it did not have the right or personality then to compel respondent GSIS to accept its earlier bid. Rightly, only after it had matched the bid of the foreign firm and the apparent disregard by respondent GSIS of petitioner's matching bid did the latter have a cause of action.

Besides, there is no time frame for invoking the constitutional safeguard unless perhaps the award has been finally made. To insist on selling the Manila Hotel to foreigners when there is a Filipino group willing to match the bid of the foreign group is to insist that government be treated as any other ordinary market player, and bound by its mistakes or gross errors of judgment, regardless of the consequences to the Filipino people. The miscomprehension of the Constitution is regrettable. Thus we would rather remedy the indiscretion while there is still an opportunity to do so than let the government develop the habit of forgetting that the Constitution lays down the basic conditions and parameters for its actions. Since petitioner has already matched the bid price tendered by Renong Berhad pursuant to the bidding rules, respondent GSIS is left with no alternative but to award to petitioner the block of shares of MHC and to execute the necessary agreements and documents to effect the sale in accordance not only with the bidding guidelines and procedures but with the Constitution as well. The refusal of respondent GSIS to execute the corresponding documents with petitioner as provided in the bidding rules after the latter has matched the bid of the Malaysian firm clearly constitutes grave abuse of discretion. The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987 Constitution not merely to be used as a guideline for future legislation but primarily to be enforced; so must it be enforced. This Court as the ultimate guardian of the Constitution will never shun, under any reasonable circumstance, the duty of upholding the majesty of the Constitution which it is tasked to defend. It is worth emphasizing that it is not the intention of this Court to impede and diminish, much less undermine, the influx of foreign investments. Far from it, the Court encourages and welcomes more business opportunities but avowedly sanctions the preference for Filipinos whenever such preference is ordained by the Constitution. The position of the Court on this matter could have not been more appropriately articulated by Chief Justice Narvasa
As scrupulously as it has tried to observe that it is not its function to substitute its judgment for that of the legislature or the executive about the wisdom and feasibility of legislation economic in nature, the Supreme Court has not been spared criticism for decisions perceived as obstacles to economic progress and development . . . in connection with a temporary injunction issued by the Court's First Division against the sale of the Manila Hotel to a Malaysian Firm and its partner, certain statements were published in a major daily to the effect that that injunction "again demonstrates that the Philippine legal system can be a major obstacle to doing business here." Let it be stated for the record once again that while it is no business of the Court to intervene in contracts of the kind referred to or set itself up as the judge of whether they are viable or attainable, it is its bounden duty to make sure that they do not violate the Constitution or the laws, or are not adopted or implemented with grave abuse of discretion amounting to lack or excess of

jurisdiction. It will never shirk that duty, no matter how buffeted by winds of unfair and ill-informed criticism. 48

Privatization of a business asset for purposes of enhancing its business viability and preventing further losses, regardless of the character of the asset, should not take precedence over non-material values. A commercial, nay even a budgetary, objective should not be pursued at the expense of national pride and dignity. For the Constitution enshrines higher and nobler non-material values. Indeed, the Court will always defer to the Constitution in the proper governance of a free society; after all, there is nothing so sacrosanct in any economic policy as to draw itself beyond judicial review when the Constitution is involved. 49 Nationalism is inherent in the very concept of the Philippines being a democratic and republican state, with sovereignty residing in the Filipino people and from whom all government authority emanates. In nationalism, the happiness and welfare of the people must be the goal. The nation-state can have no higher purpose. Any interpretation of any constitutional provision must adhere to such basic concept. Protection of foreign investments, while laudable, is merely a policy. It cannot override the demands of nationalism. 50 The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to be sold to the highest bidder solely for the sake of privatization. We are not talking about an ordinary piece of property in a commercial district. We are talking about a historic relic that has hosted many of the most important events in the short history of the Philippines as a nation. We are talking about a hotel where heads of states would prefer to be housed as a strong manifestation of their desire to cloak the dignity of the highest state function to their official visits to the Philippines. Thus the Manila Hotel has played and continues to play a significant role as an authentic repository of twentieth century Philippine history and culture. In this sense, it has become truly a reflection of the Filipino soul a place with a history of grandeur; a most historical setting that has played a part in the shaping of a country. 51
cda

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

the Philippine Constitution. And this Court, heeding the clarion call of the Constitution and accepting the duty of being the elderly watchman of the nation, will continue to respect and protect the sanctity of the Constitution. WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE COUNSEL are directed to CEASE and DESIST from selling 51% of the shares of the Manila Hotel Corporation to RENONG BERHAD, and to ACCEPT the matching bid of petitioner MANILA PRINCE HOTEL CORPORATION to purchase the subject 51% of the shares of the Manila Hotel Corporation at P44.00 per share and thereafter to execute the necessary agreements and documents to effect the sale, to issue the necessary clearances and to do such other acts and deeds as may be necessary for the purpose.

SO ORDERED

SECOND DIVISION
[G.R. No. L-22008. November 3, 1924.] THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. JULIO POMAR, defendant-appellant. Araneta & Zaragoza for appellant. Attorney-General Villa-Real for appellee. SYLLABUS 1.POLICE POWER; SECTIONS 13 AND 15 OF ACT NO. 3071, LEGALITY OR CONSTITUTIONALITY OF. Held: the facts stated in the opinion, that the provisions of said sections had not been adopted within the reasonable and lawful exercise of the police power of the state, and were therefore unconstitutional and illegal. 2.POLICE POWER OF THE STATE, DEFINED. By reason of the constant growth of public opinion in a rapidly developing civilization, the term "police power" has never been, and we do not believe can be, clearly and definitely defined and circumscribed. Advancing civilization is bringing within the police power of the state today things which were not thought of as being within such power yesterday. The development of civilization, the rapidly increasing population, the growth of public opinion, with an increasing desire on the part of the masses and of the government to look after and care for the interests of the individuals of the state, have brought within the police power many questions for regulation which formerly were not so considered. In a republican form of government, public sentiment wields a tremendous influence upon what the state may or may not do for the protection of the health and public morals of its people. Generally it may be said: "The police power is the power vested in the legislature of the state to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, which are not repugnant to the constitution as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the state." 3.POLICE POWER CANNOT BE EXERCISED IN CONTRAVENTION OF THE INHIBITIONS OF THE ORGANIC LAW OF THE STATE. The constitution or the law of the people of a state is the supreme law of the land. The police of the state cannot be exercised in contravention of the inhibitions of the constitution. Neither public sentiment, nor a desire to ameliorate the public morals of the people of the state will justify the promulgation of a law which contravenes the

express provisions of the fundamental law of the people. Amendments to the constitution must first be made. 4.CONSTITUTIONAL LAW, PROTECTION GUARANTEED THEREUNDER. Under the provisions of the organic law of the Philippine Islands, the citizens thereof are guaranteed that they shall not be deprived of life, or property without due process of law. The legality of the provisions of sections 13 and 15 of Act No. 3071 is attacked upon the ground that they authorize an unconstitutional interference with the freedom of contract and that the freedom and right to enter into legal contracts constitutes one of the liberties of the people of the state; that the right to contract about one's affairs is a part of the liberty of the individual protected by the constitutions. It is now settled by a long line of decisions that the right to contract about one's own affairs is a part of the liberty of the individuals of the state under the constitution, assuming, of course, that the contracts are legal and not against public policy or morals. Included within the right to contract, there exists the right to contract for personal services or employment, by which labor and other services are exchanged for money or other forms of property. 5.CONTRACTS; LAWFUL; THE RIGHT TO ENTER INTO. The right to enter into lawful contracts constitutes one of the liberties of the people of the state. If that right be struck down or arbitrarily interfered with, there is a substantial impairment of the liberty of the people under the constitution. The right to enter into lawful contracts is as essential to the laborer as it is to the capitalist. A citizen cannot be compelled to give employment to another citizen, nor can any one be compelled to be employed against his will. Liberty includes not only the right to labor, but to refuse to labor, and, consequently, the right to contract to labor or for labor, and to terminate such contracts and to refuse to make such contracts. 6.CONTRACTS, PROVISION OF; POWER OF THE LEGISLATURE TO PRESCRIBE TERMS OF. The legislature, under the organic law, is not permitted to prescribe terms of legal contract and thereby deprive the citizens of the state from entering freely into such contracts according to their own convenience and advantage, so long as the contracts entered into are no prohibited by public policy or morals. To enter into legal contracts freely and without restraint, is one of the liberties guaranteed to the people of the state. 7.CONSTITUTIONAL LAWS; POLICE POWER OF THE STATE. The police power of the state is a growing and expanding power. As civilization develops and public conscience becomes awakened, the police power may be extended, as has been demonstrated in the growth of public sentiment with reference to many subjects, but that power cannot grow faster than the fundamental law of the state, nor transcend or violate the express inhibitions of the people's law the constitution. If the people desire to have the police power extended and applied to things prohibited by the organic law, they must first amend that law.

DECISION

JOHNSON, J :
p

The only question presented by this appeal is whether or not the provisions of sections 13 and 15 of Act No. 3071 are a reasonable and lawful exercise of the police power of the state. It appears from the record that on the 26th day of October, 1923, the prosecuting attorney of the City of Manila presented a complaint in the Court of First Instance, accusing the defendant of a violation of section 13 in connection with section 15 of Act No. 3071 of the Philippine Legislature. The complaint alleged:
"That on or about the 27th day of August, 1923, and sometime prior thereto, in the City of Manila, Philippine Islands, the said accused, being the manager and person in charge of La Flor de la Isabela, a tobacco factory pertaining to La Compaia General de Tabacos de Filipinas, a corporation duly authorized to transact business in said city, and having, during the year 1923, in his employ and service as cigar-maker in said factory, a woman by the name of Macaria Fajardo, whom he granted vacation leave which began on the 16th day of July, 1923, by reason o her pregnancy, did then and there willfully, unlawfully, and feloniously fail and refuse to pay to said woman the sum of eighty pesos (P80), Philippine currency, to which she was entitled as her regular wages corresponding to thirty days before and thirty days after her delivery and confinement which took place on the 12th day of August, 1923, despite and over the demands made by her, the said Macaria Fajardo, upon said accused, to do so."

To said complaint, the defendant demurred, alleging that the facts therein contained did not constitute an offense. The demurrer was overruled, whereupon the defendant answered and admitted at the trial all of the allegations contained in the complaint, and contended that the provisions of said Act No. 3071, upon which the complaint was based, were illegal, unconstitutional and void. Upon a consideration of the facts charged in the complaint and admitted by the defendant, the Honorable C. A. Imperial, judge, found the defendant guilty of the alleged offense described in the complaint, and sentenced him to pay a fine of P50, in accordance with the provisions of section 15 of said Act, to suffer subsidiary imprisonment in case of insolvency, and to pay the costs. From that sentence the defendant appealed, and now makes the following assignments of error: That the court erred in overruling the demurrer; in convicting him of the crime charged in the information; and in not declaring section 13 of Act No. 3071 unconstitutional. Section 13 of Act No. 3071 is as follows:

"Every person, firm or corporation owning or managing a factory, shop or place of labor of any description shall be obliged to grant to any woman employed by it as laborer who may be pregnant, thirty days vacation with pay before and another thirty days after confinement: Provided, That the employer shall not discharge such laborer without just cause, under the penalty of being required to pay to her wages equivalent to the total of two months counted from the day of her discharge."

Section 15 of the same Act is as follows:

"Any person, firm or corporation violating any of the provisions of this Act shall be punished by a fine of not less than fifty pesos nor more than two hundred and fifty, or by imprisonment for not less than ten days nor more than six months, or both, in the discretion of the court. "In the case of firms or corporations, the presidents, directors or managers thereof or, in their default, the persons acting in their stead, shall be criminally responsible for each violation of the provisions of this Act."

Said section 13 was enacted by the Legislature of the Philippine Islands in the exercise of its supposed police power, with the praiseworthy purpose of safeguarding the health of pregnant women laborers in "factory, shop or place of labor of any description," and of insuring to them, to a certain extent, reasonable support for one month before and one month after their delivery. The question presented for decision by the appeal is whether said Act has been adopted in the reasonable and lawful exercise of the police power of the state. In determining whether a particular law promulgated under the police power of the state is, in fact, within said power, it becomes necessary, first, to determine what that power is, its limits and scope. Literally hundreds of decisions have been promulgated in which definitions of the police power have been attempted. An examination of all of said decisions will show that the definitions are generally limited to particular cases and examples, which are as varied as they are numerous. By reason of the constant growth of public opinion in a developing civilization, the term "police power" has never been, and we do not believe can be, clearly and definitely defined and circumscribed. One hundred years ago, for example, it is doubtful whether the most eminent jurist, or court, or legislature would have for a moment thought that, by any possibility, a law providing for the destruction of a building in which alcoholic liquors were sold, was within a reasonable and lawful exercise of the police power. (Mugler vs. Kansas, 123 U. S., 623.) The development of civilization, the rapidly increasing population, the growth of public opinion, with a desire on the part of the masses and of the government to look after and care for the interests of the individuals of the state, have brought within the police power of the state many questions for regulation which formerly were not so considered. In a republican form of government public sentiment wields a tremendous influence what the state may or may not do, for the protection of the health and public morals of the

people. Yet, neither public sentiment, nor a desire to ameliorate the public morals of the people of the state will justify the promulgation of a law which contravenes the express provisions of the fundamental law of the people the constitution of the state. A definition of the police power of the state must depend upon the particular law and the particular facts to which it is so applied. The many definitions which have been given by the highest courts may be examined, however, for the purpose of giving us a compass or guide to assist us in arriving at a correct conclusion in the particular case before us. Sir William Blackstone, one of the greatest expounders of the common law, defines the police power as "the due regulation and domestic order of the kingdom, whereby the inhabitants of a state, like members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood, and good manners, and to be decent, industrious, and inoffensive in their respective stations." (4 Blackstone's Commentaries, 162.) Mr. Jeremy Bentham, in his General View of Public Offenses, gives us the following definition: "Police is in general a system of precaution, either for the prevention of crimes or of calamities. Its business may be distributed into eight distinct branches: (1) Police for the prevention of offenses; (2) police for the prevention of calamities; (3) police for the prevention of endemic diseases; (4) police of charity; (5) police of interior communications; (6) police of public amusements; (7) police for recent intelligence; (8) police for registration." Mr. Justice Cooley, perhaps the greatest expounder of the American Constitution, says: "The police power is the power vested in the legislature by the constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same. . . ." (Cooley's Constitutional Limitations, p. 830.) In the case of Commonwealth of Massachusetts vs. Alger (7 Cushing, 53), we find a very comprehensive definition of the police power of the state. In that case it appears that the colony of Massachusetts in 1647 adopted an Act to preserve the harbor of Boston and to prevent encroachments therein. The defendant unlawfully erected, built, and established in said harbor, and extended beyond said lines and into and over the tide water of the Commonwealth a certain superstructure, obstruction and encumbrance. Said Act provided a penalty for its violation of a fine of not less than $1,000 nor more than $5,000 for every offense, and for the destruction of said buildings, or structures, or obstructions as a public nuisance. Alger was arrested and placed on trial for violation of said Act. His defense was that the Act of 1647 was illegal and void, because it permitted the destruction of private property without compensation. Mr. Justice Shaw, speaking for the court in that case, said: "We think it is a settled principle, growing out of the nature of well-ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated, that it shall not be

injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. All property in this commonwealth, as well that in the interior as that bordering on tide waters, is derived directly or indirectly from the government and held subject to those general regulations, which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment, as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law, as the legislature, under the governing and controlling power vested in them by the constitution, may think necessary and expedient." Mr. Justice Shaw further adds: ". . . The power we allude to is rather the police power, the power vested in the legislature by the constitution, to make, ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be fore the good and welfare of the commonwealth, and of the subjects of the same." This court has, in the case of Case vs. Board of Health and Heiser (24 Phil., 250), in discussing the police power of the state, had occasion to pay: ". . . It is a well settled principle, growing out of the nature of well-ordered and civilized society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property to the rights of the community. All property in the state is held subject to its general regulations, which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations, established by law, as the legislature, under the governing and controlling power vested in them by the constitution, may think necessary and expedient. The state, under the police power, is possessed with plenary power to deal with all matters relating to the general health, morals, and safety of the people, so long as it does not contravene any positive inhibition of the organic law and providing that such power is not exercised in such manner as to justify the interference of the courts to prevent positive wrong and oppression." Many other definitions have been given not only by the Supreme Court of the United States but by the Supreme Court of every state of the Union. The foregoing definitions, however, cover the general field of all of the definitions, found in jurisprudence. From all of the definitions we conclude that it is much easier to perceive and realize the existence and sources of the police power than to exactly mark its boundaries, or prescribe limits to its exercise by the legislative department of the government. The most recent definition which has been called to our attention is that found in the case of Adkins vs. Children's Hospital of the District of Columbia (261 U. S., 525). In that case the controversy arose in this way: A children's hospital employed a

number of women at various rates of wages, which were entirely satisfactory to both the hospital and the employees. A hotel company employed a woman as elevator operator at $35 per month and two meals a day under healthy and satisfactory conditions, and she did not risk to lose her position as she could not earn so much anywhere else. Her wages were less than the minimum fixed by a board created under a law for the purpose of fixing a minimum wage for women and children, with a penalty providing a punishment for a failure or refusal to pay the minimum wage fixed. The wage paid by the hotel company of $35 per month and two meals a day was less than the minimum wage fixed by said board. By reason of the order of said board, the hotel company, was about to discharge her, as it was unwilling to pay her more and could not giver her employment at that salary without risking the penalty of a fine and imprisonment under the law. She brought action to enjoin the hotel company from discharging her upon the ground that the enforcement of the "Minimum Wage Act" would deprive her of her employment and wages without due process of law, and that she could not get as good a position anywhere else. The constitutionality of the Act was squarely presented to the Supreme Court of the United States for decision. The Supreme Court of the United States held that said Act was void on the ground that the right to contract about one's own affairs was a part of the liberty of the individual under the constitution, and that while there was no such thing as absolute freedom of contract, and it was necessarily subject to a great variety of restraints, yet none of the exceptional circumstances, which at times justify a limitation upon one's right to contract for his own services, applied in the particular case. In the course of the decision in that case (Adkins vs. Children's Hospital of the District of Columbia, 261 U. S., 525), Mr. Justice Sutherland, after a statement of the fact and making reference to the particular law, said:
"The statute now under consideration is attacked upon the ground that it authorizes an unconstitutional interference with the freedom of contract included within the guarantees of the due process clause of the 5th Amendment. That the right to contract about one's affairs is part of the liberty of the individual by this clause is settled by the decisions of this court, and is no longer open to question. Within this liberty are contracts of employment of labor. In making such contracts, generally speaking, the parties have an equal right to obtain from each other the best terms they can as the result of private bargaining. (Allgeyer vs. Louisiana, 165 U.S., 578, 591; Adair vs. United States, 208 U. S., 161; Muller vs. Oregon, 208 U. S., 412, 421). xxx xxx xxx "The law takes account of the necessities of only one party to the contract. It ignores the necessities of the employer by compelling him to pay not less than a certain sum, not only whether the employee is capable of earning it,

but irrespective of the ability of his business to sustain the burden, generously leaving him, of course, the privilege of abandoning his business as an alternative for going on at a loss. Within the limits of the minimum sum, he is precluded, under penalty of fine and imprisonment, from adjusting compensation to the differing merits of his employees. It compels him to pay at least the sum fixed in any event, because the employee needs it, but requires no service of equivalent value from the employee. It (the law) therefore undertakes to solve but one-half of the problem. The other half is the establishment of a corresponding standard of efficiency; and this forms no part of the policy of the legislation, although in practice the former half without the latter must lead to ultimate failure, in accordance with the inexorable law that no one can continue indefinitely to take out more than he puts in without ultimately exhausting the supply. The law . . . takes no account of periods of distress and business depression, of crippling losses, which may leave the employer himself without adequate means of livelihood. To the extent that the sum fixed exceeds the fair value of the services rendered, it amounts to a compulsory exaction from the employer for the support of a partially indigent person, for whose condition there rests upon him no peculiar responsibility, and therefore, in effect, arbitrarily shifts to his shoulders a burden which, if it belongs to anybody, belongs to society as a whole. "The feature of this statute which, perhaps more than any other, puts upon it the stamp of invalidity is that it exacts from the employer an arbitrary payment for a purpose and upon basis having no casual connection with his business, or the contract, or the work the employee engages to do. The declared basis, as already pointed out, is not the value of the service rendered, but the extraneous circumstance that the employee needs to get a prescribed sum of money to insure her subsistence, health and morals. . . . The necessities of the employee are alone considered, and these arise outside of the employment, are the same when there is no employment, and as great in one occupation as in another. . . . In principle, there can be no difference between the case of selling labor and the case of selling goods. If one goes to the butcher, the baker, or grocer to buy food, he is morally entitled to obtain the worth of his money, but he is not entitled to more. If what he gets is worth what he pays, he is not justified in demanding more simply because he needs more; and the shopkeeper, having dealt fairly and honestly in that transaction, is not concerned in any peculiar sense with the question of his customer's necessities. Should a statute undertake to vest in a commission power to determine the quantity of food necessary for individual support, and require the shopkeeper, if he sell to the individual at all, to furnish that quantity at not more than a fixed maximum, it would undoubtedly fall before the constitutional test. The fallacy of any argument in support of the validity of such a statute would be quickly exposed. The argument in support of that now being considered is equally fallacious, though the weakness of it may not be so plain. . . ."

It has been said that the particular statute before us is required in the interest of social justice for whose and freedom of contract may lawfully be subjected to

restraint. The liberty of the individual to do as he pleases, even in innocent matters, is not absolute. That liberty must frequently yield to the common good, and the line beyond which the power of interference may not be pressed is neither definite nor unalterable, but may be made to move, within limits not well defined, with changing needs and circumstances. The late Mr. Justice Harlan, in the case of Adair vs. United States (208 U. S., 161, 174), said that the right of a person to sell his labor upon such terms as he deems proper is, in its essence, the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept such labor from the person offering to sell. In all such particulars the employer and the employee have equality of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract, which no government can legally justify in a free land, under a constitution which provides that no person shall be deprived of his liberty without due process of law. Mr. Justice Pitney, in the case of Coppage vs. Kansas (236 U. S., 1, 14), speaking for the Supreme Court of the United States, said: ". . . Included in the right of personal liberty and the right of private property partaking of the nature of each is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment, by which labor and other services are exchanged for money or other forms of property. If this right be struck down or arbitrarily interfered with, there is a substantial impairment of liberty in the long established constitutional sense. The right is as essential to the laborer as to the capitalist, to the poor as to the rich; for the vast majority of persons have no other honest way to begin to acquire property, save by working for money." The right to liberty includes the right to enter into contracts and to terminate contracts. In the case of Gillespie vs. People (188 Ill., 176, 183-185) it was held that a statute making it unlawful to discharge an employee because of his connection with any lawful labor organization, and providing a penalty therefor, is void, since the right to terminate a contract, subject to liability to respond in a civil action for an unwarranted termination, is within the protection of the state and Federal constitutions which guarantee that no person shall be deprived of life, liberty or property without due process of law. The court said in part: ". . . One citizen cannot be compelled to give employment to another citizen, nor can anyone be compelled to be employed against his will. The Act of 1893, now under consideration, deprives the employer of the right to terminate his contract with his employee. The right to terminate such a contract is guaranteed by the organic law of the state. The legislature is forbidden to deprive the employer or employee of the exercise of that right. The legislature has no authority to pronounce the performance of an innocent act criminal when the public health, safety, comfort or welfare is not interfered with. The statute in question says that, if a man exercises his constitutional right to terminate a contract with his employee, he shall, without a hearing, be punished as for the commission of a crime.
xxx xxx xxx

"Liberty includes not only the right to labor, but to refuse to labor, and, consequently, the right to contract to labor or for labor, and to terminate such contracts, and to refuse to make such contracts. The legislature cannot prevent persons, who are sui juris, from laboring, or from making such contracts as they may see fit to make relative to their own lawful labor; nor has it any power by penal laws to prevent any person, with or without cause, from refusing to employ another or to terminate a contract with him, subject only to the liability to respond in a civil action for a unwarranted refusal to do that which has been agreed upon. Hence, we are of the opinion that this Act contravenes those provisions of the state and Federal constitutions, which guarantee that no person shall be deprived of life, liberty or property without due process of law."

The statute in question is exactly analogous to the "Minimum Wage Act" referred to above. In section 13 it will be seen that no person, firm, or corporation owning or managing a factory, shop, or place of labor of any description, can make a contract with a woman, without incurring the obligation, whatever the contract of employment might be, unless also promise to pay to such woman employed as a laborer, who may become pregnant, he wages for thirty days before and thirty days after confinement. In other words, said section creates a term or condition in every contract made by every person, firm, or corporation with any woman who may, during the course of her employment, become pregnant, and a failure to include in said contract the terms fixed by the law, makes the employer criminally liable and subject to a fine and imprisonment. Clearly, therefore, the law has deprived, every person, firm or corporation owning or managing a factory, shop or place of labor of any description within the Philippine Islands, of his right to enter into contracts of employment upon such terms as he and the employee may agree upon. The law creates a term in every such contract, without the consent of the parties. Such persons are, therefore, deprived of their liberty to contract. The constitution of the Philippine Islands guarantees to every citizen his liberty and one of his liberties is the liberty to contract. It is believed and confidently asserted that no case can be found, in civilized society and well-organized governments, where individuals have been deprived of their property, under the police power of the state, without compensation, except in cases where the property in question was used for the purpose of violating some law legally adopted, or constitutes a nuisance. Among such cases may be mentioned" Apparatus used in counterfeiting the money of the state; firearms illegally possessed; opium possessed in violation of law; apparatus used for gambling in violation of law; buildings and property used for the purpose of violating laws prohibiting the manufacture and sale of intoxicating liquors; and all cases in which the property itself has become a nuisance and dangerous and detrimental to the public health, morals and general welfare of the state. In all of such cases, and in many more which might be cited, the destruction of the property is permitted in the exercise of the police power of the state. But it must first be established that such property was used as the instrument for the violation of a valid existing law. (Mugler vs. Kansas, 123 U. S.,

623; Slaughter-House Cases, 16 Wall. [U. S.], 36; Butchers' Union, etc., Co. vs. Crescent City, etc., Co., 111 U. S., 746; John Stuart Mill "On Liberty," 28, 29.) Without further attempting to define what are the peculiar subjects or limits of the police power, it may safely be affirmed, that every law for the restraint and punishment of crimes, for the preservation of the public peace, health, and morals, must come within this category. But the state, when providing by legislation for the protection of the public health, the public morals, or the public safety, is subject to and is controlled by the paramount authority of the constitution of the state, and will not be permitted to violate rights secured or guaranteed by that instrument or interfere with the execution of the powers and rights guaranteed to the people under their law the constitution. (Mugler vs. Kansas, 123 U. S., 623.) The police power of the state is a growing and expanding power. As civilization develops and public conscience becomes awakened, the police power may be extended, as has been demonstrated in the growth of public sentiment with reference to the manufacture and sale of intoxicating liquors. But that power cannot grow faster than the fundamental law of the state, nor transcend or violate the express inhibition of the people's law the constitution. If the people desire to have the police power extended and applied to conditions and things prohibited by the organic law, they must first amend that law. It will also be noted from an examination of said section 13, that it takes no account of contracts for the employment of women by the day nor by the piece. The law is equally applicable to each case. It will hardly be contended that the person, firm or corporation owning or managing a factory, shop or place of labor, who employs women by the day or by the piece, could be compelled under the law to pay for sixty days during which no services were rendered. It has been decided in a long line of decisions of the Supreme Court of the United States, that the right to contract about one's affairs is a part of the liberty of the individual, protected by the "due process of law" clause of the constitution (Allgeyer vs. Louisiana, 165 U. S., 578, 591; New York Life Ins. Co. vs. Dodge, 246 U. S., 357, 373, 374; Coppage vs. Kansas, 236 U. S., 1, 10, 14; Adair vs. United States, 208 U. S., 161; Lochner vs. New York, 198, U. S., 45, 49; Muller vs. Oregon, 208 U. S., 412, 421.) The rule in this jurisdiction is, that the contracting parties may establish any agreements, terms, and conditions they may deem advisable, provided they are not contrary to law, morals or public policy. (Art. 1255, Civil Code.) For all of the foregoing reasons, we are fully persuaded, under the facts and the law, that the provisions of section 13, of Act No. 3071 of the Philippine Legislature, are unconstitutional and void, in that they violate and are contrary to the provisions of the first paragraph of section 3 of the Act of Congress of the United States of August 29, 1916. (Vol. 12, Public Laws, p. 238.)

Therefore, the sentence of the lower court is hereby revoked, the complaint is hereby dismissed, and the defendant is hereby discharged from the custody of the law, with costs de oficio. So ordered. Street, Malcolm, Avancea, Villamor, Ostrand, and Romualdez, JJ., concur.

EN BANC
[G.R. No. 174153. October 25, 2006.] RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 REGISTERED VOTERS, petitioners, vs. THE COMMISSION ON ELECTIONS, respondent. ALTERNATIVE LAW GROUPS, INC., intervenor. ONEVOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE and CARLOS P. MEDINA, JR., intervenors. ATTY. PETE QUIRINO QUADRA, intervenor. BAYAN represented by its Chairperson Dr. Carolina PagaduanAraullo, BAYAN MUNA represented by its Chairperson Dr. Reynaldo Lesaca, KILUSANG MAYO UNO represented by its Secretary General Joel Maglunsod, HEAD represented by its Secretary General Dr. Gene Alzona Nisperos, ECUMENICAL BISHOPS FORUM represented by Fr. Dionito Cabillas, MIGRANTE represented by its Chairperson Concepcion BragasRegalado, GABRIELA represented by its Secretary General Emerenciana de Jesus, GABRIELA WOMEN'S PARTY represented by Sec. Gen. Cristina Palabay, ANAKBAYAN represented by Chairperson Eleanor de Guzman, LEAGUE OF FILIPINO STUDENTS represented by Chair Vencer Crisostomo Palabay, JOJO PINEDA of the League of Concerned Professionals and Businessmen, DR. DARBY SANTIAGO of the Solidarity of Health Against Charter Change, DR. REGINALD PAMUGAS of Health Action for Human Rights, intervenors. LORETA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA THERESA HONTIVEROS-BARAQUEL, intervenors. LUWALHATI RIACASA ANTONINO, intervenor. ARTURO M. DE CASTRO, intervenor.

TRADE UNION CONGRESS OF THE PHILIPPINES, intervenor. LUWALHATI RICASA ANTONINO, intervenor. PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS, and AMADO GAT INCIONG, intervenors. RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO BAYA, intervenors. PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and MR. VICTORINO F. BALAIS, intervenors. SENATE OF THE PHILIPPINES, represented by its President, MANUEL VILLAR, JR., intervenor. SULONG BAYAN MOVEMENT FOUNDATION, INC., intervenor. JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANTONIO L. SALVADOR, and RANDALL TABAYOYONG, intervenors. INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU PROVINCE CHAPTERS, intervenors. SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and SENATORS SERGIO R. OSMEA III, JAMBY MADRIGAL, JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO LACSON, intervenors. JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, intervenors.

[G.R. No. 174299. October 25, 2006.] MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A.V. SAGUISAG, petitioners, vs. COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, SR., and Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO NICODEMO T. FERRER, and John Doe and Peter Doe, respondents.

DECISION

CARPIO, J :
p

The Case These are consolidated petitions on the Resolution dated 31 August 2006 of the Commission on Elections ("COMELEC") denying due course to an initiative petition to amend the 1987 Constitution. Antecedent Facts On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino and Erico B. Aumentado ("Lambino Group"), with other groups 1 and individuals, commenced gathering signatures for an initiative petition to change the 1987 Constitution. On 25 August 2006, the Lambino Group filed a petition with the COMELEC to hold a plebiscite that will ratify their initiative petition under Section 5(b) and (c) 2 and Section 7 3 of Republic Act No. 6735 or the Initiative and Referendum Act ("RA 6735"). The Lambino Group alleged that their petition had the support of 6,327,952 individuals constituting at least twelve per centum (12%) of all registered voters, with each legislative district represented by at least three per centum (3%) of its registered voters. The Lambino Group also claimed that COMELEC election registrars had verified the signatures of the 6.3 million individuals. The Lambino Group's initiative petition changes the 1987 Constitution by modifying Sections 1-7 of Article VI (Legislative Department) 4 and Sections 1-4 of Article VII (Executive Department) 5 and by adding Article XVIII entitled "Transitory Provisions." 6 These proposed changes will shift the present Bicameral-Presidential system to a Unicameral-Parliamentary form of government. The Lambino Group prayed that after

due publication of their petition, the COMELEC should submit the following proposition in a plebiscite for the voters' ratification:
DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM, AND PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO THE OTHER?

On 30 August 2006, the Lambino Group filed an Amended Petition with the COMELEC indicating modifications in the proposed Article XVIII (Transitory Provisions) of their initiative. 7 The Ruling of the COMELEC On 31 August 2006, the COMELEC issued its Resolution denying due course to the Lambino Group's petition for lack of an enabling law governing initiative petitions to amend the Constitution. The COMELEC invoked this Court's ruling in Santiago v. Commission on Elections 8 declaring RA 6735 inadequate to implement the initiative clause on proposals to amend the Constitution. 9 In G.R. No. 174153, the Lambino Group prays for the issuance of the writs of certiorari and mandamus to set aside the COMELEC Resolution of 31 August 2006 and to compel the COMELEC to give due course to their initiative petition. The Lambino Group contends that the COMELEC committed grave abuse of discretion in denying due course to their petition since Santiago is not a binding precedent. Alternatively, the Lambino Group claims that Santiago binds only the parties to that case, and their petition deserves cognizance as an expression of the "will of the sovereign people." In G.R. No. 174299, petitioners ("Binay Group") pray that the Court require respondent COMELEC Commissioners to show cause why they should not be cited in contempt for the COMELEC's verification of signatures and for "entertaining" the Lambino Group's petition despite the permanent injunction in Santiago. The Court treated the Binay Group's petition as an opposition-in-intervention. In his Comment to the Lambino Group's petition, the Solicitor General joined causes with the petitioners, urging the Court to grant the petition despite the Santiago ruling. The Solicitor General proposed that the Court treat RA 6735 and its implementing rules "as temporary devises to implement the system of initiative." Various groups and individuals sought intervention, filing pleadings supporting or opposing the Lambino Group's petition. The supporting intervenors 10 uniformly hold the view that the COMELEC committed grave abuse of discretion in relying on Santiago.

On the other hand, the opposing intervenors 11 hold the contrary view and maintain that Santiago is a binding precedent. The opposing intervenors also challenged (1) the Lambino Group's standing to file the petition; (2) the validity of the signature gathering and verification process; (3) the Lambino Group's compliance with the minimum requirement for the percentage of voters supporting an initiative petition under Section 2, Article XVII of the 1987 Constitution; 12 (4) the nature of the proposed changes as revisions and not mere amendments as provided under Section 2, Article XVII of the 1987 Constitution; and (5) the Lambino Group's compliance with the requirement in Section 10(a) of RA 6735 limiting initiative petitions to only one subject.
ACETIa

The Court heard the parties and intervenors in oral arguments on 26 September 2006. After receiving the parties' memoranda, the Court considered the case submitted for resolution. The Issues The petitions raise the following issues: 1.Whether the Lambino Group's initiative petition complies with Section 2, Article XVII of the Constitution on amendments to the Constitution through a people's initiative; 2.Whether this Court should revisit its ruling in Santiago declaring RA 6735 "incomplete, inadequate or wanting in essential terms and conditions" to implement the initiative clause on proposals to amend the Constitution; and 3.Whether the COMELEC committed grave abuse of discretion in denying due course to the Lambino Group's petition. The Ruling of the Court There is no merit to the petition. The Lambino Group miserably failed to comply with the basic requirements of the Constitution for conducting a people's initiative. Thus, there is even no need to revisit Santiago, as the present petition warrants dismissal based alone on the Lambino Group's glaring failure to comply with the basic requirements of the Constitution. For following the Court's ruling in Santiago, no grave abuse of discretion is attributable to the Commission on Elections. 1.The Initiative Petition Does Not Comply with Section 2, Article XVII of the Constitution on Direct Proposal by the People

Section 2, Article XVII of the Constitution is the governing constitutional provision that allows a people's initiative to propose amendments to the Constitution. This section states:
Sec. 2.Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters of which every legislative district must be represented by at least three per centum of the registered voters therein. . . . . (Emphasis supplied)

The deliberations of the Constitutional Commission vividly explain the meaning of an amendment "directly proposed by the people through initiative upon a petition," thus:
MR. RODRIGO: Let us look at the mechanics. Let us say some voters want to propose a constitutional amendment. Is the draft of the proposed constitutional amendment ready to be shown to the people when they are asked to sign?

MR. SUAREZ: That can be reasonably assumed, Madam President. MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them before they sign. Now, who prepares the draft? MR. SUAREZ: The people themselves, Madam President. MR. RODRIGO: No, because before they sign there is already a draft shown to them and they are asked whether or not they want to propose this constitutional amendment. MR. SUAREZ: As it is envisioned, any Filipino can prepare that proposal and pass it around for signature. 13 (Emphasis supplied)

Clearly, the framers of the Constitution intended that the "draft of the proposed constitutional amendment" should be "ready and shown" to the people "before" they sign such proposal. The framers plainly stated that "before they sign there is already a draft shown to them." The framers also "envisioned" that the people should sign on the proposal itself because the proponents must "prepare that proposal and pass it around for signature." The essence of amendments "directly proposed by the people through initiative upon a petition" is that the entire proposal on its face is a petition by the people. This means two essential elements must be present. First, the people must author and thus sign

the entire proposal. No agent or representative can sign on their behalf. Second, as an initiative upon a petition, the proposal must be embodied in a petition. These essential elements are present only if the full text of the proposed amendments is first shown to the people who express their assent by signing such complete proposal in a petition. Thus, an amendment is "directly proposed by the people through initiative upon a petition" only if the people sign on a petition that contains the full text of the proposed amendments. The full text of the proposed amendments may be either written on the face of the petition, or attached to it. If so attached, the petition must state the fact of such attachment. This is an assurance that every one of the several millions of signatories to the petition had seen the full text of the proposed amendments before signing. Otherwise, it is physically impossible, given the time constraint, to prove that every one of the millions of signatories had seen the full text of the proposed amendments before signing. The framers of the Constitution directly borrowed 14 the concept of people's initiative from the United States where various State constitutions incorporate an initiative clause. In almost all States 15 which allow initiative petitions, the unbending requirement is that the people must first see the full text of the proposed amendments before they sign to signify their assent, and that the people must sign on an initiative petition that contains the full text of the proposed amendments. 16 The rationale for this requirement has been repeatedly explained in several decisions of various courts. Thus, in Capezzuto v. State Ballot Commission, the Supreme Court of Massachusetts, affirmed by the First Circuit Court of Appeals, declared:
[A] signature requirement would be meaningless if the person supplying the signature has not first seen what it is that he or she is signing. Further, and more importantly, loose interpretation of the subscription requirement can pose a significant potential for fraud. A person permitted to describe orally the contents of an initiative petition to a potential signer, without the signer having actually examined the petition, could easily mislead the signer by, for example, omitting, downplaying, or even flatly misrepresenting, portions of the petition that might not be to the signer's liking. This danger seems particularly acute when, in this case, the person giving the description is the drafter of the petition, who obviously has a vested interest in seeing that it gets the requisite signatures to qualify for the ballot. 17 (Boldfacing and underscoring supplied)

Likewise, in Kerr v. Bradbury, 18 the Court of Appeals of Oregon explained:

The purposes of "full text" provisions that apply to amendments by initiative commonly are described in similar terms. . . . (The purpose of the full text

requirement is to provide sufficient information so that registered voters can intelligently evaluate whether to sign the initiative petition."); . . . (publication of full text of amended constitutional provision required because it is "essential for the elector to have . . . the section which is proposed to be added to or subtracted from. If he is to vote intelligently, he must have this knowledge. Otherwise in many instances he would be required to vote in the dark.") (Emphasis supplied)

Moreover, "an initiative signer must be informed at the time of signing of the nature and effect of that which is proposed" and failure to do so is "deceptive and misleading" which renders the initiative void. 19 Section 2, Article XVII of the Constitution does not expressly state that the petition must set forth the full text of the proposed amendments. However, the deliberations of the framers of our Constitution clearly show that the framers intended to adopt the relevant American jurisprudence on people's initiative. In particular, the deliberations of the Constitutional Commission explicitly reveal that the framers intended that the people must first see the full text of the proposed amendments before they sign, and that the people must sign on a petition containing such full text. Indeed, Section 5(b) of Republic Act No. 6735, the Initiative and Referendum Act that the Lambino Group invokes as valid, requires that the people must sign the "petition . . . as signatories."
cADTSH

The proponents of the initiative secure the signatures from the people. The proponents secure the signatures in their private capacity and not as public officials. The proponents are not disinterested parties who can impartially explain the advantages and disadvantages of the proposed amendments to the people. The proponents present favorably their proposal to the people and do not present the arguments against their proposal. The proponents, or their supporters, often pay those who gather the signatures. Thus, there is no presumption that the proponents observed the constitutional requirements in gathering the signatures. The proponents bear the burden of proving that they complied with the constitutional requirements in gathering the signatures that the petition contained, or incorporated by attachment, the full text of the proposed amendments. The Lambino Group did not attach to their present petition with this Court a copy of the paper that the people signed as their initiative petition. The Lambino Group submitted to this Court a copy of a signature sheet 20 after the oral arguments of 26 September 2006 when they filed their Memorandum on 11 October 2006. The signature sheet with this Court during the oral arguments was the signature sheet attached 21 to the opposition in intervention filed on 7 September 2006 by intervenor Atty. Pete Quirino-Quadra.

The signature sheet attached to Atty. Quadra's opposition and the signature sheet attached to the Lambino Group's Memorandum are the same. We reproduce below the signature sheet in full:
Province:City/Municipality:No. of Verified Legislative District:Barangay:Signatures:

PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM OF GOVERNMENT, IN ORDER TO ACHIEVE GREATER EFFICIENCY, SIMPLICITY AND ECONOMY IN GOVERNMENT; AND PROVIDING AN ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO ANOTHER?" I hereby APPROVE the proposed amendment to the 1987 Constitution. My signature herein which shall form part of the petition for initiative to amend the Constitution signifies my support for the filing thereof.

There is not a single word, phrase, or sentence of text of the Lambino Group's proposed changes in the signature sheet. Neither does the signature sheet state that the text of the proposed changes is attached to it. Petitioner Atty. Raul Lambino admitted this during the oral arguments before this Court on 26 September 2006. The signature sheet merely asks a question whether the people approve a shift from the Bicameral-Presidential to the Unicameral-Parliamentary system of government. The signature sheet does not show to the people the draft of the proposed changes before they are asked to sign the signature sheet. Clearly, the signature sheet is not the

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

The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the present petition. However, the "Official Website of the Union of Local Authorities of the Philippines" 22 has posted the full text of Resolution No. 2006-02, which provides:

RESOLUTION NO. 2006-02

RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE'S CONSULTATIVE COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION WHEREAS, there is a need for the Union of Local Authorities of the Philippines (ULAP) to adopt a common stand on the approach to support the proposals of the People's Consultative Commission on Charter Change; WHEREAS, ULAP maintains its unqualified support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms as embodied in the ULAP Joint Declaration for Constitutional Reforms signed by the members of the ULAP and the majority coalition of the House of Representatives in Manila Hotel sometime in October 2005; WHEREAS, the People's Consultative Commission on Charter Change created by Her Excellency to recommend amendments to the 1987 Constitution has submitted its final report sometime in December 2005; WHEREAS, the ULAP is mindful of the current political developments in Congress which militates against the use of the expeditious form of amending the 1987 Constitution; WHEREAS, subject to the ratification of its institutional members and the failure of Congress to amend the Constitution as a constituent assembly, ULAP has unanimously agreed to pursue the constitutional reform agenda through People's Initiative and Referendum without prejudice to other pragmatic means to pursue the same; WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, THAT ALL THE MEMBER-LEAGUES OF THE UNION OF LOCAL AUTHORITIES OF THE PHILIPPINES (ULAP) SUPPORT THE PORPOSALS (SIC) OF THE PEOPLE'S CONSULATATIVE (SIC) COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION; DONE, during the ULAP National Executive Board special meeting held on 14 January 2006 at the Century Park Hotel, Manila. 23 (Underscoring supplied)

ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado to prepare the 25 August 2006 petition, or the 30 August 2006 amended petition, filed with the COMELEC. ULAP Resolution No. 2006-02 "support(s) the porposals (sic) of the Consulatative (sic) Commission on Charter Change through people's initiative and referendum as a mode of amending the 1987 Constitution." The proposals of the Consultative Commission 24 are vastly different from the proposed changes of the

Lambino Group in the 25 August 2006 petition or 30 August 2006 amended petition filed with the COMELEC. For example, the proposed revisions of the Consultative Commission affect all provisions of the existing Constitution, from the Preamble to the Transitory Provisions. The proposed revisions have profound impact on the Judiciary and the National Patrimony provisions of the existing Constitution, provisions that the Lambino Group's proposed changes do not touch. The Lambino Group's proposed changes purport to affect only Articles VI and VII of the existing Constitution, including the introduction of new Transitory Provisions. The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more than six months before the filing of the 25 August 2006 petition or the 30 August 2006 amended petition with the COMELEC. However, ULAP Resolution No. 2006-02 does not establish that ULAP or the Lambino Group caused the circulation of the draft petition, together with the signature sheets, six months before the filing with the COMELEC. On the contrary, ULAP Resolution No. 2006-02 casts grave doubt on the Lambino Group's claim that they circulated the draft petition together with the signature sheets. ULAP Resolution No. 2006-02 does not refer at all to the draft petition or to the Lambino Group's proposed changes. In their Manifestation explaining their amended petition before the COMELEC, the Lambino Group declared:
After the Petition was filed, Petitioners belatedly realized that the proposed amendments alleged in the Petition, more specifically, paragraph 3 of Section 4 and paragraph 2 of Section 5 of the Transitory Provisions were inaccurately stated and failed to correctly reflect their proposed amendments.
AaDSEC

The Lambino Group did not allege that they were amending the petition because the amended petition was what they had shown to the people during the February to August 2006 signature-gathering. Instead, the Lambino Group alleged that the petition of 25 August 2006 "inaccurately stated and failed to correctly reflect their proposed amendments." The Lambino Group never alleged in the 25 August 2006 petition or the 30 August 2006 amended petition with the COMELEC that they circulated printed copies of the draft petition together with the signature sheets. Likewise, the Lambino Group did not allege in their present petition before this Court that they circulated printed copies of the draft petition together with the signature sheets. The signature sheets do not also contain any indication that the draft petition is attached to, or circulated with, the signature sheets.

It is only in their Consolidated Reply to the Opposition-in-Interventions that the Lambino Group first claimed that they circulated the "petition for initiative filed with the COMELEC," thus:
[T]here is persuasive authority to the effect that "(w)here there is not (sic) fraud, a signer who did not read the measure attached to a referendum petition cannot question his signature on the ground that he did not understand the nature of the act." [82 C.J.S. S128h. Mo. State v. Sullivan, 224, S.W. 327, 283 Mo. 546.] Thus, the registered voters who signed the signature sheets circulated together with the petition for initiative filed with the COMELEC below, are presumed to have understood the proposition contained in the petition. (Emphasis supplied)

The Lambino Group's statement that they circulated to the people "the petition for initiative filed with the COMELEC" appears an afterthought, made after the intervenors Integrated Bar of the Philippines (Cebu City Chapter and Cebu Province Chapters) and Atty. Quadra had pointed out that the signature sheets did not contain the text of the proposed changes. In their Consolidated Reply, the Lambino Group alleged that they circulated "the petition for initiative" but failed to mention the amended petition. This contradicts what Atty. Lambino finally stated during the oral arguments that what they circulated was the draft of the amended petition of 30 August 2006. The Lambino Group cites as authority Corpus Juris Secundum, stating that "a signer who did not read the measure attached to a referendum petition cannot question his signature on the ground that he did not understand the nature of the act." The Lambino Group quotes an authority that cites a proposed change attached to the petition signed by the people. Even the authority the Lambino Group quotes requires that the proposed change must be attached to the petition. The same authority the Lambino Group quotes requires the people to sign on the petition itself. Indeed, it is basic in American jurisprudence that the proposed amendment must be incorporated with, or attached to, the initiative petition signed by the people. In the present initiative, the Lambino Group's proposed changes were not incorporated with, or attached to, the signature sheets. The Lambino Group's citation of Corpus Juris Secundum pulls the rug from under their feet. It is extremely doubtful that the Lambino Group prepared, printed, circulated, from February to August 2006 during the signature-gathering period, the draft of the petition or amended petition they filed later with the COMELEC. The Lambino Group are less than candid with this Court in their belated claim that they printed and circulated, together with the signature sheets, the petition or amended petition. Nevertheless, even assuming the Lambino Group circulated the amended petition during the signature-gathering period, the Lambino Group admitted circulating only very limited copies of the petition.

During the oral arguments, Atty. Lambino expressly admitted that they printed only 100,000 copies of the draft petition they filed more than six months later with the COMELEC. Atty. Lambino added that he also asked other supporters to print additional copies of the draft petition but he could not state with certainty how many additional copies the other supporters printed. Atty. Lambino could only assure this Court of the printing of 100,000 copies because he himself caused the printing of these 100,000 copies. Likewise, in the Lambino Group's Memorandum filed on 11 October 2006, the Lambino Group expressly admit that "petitioner Lambino initiated the printing and reproduction of 100,000 copies of the petition for initiative . . . ." 25 This admission binds the Lambino Group and establishes beyond any doubt that the Lambino Group failed to show the full text of the proposed changes to the great majority of the people who signed the signature sheets. Thus, of the 6.3 million signatories, only 100,000 signatories could have received with certainty one copy each of the petition, assuming a 100 percent distribution with no wastage. If Atty. Lambino and company attached one copy of the petition to each signature sheet, only 100,000 signature sheets could have circulated with the petition. Each signature sheet contains space for ten signatures. Assuming ten people signed each of these 100,000 signature sheets with the attached petition, the maximum number of people who saw the petition before they signed the signature sheets would not exceed 1,000,000. With only 100,000 printed copies of the petition, it would be physically impossible for all or a great majority of the 6.3 million signatories to have seen the petition before they signed the signature sheets. The inescapable conclusion is that the Lambino Group failed to show to the 6.3 million signatories the full text of the proposed changes. If ever, not more than one million signatories saw the petition before they signed the signature sheets.

In any event, the Lambino Group's signature sheets do not contain the full text of the proposed changes, either on the face of the signature sheets, or as attachment with an indication in the signature sheet of such attachment. Petitioner Atty. Lambino admitted this during the oral arguments, and this admission binds the Lambino Group. This fact is also obvious from a mere reading of the signature sheet. This omission is fatal. The failure to so include the text of the proposed changes in the signature sheets renders the initiative void for non-compliance with the constitutional requirement that the amendment must be "directly proposed by the people through initiative upon a petition." The signature sheet is not the "petition" envisioned in the initiative clause of the Constitution.

For sure, the great majority of the 6.3 million people who signed the signature sheets did not see the full text of the proposed changes before signing. They could not have known the nature and effect of the proposed changes, among which are:
1.The term limits on members of the legislature will be lifted and thus members of Parliament can be re-elected indefinitely; 26 2.The interim Parliament can continue to function indefinitely until its members, who are almost all the present members of Congress, decide to call for new parliamentary elections. Thus, the members of the interim Parliament will determine the expiration of their own term of office;

27
3.Within 45 days from the ratification of the proposed changes, the interim Parliament shall convene to propose further amendments or revisions to the Constitution. 28

These three specific amendments are not stated or even indicated in the Lambino Group's signature sheets. The people who signed the signature sheets had no idea that they were proposing these amendments. These three proposed changes are highly controversial. The people could not have inferred or divined these proposed changes merely from a reading or rereading of the contents of the signature sheets. During the oral arguments, petitioner Atty. Lambino stated that he and his group assured the people during the signature-gathering that the elections for the regular Parliament would be held during the 2007 local elections if the proposed changes were ratified before the 2007 local elections. However, the text of the proposed changes belies this. The proposed Section 5(2), Article XVIII on Transitory Provisions, as found in the amended petition, states:
Section 5(2). The interim Parliament shall provide for the election of the members of Parliament, which shall be synchronized and held simultaneously with the election of all local government officials. . . . . (Emphasis supplied)

Section 5(2) does not state that the elections for the regular Parliament will be held simultaneously with the 2007 local elections. This section merely requires that the elections for the regular Parliament shall be held simultaneously with the local elections without specifying the year. Petitioner Atty. Lambino, who claims to be the principal drafter of the proposed changes, could have easily written the word "next" before the phrase "election of all local

government officials." This would have insured that the elections for the regular Parliament would be held in the next local elections following the ratification of the proposed changes. However, the absence of the word "next" allows the interim Parliament to schedule the elections for the regular Parliament simultaneously with any future local elections.
CDISAc

Thus, the members of the interim Parliament will decide the expiration of their own term of office. This allows incumbent members of the House of Representatives to hold office beyond their current three-year term of office, and possibly even beyond the five-year term of office of regular members of the Parliament. Certainly, this is contrary to the representations of Atty. Lambino and his group to the 6.3 million people who signed the signature sheets. Atty. Lambino and his group deceived the 6.3 million signatories, and even the entire nation. This lucidly shows the absolute need for the people to sign an initiative petition that contains the full text of the proposed amendments to avoid fraud or misrepresentation. In the present initiative, the 6.3 million signatories had to rely on the verbal representations of Atty. Lambino and his group because the signature sheets did not contain the full text of the proposed changes. The result is a grand deception on the 6.3 million signatories who were led to believe that the proposed changes would require the holding in 2007 of elections for the regular Parliament simultaneously with the local elections. The Lambino Group's initiative springs another surprise on the people who signed the signature sheets. The proposed changes mandate the interim Parliament to make further amendments or revisions to the Constitution. The proposed Section 4(4), Article XVIII on Transitory Provisions, provides:
Section 4(4). Within forty-five days from ratification of these amendments, the interim Parliament shall convene to propose amendments to, or revisions of, this Constitution consistent with the principles of local autonomy, decentralization and a strong bureaucracy. (Emphasis supplied)

During the oral arguments, Atty. Lambino stated that this provision is a "surplusage" and the Court and the people should simply ignore it. Far from being a surplusage, this provision invalidates the Lambino Group's initiative. Section 4(4) is a subject matter totally unrelated to the shift from the BicameralPresidential to the Unicameral-Parliamentary system. American jurisprudence on initiatives outlaws this as logrolling when the initiative petition incorporates an unrelated subject matter in the same petition. This puts the people in a dilemma since they can answer only either yes or no to the entire proposition, forcing them to sign a petition that effectively contains two propositions, one of which they may find unacceptable.

Under American jurisprudence, the effect of logrolling is to nullify the entire proposition and not only the unrelated subject matter. Thus, in Fine v. Firestone, 29 the Supreme Court of Florida declared:
Combining multiple propositions into one proposal constitutes "logrolling," which, if our judicial responsibility is to mean anything, we cannot permit. The very broadness of the proposed amendment amounts to logrolling because the electorate cannot know what it is voting on the amendment's proponents' simplistic explanation reveals only the tip of the iceberg. . . . . The ballot must give the electorate fair notice of the proposed amendment being voted on. . . . . The ballot language in the instant case fails to do that. The very broadness of the proposal makes it impossible to state what it will affect and effect and violates the requirement that proposed amendments embrace only one subject. (Emphasis supplied)

Logrolling confuses and even deceives the people. In Yute Air Alaska v. McAlpine, 30 the Supreme Court of Alaska warned against "inadvertence, stealth and fraud" in logrolling:
Whenever a bill becomes law through the initiative process, all of the problems that the single-subject rule was enacted to prevent are exacerbated. There is a greater danger of logrolling, or the deliberate intermingling of issues to increase the likelihood of an initiative's passage, and there is a greater opportunity for "inadvertence, stealth and fraud" in the enactment-by-initiative process. The drafters of an initiative operate independently of any structured or supervised process. They often emphasize particular provisions of their proposition, while remaining silent on other (more complex or less appealing) provisions, when communicating to the public. . . . Indeed, initiative promoters typically use simplistic advertising to present their initiative to potential petition-signers and eventual voters. Many voters will never read the full text of the initiative before the election. More importantly, there is no process for amending or splitting the several provisions in an initiative proposal. These difficulties clearly distinguish the initiative from the legislative process. (Emphasis supplied)

Thus, the present initiative appears merely a preliminary step for further amendments or revisions to be undertaken by the interim Parliament as a constituent assembly. The people who signed the signature sheets could not have known that their signatures would be used to propose an amendment mandating the interim Parliament to propose further amendments or revisions to the Constitution. Apparently, the Lambino Group inserted the proposed Section 4(4) to compel the interim Parliament to amend or revise again the Constitution within 45 days from ratification of the proposed changes, or before the May 2007 elections. In the absence of the proposed Section 4(4), the interim Parliament has the discretion whether to amend or revise again

the Constitution. With the proposed Section 4(4), the initiative proponents want the interim Parliament mandated to immediately amend or revise again the Constitution. However, the signature sheets do not explain the reason for this rush in amending or revising again so soon the Constitution. The signature sheets do not also explain what specific amendments or revisions the initiative proponents want the interim Parliament to make, and why there is a need for such further amendments or revisions. The people are again left in the dark to fathom the nature and effect of the proposed changes. Certainly, such an initiative is not "directly proposed by the people" because the people do not even know the nature and effect of the proposed changes. There is another intriguing provision inserted in the Lambino Group's amended petition of 30 August 2006. The proposed Section 4(3) of the Transitory Provisions states:
Section 4(3). Senators whose term of office ends in 2010 shall be members of Parliament until noon of the thirtieth day of June 2010.

After 30 June 2010, not one of the present Senators will remain as member of Parliament if the interim Parliament does not schedule elections for the regular Parliament by 30 June 2010. However, there is no counterpart provision for the present members of the House of Representatives even if their term of office will all end on 30 June 2007, three years earlier than that of half of the present Senators. Thus, all the present members of the House will remain members of the interim Parliament after 30 June 2010. The term of the incumbent President ends on 30 June 2010. Thereafter, the Prime Minister exercises all the powers of the President. If the interim Parliament does not schedule elections for the regular Parliament by 30 June 2010, the Prime Minister will come only from the present members of the House of Representatives to the exclusion of the present Senators. The signature sheets do not explain this discrimination against the Senators. The 6.3 million people who signed the signature sheets could not have known that their signatures would be used to discriminate against the Senators. They could not have known that their signatures would be used to limit, after 30 June 2010, the interim Parliament's choice of Prime Minister only to members of the existing House of Representatives. An initiative that gathers signatures from the people without first showing to the people the full text of the proposed amendments is most likely a deception, and can operate as a gigantic fraud on the people. That is why the Constitution requires that an initiative must be "directly proposed by the people . . . in a petition" meaning that the people

must sign on a petition that contains the full text of the proposed amendments. On so vital an issue as amending the nation's fundamental law, the writing of the text of the proposed amendments cannot be hidden from the people under a general or special power of attorney to unnamed, faceless, and unelected individuals. The Constitution entrusts to the people the power to directly propose amendments to the Constitution. This Court trusts the wisdom of the people even if the members of this Court do not personally know the people who sign the petition. However, this trust emanates from a fundamental assumption: the full text of the proposed amendment is first shown to the people before they sign the petition, not after they have signed the petition. In short, the Lambino Group's initiative is void and unconstitutional because it dismally fails to comply with the requirement of Section 2, Article XVII of the Constitution that the initiative must be "directly proposed by the people through initiative upon a petition." 2.The Initiative Violates Section 2, Article XVII of the Constitution Disallowing Revision through Initiatives A people's initiative to change the Constitution applies only to an amendment of the Constitution and not to its revision. In contrast, Congress or a constitutional convention can propose both amendments and revisions to the Constitution. Article XVII of the Constitution provides:
ARTICLE XVII AMENDMENTS OR REVISIONS Sec. 1.Any amendment to, or revision of, this Constitution may be proposed by: (1)The Congress, upon a vote of three-fourths of all its Members, or (2)A constitutional convention. Sec. 2.Amendments to this Constitution may likewise be directly proposed by the people through initiative . . . . (Emphasis supplied)
CcTIDH

Article XVII of the Constitution speaks of three modes of amending the Constitution. The first mode is through Congress upon three-fourths vote of all its Members. The second mode is through a constitutional convention. The third mode is through a people's initiative.

Section 1 of Article XVII, referring to the first and second modes, applies to "[A]ny amendment to, or revision of, this Constitution." In contrast, Section 2 of Article XVII, referring to the third mode, applies only to "[A]mendments to this Constitution." This distinction was intentional as shown by the following deliberations of the Constitutional Commission:
MR. SUAREZ:Thank you, Madam President. May we respectfully call the attention of the Members of the Commission that pursuant to the mandate given to us last night, we submitted this afternoon a complete Committee Report No. 7 which embodies the proposed provision governing the matter of initiative. This is now covered by Section 2 of the complete committee report. With the permission of the Members, may I quote Section 2: The people may, after five years from the date of the last plebiscite held, directly propose amendments to this Constitution thru initiative upon petition of at least ten percent of the registered voters. This completes the blanks appearing in the original Committee Report No. 7. This proposal was suggested on the theory that this matter of initiative, which came about because of the extraordinary developments this year, has to be separated from the traditional modes of amending the Constitution as embodied in Section 1. The committee members felt that this system of initiative should be limited to amendments to the Constitution and should not extend to the revision of the entire Constitution, so we removed it from the operation of Section 1 of the proposed Article on Amendment or Revision. . ... xxx xxx xxx MS. AQUINO:[I] am seriously bothered by providing this process of initiative as a separate section in the Article on Amendment. Would the sponsor be amenable to accepting an amendment in terms of realigning Section 2 as another subparagraph (c) of Section 1, instead of setting it up as another separate section as if it were a self-executing provision? MR. SUAREZ:We would be amenable except that, as we clarified a while ago, this process of initiative is limited to the matter of amendment and should not expand into a revision which contemplates a total overhaul of the Constitution. That was the sense that was conveyed by the Committee. MS. AQUINO:In other words, the Committee was attempting to distinguish the coverage of modes (a) and (b) in Section 1 to include the process of revision; whereas, the process of initiation to amend, which is given to the public, would only apply to amendments?

MR. SUAREZ:That is right. Those were the terms envisioned in the Committee. MS. AQUINO:I thank the sponsor; and thank you, Madam President. xxx xxx xxx MR. MAAMBONG: My first question: Commissioner Davide's proposed amendment on line 1 refers to "amendments." Does it not cover the word "revision" as defined by Commissioner Padilla when he made the distinction between the words "amendments" and "revision"? MR. DAVIDE:No, it does not, because "amendments" and "revision" should be covered by Section 1. So insofar as initiative is concerned, it can only relate to "amendments" not "revision." MR. MAAMBONG: Thank you. 31 (Emphasis supplied)

There can be no mistake about it. The framers of the Constitution intended, and wrote, a clear distinction between "amendment" and "revision" of the Constitution. The framers intended, and wrote, that only Congress or a constitutional convention may propose revisions to the Constitution. The framers intended, and wrote, that a people's initiative may propose only amendments to the Constitution. Where the intent and language of the Constitution clearly withhold from the people the power to propose revisions to the Constitution, the people cannot propose revisions even as they are empowered to propose amendments. This has been the consistent ruling of state supreme courts in the United States. Thus, in McFadden v. Jordan, 32 the Supreme Court of California ruled:
The initiative power reserved by the people by amendment to the Constitution . . . applies only to the proposing and the adopting or rejecting of 'laws and amendments to the Constitution' and does not purport to extend to a constitutional revision. . . . . It is thus clear that a revision of the Constitution may be accomplished only through ratification by the people of a revised constitution proposed by a convention called for that purpose as outlined hereinabove. Consequently if the scope of the proposed initiative measure (hereinafter termed 'the measure') now before us is so broad that if such measure became law a substantial revision of our present state Constitution would be effected, then the measure may not properly be submitted to the electorate until and unless it is first agreed upon by a constitutional convention, and the writ sought by petitioner should issue. . . . . (Emphasis supplied)

Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling: 33

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

Similarly, in this jurisdiction there can be no dispute that a people's initiative can only propose amendments to the Constitution since the Constitution itself limits initiatives to amendments. There can be no deviation from the constitutionally prescribed modes of revising the Constitution. A popular clamor, even one backed by 6.3 million signatures, cannot justify a deviation from the specific modes prescribed in the Constitution itself. As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364: 34
It is a fundamental principle that a constitution can only be revised or amended in the manner prescribed by the instrument itself, and that any attempt to revise a constitution in a manner other than the one provided in the instrument is almost invariably treated as extra-constitutional and revolutionary. . . . . "While it is universally conceded that the people are sovereign and that they have power to adopt a constitution and to change their own work at will, they must, in doing so, act in an orderly manner and according to the settled principles of constitutional law. And where the people, in adopting a constitution, have prescribed the method by which the people may alter or amend it, an attempt to change the fundamental law in violation of the self-imposed restrictions, is unconstitutional." . . . . (Emphasis supplied)

This Court, whose members are sworn to defend and protect the Constitution, cannot shirk from its solemn oath and duty to insure compliance with the clear command of the Constitution that a people's initiative may only amend, never revise, the Constitution. The question is, does the Lambino Group's initiative constitute an amendment or revision of the Constitution? If the Lambino Group's initiative constitutes a revision, then the present petition should be dismissed for being outside the scope of Section 2, Article XVII of the Constitution. Courts have long recognized the distinction between an amendment and a revision of a constitution. One of the earliest cases that recognized the distinction described the fundamental difference in this manner:
[T]he very term "constitution" implies an instrument of a permanent and abiding nature, and the provisions contained therein for its revision indicate the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the instrument, shall be of a like permanent and abiding nature. On the other hand, the significance of the term "amendment" implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed. 35 (Emphasis supplied)
CDISAc

Revision broadly implies a change that alters a basic principle in the constitution, like altering the principle of separation of powers or the system of checks-and-balances. There is also revision if the change alters the substantial entirety of the constitution, as when the change affects substantial provisions of the constitution. On the other hand, amendment broadly refers to a change that adds, reduces, or deletes without altering the basic principle involved. Revision generally affects several provisions of the constitution, while amendment generally affects only the specific provision being amended. In California where the initiative clause allows amendments but not revisions to the constitution just like in our Constitution, courts have developed a two-part test: the quantitative test and the qualitative test. The quantitative test asks whether the proposed change is "so extensive in its provisions as to change directly the 'substantial entirety' of the constitution by the deletion or alteration of numerous existing provisions." 36 The court examines only the number of provisions affected and does not consider the degree of the change. The qualitative test inquires into the qualitative effects of the proposed change in the constitution. The main inquiry is whether the change will "accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision." 37 Whether there is an alteration in the structure of government is a proper subject of

inquiry. Thus, "a change in the nature of [the] basic governmental plan" includes "change in its fundamental framework or the fundamental powers of its Branches." 38 A change in the nature of the basic governmental plan also includes changes that "jeopardize the traditional form of government and the system of check and balances." 39 Under both the quantitative and qualitative tests, the Lambino Group's initiative is a revision and not merely an amendment. Quantitatively, the Lambino Group's proposed changes overhaul two articles Article VI on the Legislature and Article VII on the Executive affecting a total of 105 provisions in the entire Constitution. 40 Qualitatively, the proposed changes alter substantially the basic plan of government, from presidential to parliamentary, and from a bicameral to a unicameral legislature. A change in the structure of government is a revision of the Constitution, as when the three great co-equal branches of government in the present Constitution are reduced into two. This alters the separation of powers in the Constitution. A shift from the present Bicameral-Presidential system to a Unicameral-Parliamentary system is a revision of the Constitution. Merging the legislative and executive branches is a radical change in the structure of government. The abolition alone of the Office of the President as the locus of Executive Power alters the separation of powers and thus constitutes a revision of the Constitution. Likewise, the abolition alone of one chamber of Congress alters the system of checks-and-balances within the legislature and constitutes a revision of the Constitution. By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a Unicameral-Parliamentary system, involving the abolition of the Office of the President and the abolition of one chamber of Congress, is beyond doubt a revision, not a mere amendment. On the face alone of the Lambino Group's proposed changes, it is readily apparent that the changes will radically alter the framework of government as set forth in the Constitution. Father Joaquin Bernas, S.J., a leading member of the Constitutional Commission, writes:
An amendment envisages an alteration of one or a few specific and separable provisions. The guiding original intention of an amendment is to improve specific parts or to add new provisions deemed necessary to meet new conditions or to suppress specific portions that may have become obsolete or that are judged to be dangerous. In revision, however, the guiding original intention and plan contemplates a re-examination of the entire document, or of provisions of the document which have over-all implications for the entire document, to determine how and to what extent they should be altered. Thus, for instance a switch from the presidential system to a parliamentary system would be a revision because of its over-all impact on the entire constitutional structure. So would a switch from a bicameral system to a

unicameral system be because of its effect on other important provisions of the Constitution. 41 (Emphasis supplied)

In Adams v. Gunter, 42 an initiative petition proposed the amendment of the Florida State constitution to shift from a bicameral to a unicameral legislature. The issue turned on whether the initiative "was defective and unauthorized where [the] proposed amendment would . . . affect several other provisions of [the] Constitution." The Supreme Court of Florida, striking down the initiative as outside the scope of the initiative clause, ruled as follows:
The proposal here to amend Section 1 of Article III of the 1968 Constitution to provide for a Unicameral Legislature affects not only many other provisions of the Constitution but provides for a change in the form of the legislative branch of government, which has been in existence in the United States Congress and in all of the states of the nation, except one, since the earliest days. It would be difficult to visualize a more revolutionary change. The concept of a House and a Senate is basic in the American form of government. It would not only radically change the whole pattern of government in this state and tear apart the whole fabric of the Constitution, but would even affect the physical facilities necessary to carry on government. xxx xxx xxx We conclude with the observation that if such proposed amendment were adopted by the people at the General Election and if the Legislature at its next session should fail to submit further amendments to revise and clarify the numerous inconsistencies and conflicts which would result, or if after submission of appropriate amendments the people should refuse to adopt them, simple chaos would prevail in the government of this State. The same result would obtain from an amendment, for instance, of Section 1 of Article V, to provide for only a Supreme Court and Circuit Courts-and there could be other examples too numerous to detail. These examples point unerringly to the answer. The purpose of the long and arduous work of the hundreds of men and women and many sessions of the Legislature in bringing about the Constitution of 1968 was to eliminate inconsistencies and conflicts and to give the State a workable, accordant, homogenous and up-to-date document. All of this could disappear very quickly if we were to hold that it could be amended in the manner proposed in the initiative petition here. 43 (Emphasis supplied)

The rationale of the Adams decision applies with greater force to the present petition. The Lambino Group's initiative not only seeks a shift from a bicameral to a unicameral legislature, it also seeks to merge the executive and legislative departments. The initiative in Adams did not even touch the executive department.

In Adams, the Supreme Court of Florida enumerated 18 sections of the Florida Constitution that would be affected by the shift from a bicameral to a unicameral legislature. In the Lambino Group's present initiative, no less than 105 provisions of the Constitution would be affected based on the count of Associate Justice Romeo J. Callejo, Sr. 44 There is no doubt that the Lambino Group's present initiative seeks far more radical changes in the structure of government than the initiative in Adams. The Lambino Group theorizes that the difference between "amendment" and "revision" is only one of procedure, not of substance. The Lambino Group posits that when a deliberative body drafts and proposes changes to the Constitution, substantive changes are called "revisions" because members of the deliberative body work full-time on the changes. However, the same substantive changes, when proposed through an initiative, are called "amendments" because the changes are made by ordinary people who do not make an "occupation, profession, or vocation" out of such endeavor. Thus, the Lambino Group makes the following exposition of their theory in their Memorandum:
99.With this distinction in mind, we note that the constitutional provisions expressly provide for both "amendment" and "revision" when it speaks of legislators and constitutional delegates, while the same provisions expressly provide only for "amendment" when it speaks of the people. It would seem that the apparent distinction is based on the actual experience of the people, that on one hand the common people in general are not expected to work full-time on the matter of correcting the constitution because that is not their occupation, profession or vocation; while on the other hand, the legislators and constitutional convention delegates are expected to work full-time on the same matter because that is their occupation, profession or vocation. Thus, the difference between the words "revision" and "amendment" pertain only to the process or procedure of coming up with the corrections, for purposes of interpreting the constitutional provisions. 100.Stated otherwise, the difference between "amendment" and "revision" cannot reasonably be in the substance or extent of the correction. . . . . (Underlining in the original; boldfacing supplied)

The Lambino Group in effect argues that if Congress or a constitutional convention had drafted the same proposed changes that the Lambino Group wrote in the present initiative, the changes would constitute a revision of the Constitution. Thus, the Lambino Group concedes that the proposed changes in the present initiative constitute a revision if Congress or a constitutional convention had drafted the changes. However, since the Lambino Group as private individuals drafted the proposed

changes, the changes are merely amendments to the Constitution. The Lambino Group trivializes the serious matter of changing the fundamental law of the land. The express intent of the framers and the plain language of the Constitution contradict the Lambino Group's theory. Where the intent of the framers and the language of the Constitution are clear and plainly stated, courts do not deviate from such categorical intent and language. 45 Any theory espousing a construction contrary to such intent and language deserves scant consideration. More so, if such theory wreaks havoc by creating inconsistencies in the form of government established in the Constitution. Such a theory, devoid of any jurisprudential mooring and inviting inconsistencies in the Constitution, only exposes the flimsiness of the Lambino Group's position. Any theory advocating that a proposed change involving a radical structural change in government does not constitute a revision justly deserves rejection. The Lambino Group simply recycles a theory that initiative proponents in American jurisdictions have attempted to advance without any success. In Lowe v. Keisling, 46 the Supreme Court of Oregon rejected this theory, thus:
Mabon argues that Article XVII, section 2, does not apply to changes to the constitution proposed by initiative. His theory is that Article XVII, section 2 merely provides a procedure by which the legislature can propose a revision of the constitution, but it does not affect proposed revisions initiated by the people.
AcaEDC

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

"From the foregoing it appears that Article IV, Section 1, authorizes the use of the initiative as a means of amending the Oregon Constitution, but it contains no similar sanction for its use as a means of revising the constitution." . . . . It then reviewed Article XVII, section 2, relating to revisions, and said: "It is the only section of the constitution which provides the means for constitutional revision and it excludes the idea that an individual, through the initiative, may place such a measure before the electorate." . . . . Accordingly, we reject Mabon's argument that Article XVII, section 2, does not apply to constitutional revisions proposed by initiative. (Emphasis supplied)

Similarly, this Court must reject the Lambino Group's theory which negates the express intent of the framers and the plain language of the Constitution. We can visualize amendments and revisions as a spectrum, at one end green for amendments and at the other end red for revisions. Towards the middle of the spectrum, colors fuse and difficulties arise in determining whether there is an amendment or revision. The present initiative is indisputably located at the far end of the red spectrum where revision begins. The present initiative seeks a radical overhaul of the existing separation of powers among the three co-equal departments of government, requiring farreaching amendments in several sections and articles of the Constitution. Where the proposed change applies only to a specific provision of the Constitution without affecting any other section or article, the change may generally be considered an amendment and not a revision. For example, a change reducing the voting age from 18 years to 15 years 47 is an amendment and not a revision. Similarly, a change reducing Filipino ownership of mass media companies from 100 percent to 60 percent is an amendment and not a revision. 48 Also, a change requiring a college degree as an additional qualification for election to the Presidency is an amendment and not a revision. 49 The changes in these examples do not entail any modification of sections or articles of the Constitution other than the specific provision being amended. These changes do not also affect the structure of government or the system of checks-and-balances among or within the three branches. These three examples are located at the far green end of the spectrum, opposite the far red end where the revision sought by the present petition is located. However, there can be no fixed rule on whether a change is an amendment or a revision. A change in a single word of one sentence of the Constitution may be a revision and not an amendment. For example, the substitution of the word "republican" with "monarchic"

or "theocratic" in Section 1, Article II 50 of the Constitution radically overhauls the entire structure of government and the fundamental ideological basis of the Constitution. Thus, each specific change will have to be examined case-by-case, depending on how it affects other provisions, as well as how it affects the structure of government, the carefully crafted system of checks-and-balances, and the underlying ideological basis of the existing Constitution. Since a revision of a constitution affects basic principles, or several provisions of a constitution, a deliberative body with recorded proceedings is best suited to undertake a revision. A revision requires harmonizing not only several provisions, but also the altered principles with those that remain unaltered. Thus, constitutions normally authorize deliberative bodies like constituent assemblies or constitutional conventions to undertake revisions. On the other hand, constitutions allow people's initiatives, which do not have fixed and identifiable deliberative bodies or recorded proceedings, to undertake only amendments and not revisions. In the present initiative, the Lambino Group's proposed Section 2 of the Transitory Provisions states:
Section 2.Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall hereby be amended and Sections 18 and 24 which shall be deleted, all other Sections of Article VI are hereby retained and renumbered sequentially as Section 2, ad seriatim up to 26, unless they are inconsistent with the Parliamentary system of government, in which case, they shall be amended to conform with a unicameral parliamentary form of government; . . . . (Emphasis supplied)

The basic rule in statutory construction is that if a later law is irreconcilably inconsistent with a prior law, the later law prevails. This rule also applies to construction of constitutions. However, the Lambino Group's draft of Section 2 of the Transitory Provisions turns on its head this rule of construction by stating that in case of such irreconcilable inconsistency, the earlier provision "shall be amended to conform with a unicameral parliamentary form of government." The effect is to freeze the two irreconcilable provisions until the earlier one "shall be amended," which requires a future separate constitutional amendment. Realizing the absurdity of the need for such an amendment, petitioner Atty. Lambino readily conceded during the oral arguments that the requirement of a future amendment is a "surplusage." In short, Atty. Lambino wants to reinstate the rule of statutory construction so that the later provision automatically prevails in case of irreconcilable inconsistency. However, it is not as simple as that.

The irreconcilable inconsistency envisioned in the proposed Section 2 of the Transitory Provisions is not between a provision in Article VI of the 1987 Constitution and a provision in the proposed changes. The inconsistency is between a provision in Article VI of the 1987 Constitution and the "Parliamentary system of government," and the inconsistency shall be resolved in favor of a "unicameral parliamentary form of government." Now, what "unicameral parliamentary form of government" do the Lambino Group's proposed changes refer to the Bangladeshi, Singaporean, Israeli, or New Zealand models, which are among the few countries with unicameral parliaments? The proposed changes could not possibly refer to the traditional and well-known parliamentary forms of government the British, French, Spanish, German, Italian, Canadian, Australian, or Malaysian models, which have all bicameral parliaments. Did the people who signed the signature sheets realize that they were adopting the Bangladeshi, Singaporean, Israeli, or New Zealand parliamentary form of government? This drives home the point that the people's initiative is not meant for revisions of the Constitution but only for amendments. A shift from the present Bicameral-Presidential to a Unicameral-Parliamentary system requires harmonizing several provisions in many articles of the Constitution. Revision of the Constitution through a people's initiative will only result in gross absurdities in the Constitution. In sum, there is no doubt whatsoever that the Lambino Group's initiative is a revision and not an amendment. Thus, the present initiative is void and unconstitutional because it violates Section 2, Article XVII of the Constitution limiting the scope of a people's initiative to "[A]mendments to this Constitution." 3.A Revisit of Santiago v. COMELEC is Not Necessary The present petition warrants dismissal for failure to comply with the basic requirements of Section 2, Article XVII of the Constitution on the conduct and scope of a people's initiative to amend the Constitution. There is no need to revisit this Court's ruling in Santiago declaring RA 6735 "incomplete, inadequate or wanting in essential terms and conditions" to cover the system of initiative to amend the Constitution. An affirmation or reversal of Santiago will not change the outcome of the present petition. Thus, this Court must decline to revisit Santiago which effectively ruled that RA 6735 does not comply with the requirements of the Constitution to implement the initiative clause on amendments to the Constitution. This Court must avoid revisiting a ruling involving the constitutionality of a statute if the case before the Court can be resolved on some other grounds. Such avoidance is a logical consequence of the well-settled doctrine that courts will not pass upon the constitutionality of a statute if the case can be resolved on some other grounds. 51

Nevertheless, even assuming that RA 6735 is valid to implement the constitutional provision on initiatives to amend the Constitution, this will not change the result here because the present petition violates Section 2, Article XVII of the Constitution. To be a valid initiative, the present initiative must first comply with Section 2, Article XVII of the Constitution even before complying with RA 6735.
IATSHE

Even then, the present initiative violates Section 5(b) of RA 6735 which requires that the "petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories." Section 5(b) of RA 6735 requires that the people must sign the "petition . . . as signatories." The 6.3 million signatories did not sign the petition of 25 August 2006 or the amended petition of 30 August 2006 filed with the COMELEC. Only Atty. Lambino, Atty. Demosthenes B. Donato, and Atty. Alberto C. Agra signed the petition and amended petition as counsels for "Raul L. Lambino and Erico B. Aumentado, Petitioners." In the COMELEC, the Lambino Group, claiming to act "together with" the 6.3 million signatories, merely attached the signature sheets to the petition and amended petition. Thus, the petition and amended petition filed with the COMELEC did not even comply with the basic requirement of RA 6735 that the Lambino Group claims as valid. The Lambino Group's logrolling initiative also violates Section 10(a) of RA 6735 stating, "No petition embracing more than one (1) subject shall be submitted to the electorate; . . . ." The proposed Section 4(4) of the Transitory Provisions, mandating the interim Parliament to propose further amendments or revisions to the Constitution, is a subject matter totally unrelated to the shift in the form of government. Since the present initiative embraces more than one subject matter, RA 6735 prohibits submission of the initiative petition to the electorate. Thus, even if RA 6735 is valid, the Lambino Group's initiative will still fail. 4.The COMELEC Did Not Commit Grave Abuse of Discretion in Dismissing the Lambino Group's Initiative In dismissing the Lambino Group's initiative petition, the COMELEC en banc merely followed this Court's ruling in Santiago and People's Initiative for Reform, Modernization and Action (PIRMA) v. COMELEC. 52 For following this Court's ruling, no grave abuse of discretion is attributable to the COMELEC. On this ground alone, the present petition warrants outright dismissal. Thus, this Court should reiterate its unanimous ruling in PIRMA:
The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be attributed to the public respondent COMELEC in dismissing the petition filed by PIRMA therein, it appearing that it only complied with the dispositions in the Decisions of this Court in G.R. No. 127325, promulgated on March 19, 1997, and its Resolution of June 10, 1997.

5.Conclusion The Constitution, as the fundamental law of the land, deserves the utmost respect and obedience of all the citizens of this nation. No one can trivialize the Constitution by cavalierly amending or revising it in blatant violation of the clearly specified modes of amendment and revision laid down in the Constitution itself. To allow such change in the fundamental law is to set adrift the Constitution in unchartered waters, to be tossed and turned by every dominant political group of the day. If this Court allows today a cavalier change in the Constitution outside the constitutionally prescribed modes, tomorrow the new dominant political group that comes will demand its own set of changes in the same cavalier and unconstitutional fashion. A revolving-door constitution does not augur well for the rule of law in this country. An overwhelming majority 16,622,111 voters comprising 76.3 percent of the total votes cast 53 approved our Constitution in a national plebiscite held on 11 February 1987. That approval is the unmistakable voice of the people, the full expression of the people's sovereign will. That approval included the prescribed modes for amending or revising the Constitution. No amount of signatures, not even the 6,327,952 million signatures gathered by the Lambino Group, can change our Constitution contrary to the specific modes that the people, in their sovereign capacity, prescribed when they ratified the Constitution. The alternative is an extra-constitutional change, which means subverting the people's sovereign will and discarding the Constitution. This is one act the Court cannot and should never do. As the ultimate guardian of the Constitution, this Court is sworn to perform its solemn duty to defend and protect the Constitution, which embodies the real sovereign will of the people. Incantations of "people's voice," "people's sovereign will," or "let the people decide" cannot override the specific modes of changing the Constitution as prescribed in the Constitution itself. Otherwise, the Constitution the people's fundamental covenant that provides enduring stability to our society becomes easily susceptible to manipulative changes by political groups gathering signatures through false promises. Then, the Constitution ceases to be the bedrock of the nation's stability. The Lambino Group claims that their initiative is the "people's voice." However, the Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the verification of their petition with the COMELEC, that "ULAP maintains its unqualified support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms." The Lambino Group thus admits that their "people's" initiative is an "unqualified support to the agenda" of the incumbent President to change the

Constitution. This forewarns the Court to be wary of incantations of "people's voice" or "sovereign will" in the present initiative. This Court cannot betray its primordial duty to defend and protect the Constitution. The Constitution, which embodies the people's sovereign will, is the bible of this Court. This Court exists to defend and protect the Constitution. To allow this constitutionally infirm initiative, propelled by deceptively gathered signatures, to alter basic principles in the Constitution is to allow a desecration of the Constitution. To allow such alteration and desecration is to lose this Court's raison d'etre.

WHEREFORE, we DISMISS the petition in G.R. No. 174153. SO ORDERED.

EN BANC
[G.R. No. 127325. June 10, 1997.] MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA ISABEL ONGPIN, petitioners, vs. COMMISSION ON ELECTIONS, JESUS S. DELFIN, ALBERTO PEDROSA & CARMEN PEDROSA, in their capacities as founding members of the People's Initiative for Reforms, Modernization and Action (PIRMA), respondents. SENATOR RAUL S. ROCO, DEMOKRASYAIPAGTANGGOL ANG KONSTITUSYON (DIK), MOVEMENT OF ATTORNEYS FOR BROTHERHOOD INTEGRITY AND NATIONALISM, INC. (MABINI), INTEGRATED BAR OF THE PHILIPPINES (IBP), and LABAN NG DEMOKRATIKONG FILIPINO (LABAN), petitioners-intervenors. Roco Bunag Kapunan & Migallos for movant Raul S. Roco. Atty. Pete Quirino Quadra for respondents Spouses Alberto & Carmen Pedrosa. SYLLABUS DAVIDE, JR., J., separate opinion: 1.CONSTITUTIONAL LAW; JUDICIAL DEPARTMENT; JUDICIAL POWER; SECTION 1, ARTICLE VIII OF THE CONSTITUTION DOES NOT PURPORT TO ENCOMPASS TOTALITY OF JUDICIAL POWER, IT MERELY STATES WHAT THE CONCEPT INCLUDES. Without a doubt, these two issues call for the exercise of judicial power which, unfortunately, the OSG seeks to unduly restrict by its miscomprehension of the second paragraph of Section 1, Article VIII of the Constitution. Said paragraph does not purport to encompass the totality of judicial power; it merely states what the concept includes. The paragraph reads; Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of Government.
SECIcT

2.ID.; DELEGATION OF LEGISLATIVE POWER; LAW WHICH PURPORTS TO DELEGATE A DELEGABLE LEGISLATIVE POWER MAY BE DECLARED UNCONSTITUTIONAL OR INVALID IF IT FAILS TO COMPLY WITH COMPLETENESS AND "SUFFICIENT STANDARD" TESTS; ONLY COURTS IN

THE EXERCISE OF ITS JUDICIAL AUTHORITY CAN DETERMINE IF A STATUTE HAS MET THESE TESTS. Contrary to the claim of the Pedrosas, these two issues do, in fact, raise the issue of the constitutionality of R.A. No. 6735. At its core lays the principle of non-delegation of legislative power and the exceptions thereto, both of which are fixed and invariable subjects of constitutional law (Enrique M. Fernando, The Constitution of the Philippines, second ed. [1977], 161-166; Joaquin Bernas, The 1987 Constitution of the Republic of the Philippines, A Commentary, 1996 ed., 610-618; Thomas M. Cooley, A Treatise on the Constitutional Limitations, Vol. 1, Eight Ed. [1927], 224-247). It has been aptly said that "[t]he problem of delegation of legislative powers like that of separation of legislative powers involves constitutional law rather than statutory construction" (Sutherland on Statutory Construction, Vol. 1, Third Ed. [1943], Sec. 301, p. 54). Since a law may be declared unconstitutional where it delegates nondelegable legislative authority, or that any attempt to do so would be tainted by unconstitutionality (Fernando, op. cit., 161), then a law which purports to delegate a delegable legislative power may also be declared unconstitutional or invalid if it fails to comply with the completeness and "sufficient standard " tests. Only courts, in the exercise of its judicial authority, can determine if a statute has met these tests. (Pelaez v. Auditor General, 122 Phil. 965 [1965]; Edu v. Ericta, 35 SCRA 481 [1970]). By arguing that "the delegation of power to the COMELEC hurdles both the completeness and sufficient standard tests prescribed in Pelaez vs. Auditor General . . .," the Pedrosas admit that a constitutional issue is, indeed, involved. Thus, their assertion to the contrary in their motion for reconsideration is incomprehensible. 3.ID.; ID.; THEORY THAT COMELEC IS VESTED WITH PRIMARY JURISDICTION TO DECLARE INCOMPLETENESS OR INADEQUACY OF R.A. NO. 6735 AND PRIVATE RESPONDENT'S REPORT TO "POLITICAL QUESTION" THEORY ARE OUTLANDISH. We do not then hesitate to state that the stand of the Pedrosas on this point and, we may add, the overbearing conclusion of intervenor Roco that our ruling on the insufficiency of R.A. 6735 "created a third specie of invalid laws, a mongrel type of constitutional but inadequate and, therefore invalid laws," only betray an inability to fully grasp the workings of the principle of non-delegation of legislative powers and exceptions thereto. Only this inability, coupled with the incapacity to fully understand the significance and import of our statement in the Decision that: R.A. No. 6735 is incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned . . . could sire what intervenor Roco baptizes as "third specie of invalid laws" or "mongrel." From the foregoing, the conclusion is inevitable that the theory of the OSG that COMELEC is vested with the primary jurisdiction to declare the incompleteness or inadequacy of R.A. No. 6735, and the Pedrosas' belated resort to the "political question" theory, are outlandish. 4.ID.; ID.; VALIDITY AND ENFORCEABILITY OF A DELEGATION OF RULEMAKING POWER HINGES UPON COMPLIANCE WITH "COMPLETENESS" AND "SUFFICIENT STANDARD" TESTS. Ground V of the OSG's motion and grounds 5

and 6 of the Pedrosas' motion are likewise unfounded. We never held that Congress was guilty of unlawful delegation of legislative power; in fact, we even conceded that "[e]mpowering the COMELEC, an administrative body exercising quasi-judicial functions, to promulgate rules and regulations is a [permissible] form of delegation of legislative authority under No. 5 above." What we said, in plain and simple language, was that R.A. No. 6735 failed to comply with the "completeness" and "sufficient standard" tests, hence Section 20 of R.A. No. 6735 authorizing the COMELEC to promulgate implementing rules could not cure the infirmity. It is settled that the validity and enforceability of a delegation of rule-making power hinges upon compliance with the aforementioned tests.
SaDICE

5.ID.; ID.; COURT CANNOT READ INTO STATUTE NON-EXISTENT PROVISIONS IN ORDER TO MAKE IT COMPLETE AND SET FORTH THEREIN A SUFFICIENT STANDARD THUS VALIDATING DELEGATION OF POWER TO PROMULGATE IMPLEMENTING RULES TO THE COMELEC. Neither may we succumb to the arguments raised in ground 4 of the Pedrosas' motion. Although we recognized that "R.A. No. 6735 was, as its history reveals, intended to cover initiative to propose amendments to the Constitution," we cannot otherwise read into the statute nonexistent provisions in order to make it complete and set forth therein a sufficient standard, and thus validate the delegation of the power to promulgate implementing rules to the COMELEC. To do so would constitute unabashed judicial legislation, an act offensive to the doctrine of separation of powers. 6.ID.; ID.; ISSUE OF DELEGATION OF LEGISLATIVE POWERS IS PROPERLY A SUBJECT OF CONSTITUTIONAL LAW AND NOT STATUTORY CONSTRUCTION. We stated earlier that the issue of delegation of legislative powers is properly a subject of constitutional law, and not statutory construction. In short, our primary task was merely to determine if R.A. No. 6735 "hurdled," to use a word used by the Pedrosas, the "completeness and sufficient standard tests" in the investiture of rulemaking powers to the COMELEC relative to initiative on constitutional amendments. When we then declared it to be inadequate or insufficient in that respect, we simply meant that it failed to "hurdle" the tests. Put differently, the terms incomplete, inadequate and wanting in essential details in our challenged Decision have reference to the "completeness and sufficient standard tests," and to none other. The intent then of the law, which is the concern of statutory construction, is not a sufficient guidepost. This puts to naught for being clearly misplaced, if not irrelevant, the plea that we should give full life to the intent of the law to include initiative on constitutional amendments, as well as the warning that to suppress the intent of the law would be tantamount to determining the wisdom, reasonableness, adequacy or sufficiency of the law, a role exclusively pertaining to the legislature. 7.ID.; AMENDMENTS OR REVISIONS TO THE CONSTITUTION; SYSTEM OF INITIATIVE ON CONSTITUTION UNDER SECTION 2, ARTICLE XVII OF

CONSTITUTION, NOT SELF-EXECUTORY; EXERCISE OF RIGHT THEREUNDER IS DEPENDENT UPON A VALID IMPLEMENTING LAW. As to ground no. 7 of the Pedrosas' motion, we need only stress that the system of initiative on the Constitution under Section 2, Article XVII of the Constitution is not self-executory. The exercise of the right thereunder is dependent upon a valid implementing law. It follows then that any gathering of signatures for initiative on Constitutional amendments would, at this time, be an idle ceremony, an exercise in futility. However, the Pedrosas are not prevented from engaging in that endeavor if they so wish; precisely, we lifted the temporary restraining order as against them. FRANCISCO, J., separate opinion: 1.CONSTITUTIONAL LAW; CONSTITUTION; AMENDMENT AND REVISION; DISSIMILARITIES BETWEEN THE TWO, EXPLAINED. Amendment and revision signify change in the constitutional text. They, nonetheless, have distinct dissimilarities, thus; ". . . An amendment envisages an alteration of one or a few specific provisions of the constitution, and its guiding original intention is to improve specific parts or to add new provisions or to suppress existing ones according as addition or subtraction might be demanded by existing conditions. In revision, however, the guiding intention and plan must contemplate a re-examination of the entire document to determine how and to what extent it should be altered. Whether the end result of the originally intended revision is in fact a total change of the constitution or merely an alteration of key provisions, the end product would still be a revision."

2.ID.; ID.; ID., PRIVATE RESPONDENT'S PROPOSAL IN CASE AT BAR, A MERE AMENDMENT OF THE CONSTITUTION. In the case at bench, I find private respondents' proposal as a mere "amendment" and not a "revision" of the constitution. A cursory reading of private respondents' petition and its attached petition for initiative in the 1987 Constitution filed with the Commission on Elections envisages the alteration of some specific provisions of the constitution all relating to a single subject, i.e., the lifting of the limitation on the term of office of elected government officials. As it appears, the guiding original intention of private respondents is merely to improve on provisions by adding new ones and suppressing some existing parts thereof. There is nothing from the records to indicate that private respondents intended to re-examine the entire 1987 Constitution and determine to what extent should the same be altered. 3.ID.; ID.; ID.; INTENTION AND PLAN OF PRIME MOVERS OF INITIATIVE ON CONSTITUTION IS THE ALTERATION ON TERM OF OFFICE OF ELECTIVE OFFICIALS THUS CONSTITUTING AN AMENDMENT. The foregoing is unequivocal. The guiding intention and plan of the prime movers of the initiative on the constitution is not the re-examination of the entire constitution so as to fall within the

ambit of revision, but an alteration on the term of office of elective officials. Hence, the same pertains to a mere amendment.
CADHcI

4.ID.; ID.; ID.; PROPOSED AMENDMENT APPEARS TO BE AN INNOCUOUS ALTERATION. Moreover, the proposed amendment appears to be an innocuous alteration. In the case at bench, the petition for initiative on the constitution simply deals with the term of office of public officials. This alteration surely is not as intricate and as drastic as what was done with the 1973 Constitution. HERMOSISIMA, J., concurring and dissenting: 1.CONSTITUTIONAL LAW; CONSTITUTION; AMENDMENT AND REVISION; PETITION OF AT LEAST TWELVE PER CENTUM OF THE TOTAL NUMBER OF REGISTERED VOTERS OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PER CENTUM OF REGISTERED VOTERS THEREIN REQUIRED FOR A PEOPLE'S INITIATIVE TO AMEND CONSTITUTION There is no mincing words when it comes to a constitutional prerequisite to the exercise of a right; the Constitution is plain and unequivocal as to what triggers the proceedings for a people's initiative to amend the Constitution only "a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein." Whether the Delfin petition is "a mere request for administrative assistance" or itself already the "Petition for Initiative to Amend the Constitution," it is undisputedly, by praying for the setting of time and dates for the signing of the petition by the required percentage of the registered voters all over the country and for the publication of the "Petition for Initiative on the Constitution," the petition that sets off the mechanism of a people's initiative to amend the Constitution. As the petition that triggers the people's initiative to amend the Constitution, the Delfin petition must be signed by the required percentage of registered voters, or at the least, must contain the names of at least 12% of all the registered voters in the country and then signed by at least one registered voter in behalf of all the signatories, as mandated by the Constitution. We cannot and will never sanction any avoidance of this categorical mandate of the fundamental law of the land. 2.ID.; ID.; ID.; ID.; DELFIN PETITION IN CASE AT BAR, A MERE SCRAP OF PAPER AS IT FAILED TO COMPLY WITH CONSTITUTIONAL REQUIREMENT OF VOTER PERCENTAGE. The Delfin petition having prayed for the setting of the time and dates for the signing of the Petition for Initiative on the 1987 Constitution and for the publication thereof for public consumption, it is the initiatory pleading for purposes of starting the proceedings for a people's initiative to amend the Constitution, which initiatory pleading as such should have contained the names and/or signatures of at least 12% of all the registered voters in the country. As the Delfin petition utterly failed to comply with the constitutional requirement of voter percentage, it is nothing more than

a mere scrap of paper that the Commission on Elections should have, at first glance, in whatever capacity, ignored as surplusage. 3.ID.; ID.; ID; SECTIONS 3(F) AND 5(B) OF R.A. 6735, A SUFFICIENT STANDARD ON THE BASIS OF WHICH THE COMELEC MAY PROCEED TO FORMULATE THE MORE DETAILED REQUIREMENTS OF A PETITION TO AMEND THE CONSTITUTION THROUGH INITIATIVE PROCEEDINGS. It is significant to note, however, that while the majority declared R.A. No. 6735 to be so inadequate as to bar the exercise by the people of their right to amend the Constitution through initiative proceedings, the majority decries the omission by Congress of only one provision an enumeration of the contents of a petition for initiative on the Constitution. It bears repeating, however, that Sections 3 (f) and 5 (b) of R.A. No. 6735, read together, provide that a petition for initiative on the Constitution must contain the proposition and the required number of signatories, which is at least 12% of the total number of registered voters in the country, of which every legislative district should be represented by at least 3% of the voters thereof. Undoubtedly, such constitutes, by any measure, a sufficient standard on the basis of which the Commission on Elections may proceed to formulate the more detailed requirements, if any, of a petition to amend the Constitution through initiative proceedings. 4.ID.; ID.; ID.; FACT THAT R.A. 6735 DOES NOT CONTAIN A SUBTITLE TREATING SOLELY OF THE MATTER OF AN INITIATIVE ON THE CONSTITUTION DOES NOT MAKE A GOOD CASE IN SUPPORT OF MAJORITY'S POSTULATION THAT R.A. 6735 IS INSUFFICIENT FOR SAID PURPOSE. The majority also pointed out that R.A. No. 6735 does not contain a subtitle treating solely of the matter of an initiative on the Constitution, but certainly the mere literal absence of such a subtitle without explicit mention of what particular provisions should be contained under that subtitle, i.e., what "essential terms and conditions" are referred to by the majority as indispensable to make R.A. No. 6735 adequate for purposes of a people's initiative on the Constitution, does not make a good case in support of the majority's postulation that R.A. No. 6735 is insufficient for said purposes. 5.ID.; ID.; ID.; R.A. 6735 SUFFICIENTLY LAID DOWN THE NECESSARY MINIMUM STANDARDS FOR A VALID AND COMPLETE STATUTE NECESSARY TO AMEND THE CONSTITUTION. More importantly, I humbly submit that R.A. No. 6735 does not have to contain every detail conceivable in the matter of initiative proceeding for the amendment of the Constitution and that as it provides for the minimum voter percentage requirement, the essential requisites in the initiatory petition, the five year time limit on the exercise of the right of initiative on the Constitution, the special registration day prior to the plebiscite, and the conduct of signature verification as to the initiatory petition, R.A. No. 6735 sufficiently laid down

the necessary minimum standards for a valid and complete statute treating of the matter of, among others, the initiative proceedings to amend the Constitution. PUNO, J., dissenting: 1.CONSTITUTIONAL LAW; AMENDMENTS OR REVISIONS TO THE CONSTITUTION; SYSTEM OF INITIATIVE AND REFERENDUM; INTENT OF HOUSE OF REPRESENTATIVES AND SENATE IN APPROVING R.A. NO, 6735 IS TO IMPLEMENT PROVISIONS OF CONSTITUTION GIVING PEOPLE THE POWER TO INITIATE AND APPROVE AMENDMENTS TO THE CONSTITUTION. The first overriding concern is the need to recognize the clear intent of Congress in enacting R.A. No. 6735. In my concurring and dissenting opinion, I quoted extensively the deliberations of the members of the House of Representatives on H.B. No. 21505 to stress that their intent was to implement the provisions of the 1987 Constitution giving the people the power to amend our fundamental law thru people's initiative. Petitionerintervenor, Roco, one of the principal authors of H.B. No. 21505, confirmed this intent in all his pleadings in the case at bar. The Conference Committee Report on Senate Bill No. 17/House Bill No. 21505 was unanimously approved by the Senate then led by Senator Jovito Salonga as its President. It cannot be doubted that the intent of the Senate in approving RA No. 6735 is to implement the provisions of the Constitution giving the people the power to initiate and approve amendments to the Constitution. Nor can it be doubted that the Senate installed in RA No. 6735 the procedure to implement this legislative intent. The Senate that approved RA No. 6735 carried the names of some of our more brilliant legal minds, and some of our most experienced hand in bill drafting. It is difficult to believe that these distinguished senators allowed R.A. No. 6735 to be approved when it is so littered with ambiguities as to become incomprehensible, nay, unenforceable. 2.STATUTORY CONSTRUCTION; WHEN A LAW ADMITS OF TWO INTERPRETATIONS, ONE THAT WILL SUSTAIN IT AND ANOTHER THAT WILL INVALIDATE IT, THE INTERPRETATION THAT WILL SAVE THE LAW SHOULD BE ADOPTED. The second overriding concern is the need to comply with our traditional duty to interpret R.A. No. 6735 to effectuate its intent. R.A. No. 6735 represents the wisdom and the will of two co-equal branches of government the Legislative and the Executive. Due respect to these two branches of government demands that we utilize all rules of statutory construction to effectuate R.A. No. 6735. It has been the teaching of this Court for ages that when a law admits of two interpretations, one that will sustain it and another that will invalidate it, the interpretation that will save the law should be adopted. 3.CONSTITUTIONAL LAW; AMENDMENTS OR REVISIONS TO THE CONSTITUTION; SYSTEM OF INITIATIVE AND REFERENDUM; R.A. NO. 6735; MINORITY VIEW THAT R.A. NO. 6735 IS COMPREHENSIBLE ENOUGH TO BE

ENFORCEABLE CANNOT BE DISMISSED AS TOTALLY UNFOUNDED, UNREASONABLE, AND UNREALISTIC. The minority view that R.A. No. 6735 is comprehensible enough to be enforceable cannot be dismissed as totally unfounded, unreasonable, and unrealistic. In truth, the minority view is shared by others whose honesty of motive cannot be assailed. It is shared by the lawmakers who enacted R.A. No. 6735 in compliance with their constitutional duty to the people. It is shared by former President Corazon C. Aquino who signed R.A. No. 6735 into law. And most important, the COMELEC has never wavered in its position that R.A. No. 6735 is not incomprehensible, insufficient or inadequate.
AHECcT

4.ID.; ID.; ID.; ID.; COMELEC MOST AUTHORITATIVE TO DETERMINE WHETHER R.A. NO 6735 IS CLEAR AND ENFORCEABLE. The COMELEC, under the stewardship of then Acting Chairperson Haydee Yorac, understood R.A. No. 6735 without any difficulty. Indeed, the COMELEC promulgated Resolution No. 2300 prescribing the rules and regulations on the conduct of people's initiative to amend the Constitution. It was ready then and it is ready now to implement R.A. No. 6735. More than any department, instrumentality or agency of government, the COMELEC is the most authoritative to determine whether R.A. No. 6735 is clear and enforceable. Article IX (c) (2) of the Constitution gave the COMELEC the exclusive power to "enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall." Its long experience and expertise in enforcing our election laws cannot be doubted and its interpretation of R.A. No. 6735 carries a considerable weight. 5.STATUTORY CONSTRUCTION; INTERPRETATION OF STATUTES; ESTABLISHED RULE THEREIN IS FOR COURTS TO SEEK LEGISLATIVE INTENTION AND GIVE IT EFFECT; INADEQUACY OF A STATUTE IS NOT A GROUND FOR INVALIDATING IT. No reason has been advanced why these provisions cannot be construed to apply to proposed constitutional amendments. No reason has been shown for restrictively and literally construing these provisions as applicable to ordinary legislation only. On the other hand, the established rule in the interpretation of statutes is for courts to seek the legislative intention and give it effect. The inadequacy of a statute is not a ground for invalidating it. Given the lawfulness of the legislative purpose to implement the constitutional provision on initiative to amend the Constitution, it is not for this Court to say how well the statute succeeds in attaining that purpose. "With the wisdom of the policy adopted, with the adequacy or practicality of the law enacted to forward it, the courts are both incompetent and unauthorized to deal." 6.CONSTITUTIONAL LAW; LEGISLATIVE DEPARTMENT; CONGRESS' LAWMAKING POWER; PLENARY IN NATURE. The third overriding concern is the need to avoid the danger of over-checking the power of Congress to make laws which

will put in peril the fundamental principle of separation of powers. The Constitution vested in Congress the power to make laws. The power of Congress to make laws is plenary in nature. The legislature is accorded the widest latitude in lawmaking to meet the fluctuating problems of our people. It cannot be gainsaid that our legislators are more keenly aware of these problems for they are in closer contact with our people. They have better access to facts to solve these problems. They are also expected to respond adequately to our people's problems for they have to account to the people come election day. A more chastened recognition of the policy-making role of Congress should compel this Court to exercise extreme care and caution before imposing any new limitation on its power to make laws. 7.CONSTITUTIONAL LAW; JUDICIAL DEPARTMENT; JUDICIAL POWER; COURTS HAVE AUTHORITY TO FINALLY DETERMINE WHAT ARE THE RESPECTIVE POWERS OF THE DIFFERENT DEPARTMENTS OF GOVERNMENT. From time immemorial, courts have only invalidated was I that offend the Constitution. The limits of the judicial power to invalidate laws are no longer open to doubt and debate. In this jurisdiction, as early as 1927 in the seminal case of Government v. Springer, Mr. Justice Johnson's concurring opinion authoritatively laid down its metes and bounds, thus: ". . . "It is conceded by all of the eminent authorities upon constitutional law that the courts have authority to finally determine what are the respective powers of the different departments of government. The question of the validity of every statute is first determined by the legislative department of the Government, and the courts will resolve every presumption in favor of its validity. Courts are not justified in adjudging a statute invalid in the face of the conclusions of the legislature, when the question of its validity is at all doubtful. The courts will assume that the validity of a statute was fully considered by the legislature when adopted. Courts will not presume a statute invalid unless it clearly appears that it falls within some of the inhibitions of the fundamental laws of the state. The wisdom or advisability of a particular statute is not a question for the courts to determine. If a particular statute is within the constitutional power of the legislature to enact, it should be sustained whether the courts agree or not in the wisdom of its enactment. If the statute covers subjects not authorized by the fundamental laws of the land, or by the constitution, then the courts are not only authorized but are justified in pronouncing the same illegal and void, no matter how wise or beneficient such legislation may seem to be. Courts are not justified in measuring their opinions with the opinion of the legislative department of the government, as expressed in statutes, upon questions of the wisdom, justice and advisability of a particular law. In exercising the high authority conferred upon the courts to pronounce valid or invalid a particular statute, they are only the administrators of the public will, as expressed in the fundamental law of the land. If an act of the legislature is to be held illegal, it is not because the judges have any control over the legislative power, but because the act is forbidden by the fundamental law of the land and because the will of the people, as declared in such fundamental law, is paramount and must be obeyed, even by the legislature. In pronouncing a statute illegal, the courts are simply interpreting

the meaning, force, and application of the fundamental law of the state." (Case vs. Board of Health and Heiser, 24 Phil. 250, 251.) 8.ID.; AMENDMENTS OR REVISIONS TO THE CONSTITUTION; SYSTEM OF INITIATIVE AND REFERENDUM; R.A. N0. 6735; WITHIN THE COMPASS OF THE POWER OF CONGRESS TO LEGISLATE. In the case at bar, R.A. No. 6735 is not assailed by the majority as unconstitutional for failure of Congress to follow the substantive requirements of lawmaking. It even concedes that Congress enacted the law in compliance with its duty to implement the provision of the Constitution granting the people the right to amend our fundamental law thru people's initiative. It goes without saying that the subject matter of R.A. No. 6735 is within the compass of the power of Congress to legislate. Nor does the majority strike down R.A. No. 6735 on the ground that Congress breached any of the formal procedural steps in enacting a law. Since it is uncontested that Congress did not violate any of the substantive or formal requirements of lawmaking in enacting R.A. No. 6735, this Court has no option but to effectuate the same. This is our consistent stance in the past. There is no reason to be inconsistent now. 9.ID.; LEGISLATIVE DEPARTMENT; CONGRESS' LAW-MAKING POWER; SCOPE AND PURPOSE THEREOF, EXPLAINED. In letting loose this "mongrel" type of invalid laws, the Court has over-extended its checking power against Congress. This mongrel endangers the principle of separation of powers, a touchstone of our Constitution. The power of Congress to make laws includes the power how to write laws. The court has the power to review the constitutionality of laws but it has no authority to act as if it is the committee on style of Congress. The Court has the power to interpret laws but the principal purpose in exercising this power is to discover and enforce legislative intent. We should heed the warning of Crawford that if courts ignore the intent of the legislative, they would invade the legislative sphere and violate the tripartite theory of government. The balance of power among the executive, legislative and judicial branches of our government was fixed with pinpoint precision by the framers of our fundamental law. The Constitution did not give the Court the power to alter this balance especially to alter it in its favor. Unless allowed by the Constitution, a non-elected court cannot assume powers which will make it more than the equal of an elected legislature or an elected executive. 10.ID.; CONSTITUTION; ESSENTIAL PARTS OF A GOOD WRITTEN CONSTITUTION. The fourth overriding concern is the need to enforce the new provision of the Constitution giving our people a direct, participatory role in its amendment. It is almost trite to state that a good written Constitution has three essential part. The first provides the framework of government; the second defines and protects the rights of the people against government intrusion; and the third prescribes the procedure of its amendment.

11.ID.; AMENDMENTS OR REVISIONS TO THE CONSTITUTION; R.A. NO. 6735 SHOULD BE INTERPRETED LIBERALLY. The importance of our constitutional provision on amendment cannot be overemphasized. Apropos is the reminder of Mr. Justice Frankfurter that a constitution is an enduring framework of government for a dynamic society and not a code of lifeless forms. For a constitution to be a living law, it ought to be flexible in order to meet the variegated needs of the people as time and circumstance dictate. A constitution cannot be beyond the touch of change for the vision of its framers cannot always pierce the veil of the future. To be unremittingly relevant, every constitution provides a procedure on how it can be amended. The amendatory provision of our Constitution is thus its safety valve for change without confrontation, for progress without violence. It is our duty to be liberal in interpreting this amendatory provision, for if our Constitution fails to take care of the troubles of tomorrow it will become the sarcophagus of our people's aspirations. The same liberal spirit should guide us in interpreting R.A. No. 6735 for its purpose is to allow our people to initiate amendments to our Constitution to meet their changing needs.
CSaITD

12.ID.; ID.; NO PROPOSITION BEFORE THE COURT LIFTING ANY TERM LIMIT OF OUR ELECTED OFFICIALS. Petitioners and other intervenors also assail the proposition lifting the term limits of our elected officials as an unfit subject of a people's initiative to amend the Constitution. They contend that the proposition will involve a revision of the constitution and not merely its amendment. There is no necessity to resolve this particular issue. The Court has unanimously ordered the COMELEC to dismiss the Delfin petition. Thus, there is no proposition before the Court lifting any term limit of our elected officials. Any ruling on the issue will be no more than an advisory opinion which cannot be rendered by this Court.

RESOLUTION

The Court En Banc considered the motions for reconsideration of its Decision of 19 March 1997, separately filed by the Office of the Solicitor General for public respondent Commission on Elections, private respondents Alberto and Carmen Pedrosa and private respondent Jesus Delfin, et al., in relation to the oppositions thereto filed by the petitioners and intervenors Demokrasya-Ipagtanggol Ang Konstitusyon (DIK) and Movement of Attorneys for Brotherhood, Integrity and Nationalism, Inc. (MABINI), Raul Roco, Laban ng Demokratikong Pilipino (LABAN), and Integrated Bar of the Philippines (IBP). Two Members of the Court did not take part in the deliberations: Padilla, J., who is on sick leave and who, in any case, had from the outset inhibited himself from taking part in the cases at bar on account of his personal relationship with

the attorney of one of the parties; and Torres, J., who inhibited himself from participation in the deliberations for the reasons set forth in his separate Opinion hereto attached. The remaining Justices actually present thereafter voted on the issue of whether the motions for reconsideration should be granted or not, with the following results: Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, and Kapunan, JJ., voted to DENY said motions for lack of merit; and Melo, Puno, Mendoza, Francisco, Hermosisima and Panganiban, JJ, voted to GRANT the same. Vitug, J., maintained his opinion that the matter was not ripe for judicial adjudication.
DcTSHa

Thirteen (13) Members having taken part in the deliberations, and only six (6) having voted to grant the motions for reconsideration, said motions should be as they are hereby DENIED WITH FINALITY, the arguments therein set forth not being sufficient cogency to persuade the requisite majority of the Court to modify or reverse the Decision of 19 March 1997. The separate opinions of Davide, Puno, Francisco and Hermosisima, JJ., are also hereto attached.

Separate Opinions
DAVIDE, JR., J., separate opinion: This treats of the motions for the reconsideration of our decision of 19 March 1997 filed separately by the private respondents Alberto and Carmen Pedrosa, the Office of the Solicitor General for the public respondent COMELEC and by private respondent Jesus Delfin. The Pedrosas raised the following "jurisdictional and constitutional grounds" in support of their motion: 1.THE CONSTITUTIONALITY OF R.A. 6735 NOT HAVING BEEN DRAWN INTO ISSUE IN THIS CASE. THE HONORABLE COURT OVERSTEPPED CONSTITUTIONAL BOUNDARIES WHEN IT PROCEEDED TO EXERCISE THE POWER OF JUDICIAL REVIEW. 2.THE HONORABLE COURT VIOLATED THE DOCTRINE OF SEPARATION OF POWERS WHEN IT CONDEMNED R.A. NO. 6735 AS FATALLY FLAWED ON GROUNDS OTHER THAN CONSTITUTIONAL INFIRMITY.

3.THE ADEQUACY OR SUFFICIENCY OF R.A. NO. 6735 AS A LEGISLATIVE MEASURE TO IMPLEMENT SECTION 2, ARTICLE XVII OF THE CONSTITUTION IS A POLITICAL QUESTION NOT REVIEWABLE BY THIS HONORABLE COURT. 4.HAVING OPENLY RECOGNIZED THE LEGISLATIVE INTENT OF R.A. NO. 6735 AS EMBRACING THE PEOPLE'S INITIATIVE TO AMEND THE CONSTITUTION, THE HONORABLE COURT HAS THE CONSTITUTIONAL DUTY TO EFFECTUATE, AND NOT TO DEFEAT, SUCH LEGISLATIVE INTENT. 5.SECTION 20 OF R.A. 6735 EMPOWERING THE COMMISSION ON ELECTIONS TO "PROMULGATE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PURPOSES OF THIS ACT" DOES NOT CONSTITUTE UNDUE DELEGATION OF LEGISLATIVE POWER. 6.MOREOVER, THE PROVISIONS OF COMELEC RESOLUTION 2300 MERELY REPRODUCE THE PROCEDURES OF INITIATIVE ON THE CONSTITUTION ALREADY DEFINED UNDER R.A. 6735. THE PROCEDURES WERE NOT LEGISLATED BY COMELEC RESOLUTION 2300. R.A. 6735 INSTALLED THE PROVISIONS. 7.THE RIGHT OF PRIVATE RESPONDENTS ALBERTO AND CARMEN PEDROSA TO CONDUCT A SIGNATURE DRIVE FOR PEOPLE'S INITIATIVE IS A RIGHT GRANTED BY THE CONSTITUTION AND CANNOT THEREFORE BE ENJOINED. The OSG, on its part, argued in this wise: I.REPUBLIC ACT NO. 6735 CAN NOT BE DECLARED INEFFECTIVE BECAUSE OF THE COURT'S PERCEPTION THAT IT IS INCOMPLETE, INADEQUATE OR WANTING IN ESSENTIAL TERMS AND CONDITIONS. II.ASSUMING REPUBLIC ACT NO. 6735 CAN BE DECLARED INEFFECTIVE ON THE GROUND THAT IT IS INCOMPLETE, INADEQUATE OR IT LACKS ESSENTIAL TERMS AND CONDITIONS, IT IS THE COMMISSION ON ELECTIONS

THAT SHOULD DO SO UNDER THE DOCTRINE OF PRIMARY JURISDICTION. III.THE DECISION UNDULY RESTRICTED THE SCOPE OF SECTION 2, ARTICLE XVII OF THE CONSTITUTION WHEN IT HELD THAT THE IMPLEMENTING LAW MUST CONTAIN "DETAILS FOR CARRYING OUT INITIATIVE ON THE CONSTITUTION." IV.REPUBLIC ACT NO. 6735 IS SUFFICIENT AND ADEQUATE TO IMPLEMENT SECTION 2, ARTICLE XVII OF THE CONSTITUTION. VCONGRESS IS NOT GUILTY OF UNLAWFUL DELEGATION OF POWER. Respondent Jesus Delfin, who thought it imperative to file his motion to open "the door to where the weight of the Dissenting Opinions may yet move the Honorable Justices in the Majority, to reconsider their stand against the adequacy of R.A. No. 6735, especially," limited the grounds of his motion to the following: I.THAT, COMELEC RESOLUTION NO. 2300 CANNOT BE VOIDED UNDER CIRCUMSTANCES OF THIS CASE. II.THAT, R.A. NO. 6735, AS INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE ON AMENDMENTS TO THE CONSTITUTION, ADEQUATELY COVERS THE SYSTEM. III.THAT, COMELEC DID NOT ACT WITHOUT OR IN EXCESS OF ITS AUTHORITY.
DHcSIT

In the Resolution of 22 April 1997, we required petitioners and intervenors to file their separate consolidated comments to these motions for reconsideration. In their consolidated comments, petitioners urge us to deny the motions for reconsideration, contending: I Respondents' motion for reconsideration do not raise new issues and should be dismissed for being pro forma II

A people's initiative to lift term limits is not an amendment, but a revision of the entire Constitution III This Honorable Court's ruling on the inadequacy of Republic Act No. 6735 to cover a Constitutional Initiative is a valid exercise of the Power of Judicial Review and is not a political question IV Republic Act No. 6735 is not the enabling act referred to by the Constitution to Implement a Constitutional Initiative since it contradicts major provisions of the Constitution on a Constitutional initiative V The assumption of jurisdiction of the Supreme Court of this petition despite a pending petition in the Commission on Elections is valid VI Comelec Resolution No. 2300 is void for being an undue delegation of legislative powers. In their consolidated comment filed on 9 May 1997, intervenors DemokrasyaIpagtanggol ang Konstitusyon (DIK) and Movement of Attorneys for Brotherhood Integrity and Nationalism (MABINI) tendered but "one response" to the five grounds enumerated by the Office of the Solicitor General, viz., "the law is inadequate and the delegation was insufficient;" and "to say that the law is inadequate is just another way of saying that no sufficient standards of delegation were set by the fallible lawmaker and courts cannot supply that lack," thus this Court properly declared the law incomplete. They further contended that since the law provided no sufficient standards for a valid delegation of power, COMELEC could not remedy the deficiency; neither did it have the authority to legislate the procedure for the people's initiative on Constitutional amendments. Finally they claimed that "the complex proposal of lifting term limits overhauls a basic philosophy of the Constitution, effecting the policy of no re-election, and possibly, the synchronization of elections, and the proscription of dynasties and increasing one's pay while in public-office . . . which can only be threshed out in a deliberative constituent assembly or convention, not in a popular initiative." In his consolidated comment likewise filed on 9 May 1997, intervenor Raul S. Roco characterized our directive that COMELEC dismiss the Delfin Petition as upholding the

Rule of Law "in its full majesty," and deemed our "decisive pronouncement on the jurisdictional issue" as an affirmance of "the correct state of law." However, he disagreed with our ruling that R.A. No. 6735 was inadequate and ineffective, and urged us to reexamine the same because it is "restrictive and all too-sweeping." He submitted that the law "merely repeated, as it was in implementation of the Constitution;" that the consensus in the CONCOM that the initiative process be made "more rigorous and difficult" pertained only to the signature requirements; that Congress was justified in delegating the rule-making powers to the COMELEC, especially as the latter's law-making powers were derived from the Constitution itself, as recognized in Gallardo v. Tabamo (218 SCRA 252 [1993]); and that "in refusing to effectuate R.A. No. 6735 because of its perceived insufficiency or incompleteness," we have "created a third specie of invalid laws, a mongrel type of constitutional but inadequate and, therefore, invalid law." In its consolidated comment; intervenor Laban ng Demokratikong Pilipino (LABAN) enumerated grounds in support of its opposition to the motions for reconsideration: I UNDER THE PROVISIONS OF THE 1973 CONSTITUTION THE HONORABLE SUPREME COURT VALIDLY EXERCISED ITS JURISDICTION IN TAKING COGNIZANCE OF THE SUBJECT PETITIONS FOR PROHIBITION AND EXERCISING PRIMARY JURISDICTION OVER THE SAME
DcCIAa

II THE HONORABLE SUPREME COURT'S RULING THAT RA 6735 IS INSUFFICIENT AND DEFECTIVE AND THEREFORE CANNOT BE THE VALID SOURCE OF SUBORDINATE LEGISLATION NOR A VALID BASIS FOR A PETITION FOR A PEOPLE'S INITIATIVE TO AMEND THE CONSTITUTION IS INADEQUATELY JUSTIFIED BY THE RIGOROUS REQUIREMENTS FOR AMENDMENTS TO THE CONSTITUTION, AS MANDATED BY THE 1987 CONSTITUTION ITSELF. III THE PETITION FILED BY PRIVATE RESPONDENT DELFIN IS DEVOID OF ANY CAUSE OF ACTION NOT HAVING COMPLIED WITH THE SPECIFIC 12% SIGNATORY REQUIREMENTS LAID DOWN IN SECTION 2 OF ARTICLE XVII OF THE 1987 CONSTITUTION, THUS THE HONORABLE SUPREME COURT WAS CORRECT IN PROHIBITING COMELEC FROM TAKING COGNIZANCE OF HIS PETITION.

Finally, in its consolidated comment, intervenor Integrated Bar of the Philippines (IBP) moved for the denial of the motions for reconsideration, contending that the arguments in support thereof were but a mere rehash of those already raised and no compelling argument had been presented to justify a reversal of the 19 March 1997 decision; that the Court's judicial power, encompassing as it does the power to declare laws unconstitutional, likewise includes the power to declare a statute incomplete; and that Section 8 of R.A. No. 6735, in setting the initiative or referendum at not earlier than 45 days but not later than 90 days from the determination by the COMELEC of the sufficiency of the petition, contradicts the mandatory period of not earlier than 60 days nor later than 90 days as set forth in Section 4 of Article XVII of the Constitution. Before coming to grips with the arguments raised in the motions for reconsideration, certain observations must initially be made on petitioners' insistence in their consolidated comment that the Delfin proposals cannot be the subject of initiative since they would involve revision, of not mere amendments to the Constitution; and on intervenor Roco's plea that we re-examine our ruling that insofar as initiative on Constitutional amendments is concerned, R.A. No. 6735 is inadequate and, therefore, ineffective. Our 19 March 1997 decision considered premature any discussion on and resolution of the issue of whether or not lifting term limits constituted a revision of or mere amendment to the Constitution considering our holding that R.A. No. 6735 was inadequate or insufficient and therefore, ineffective; and that COMELEC Resolution No. 2300 was void insofar as its provisions on initiative on Constitutional amendments were concerned. The latter ruling simply meant that the Delfin Petition filed with the COMELEC was devoid of legal basis. A resolution then on whether the proposals for initiative contained therein, i.e., the lifting of term limits for certain elective officials, would involve revision of or merely amendments to the Constitution would be for the nonce an exercise in futility or a rendition of a declaratory judgment. We rule on that issue at an appropriate time. In any event, these grievances of petitioners and intervenor Roco could have been the subject of a motion for reconsideration. Unfortunately, since none of them sought reconsideration within the reglementary period, the decision of 19 March 1997 had long become final as to them. They cannot be heard on said grievances nor permitted to obtain a partial reconsideration of the decision by way of the motions for reconsideration filed by the adverse parties. We now take up the grounds in the motions for reconsideration. I The arguments in support of grounds III and IV of the OSG's motion; grounds 5 and 6 of the Pedrosa's motion; and grounds I, II and III of Delfin's motion, are not new. Except for the apparent attempt to recast their arguments in a different light and language, said arguments are mere reiterations of those previously raised.

II Grounds I and II of the OSG's motion; and grounds 1, 2 and 3 of the Pedrosa's motion, admittedly, present novel theories. However, movants conveniently overlooked that during the 23 January 1997 hearing of this case, they acceded, unqualifiedly, to a discussion on the first two issues in this case, viz.: 1.Whether R.A. No. 6735, entitled An Act Providing for the System of Initiative and Referendum and Appropriating Funds Therefor, was intended to include or cover initiative on amendments to the Constitution; and if so, whether the Act, as worded, adequately covers such initiative. 2.Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and Regulations Governing the Conduct of Initiative on the Constitution, and Initiative and Referendum on National and Local Laws) regarding the conduct of initiative on amendments to the Constitution is valid, considering the absence in the law of specific provisions on the conduct of such initiative. Thereafter, they vigorously argued their case within the parameters of these issues, expounding thereon with all the spirit and vigor that their knowledge of constitutional law and mastery of language could summon.
cTADCH

Without a doubt, these two issues call for the exercise of judicial power, which, unfortunately, the OSG seeks to unduly restrict by its miscomprehension of the second paragraph of Section 1, Article VIII of the Constitution. Said paragraph does not purport to encompass the totality of judicial power; it merely states what the concept includes. The paragraph reads:
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

Contrary to the claim of the Pedrosas, these two issues do, in fact, raise the issue of the constitutionality of R.A. No. 6735. At its core lays the principle of non-delegation of legislative power and the exceptions thereto, both of which are fixed and invariable subjects of constitutional law (Enrique M. Fernando, The Constitution of the Philippines, second ed. [1977], 161-166; Joaquin Bernas, The 1987 Constitution of the Republic of the Philippines. A Commentary, 1996 ed., 610-618; Thomas M. Cooley. A Treatise on the Constitutional Limitations, Vol. 1, Eight Ed. [1927], 224-247). It has been aptly said that "[t]he problem of delegation of legislative powers like that of separation of powers

involves constitutional law rather than statutory construction" (Sutherland on Statutory Construction, Vol. 1 Third Ed. [1943], Sec. 301, p. 54). Since a law may be declared unconstitutional where it delegates non-delegable legislative authority, or that any attempt to do so would be tainted by unconstitutionality (Fernando, op. cit., 161), then a law which purports to delegate a delegable legislative power may also be declared unconstitutional or invalid if it fails to comply with the completeness and "sufficient standard" tests. Only courts, in the exercise of its judicial authority, can determine if a statute has met these tests. (Pelaez v. Auditor General, 122 Phil. 965 [1965]; Edu v. Ericta, 35 SCRA 481 [1970]). By arguing that "the delegation of power to the COMELEC hurdles both the completeness and sufficient standard tests prescribed in Pelaez vs. Auditor General . . . ," the Pedrosas admit that a constitutional issue is, indeed, involved. Thus, their assertion to the contrary in their motion for reconsideration is incomprehensible. We do not then hesitate to state that the stand of the Pedrosas on this point and, we may add, the overbearing conclusion of intervenor Roco that our ruling on the insufficiency of R.A. No. 6735 "created a third specie of invalid laws, a mongrel type of constitutional but inadequate and, therefore invalid laws," only betray an inability to fully grasp the workings of the principle of non-delegation of legislative powers and exceptions thereto. Only this inability, coupled with the incapacity to fully understand the significance and import of our statement in the Decision that:
R.A. No. 6735 is incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. ...

could sire what intervenor Roco baptizes as "third specie of invalid laws" or "mongrel." From the foregoing, the conclusion is inevitable that the theory of the OSG that COMELEC is vested with the primary jurisdiction to declare the incompleteness or inadequacy of R.A. No. 6735, and the Pedrosas' belated resort to the "political question" theory, are outlandish. III Ground V of the OSG's motion and grounds 5 and 6 of the Pedrosas' motion are likewise unfounded. We never held that Congress was guilty of unlawful delegation of legislative power; in fact we even conceded that "[e]mpowering the COMELEC, an administrative body exercising quasi-judicial functions, to promulgate rules and regulations is a [permissible] form of delegation of legislative authority under No. 5 above." What we said, in plain and simple language, was that R.A. No. 6735 failed to comply with the "completeness" and "sufficient standard" tests, hence Section 20 of R.A. No. 6735 authorizing the COMELEC to promulgate implementing rules could not cure the

infirmity. It is settled that the validity and enforceability of a delegation of rule-making power hinges upon compliance with the aforementioned tests. IV Neither may we succumb to the arguments raised in ground 4 of the Pedrosas' motion. Although we recognized that "R.A. No. 6735 was, as its history reveals, intended to cover initiative to propose amendments to the Constitution," we cannot otherwise read into the statute non-existent provisions in order to make it complete and set forth therein a sufficient standard, and thus validate the delegation of the power to promulgate implementing rules to the COMELEC. To do so would constitute unabashed judicial legislation, an act offensive to the doctrine of separation of powers. We stated earlier that the issue of delegation of legislative powers is properly a subject of constitutional law, and not statutory construction. In short, our primary task was merely to determine if R.A. No. 6735 "hurdled," to use a word used by the Pedrosas, the "completeness and sufficient standard tests" in the investiture of rule-making powers to the COMELEC relative to initiative on constitutional amendments. When we then declared it to be inadequate or insufficient in that respect, we simply meant that it failed to "hurdle" the tests. Put differently, the terms incomplete, inadequate and wanting in essential details in our challenged Decision have reference to the "completeness and sufficient standard tests," and to none other. The intent then of the law, which is the concern of statutory construction, is not a sufficient guidepost. This puts to naught for being clearly misplaced, if not irrelevant, the plea that we should give full life to the intent of the law to include initiative on constitutional amendments, as well as the warning that to suppress the intent of the law would be tantamount to determining the wisdom, reasonableness, adequacy or sufficiency of the law, a role exclusively pertaining to the legislature. Accordingly, Nebbia v. New York (291 U.S. 507, 537, 78 L. Ed. 940, 957 [1934]) and Government v. Springer, (50 Phil. 259 [1927]), cited by Mr. Justice Reynato S. Puno in his Separate Opinion, are inapplicable. Nebbia involved a New York law establishing a Milk Control Board with the power, among other things, to "fix minimum and maximum retail prices to be charged by stores to consumers for consumption off the premises where sold," and was challenged under the equal protection and due process clauses of the Constitution. While as regards Springer, simply, it did not involve non-delegation of legislative powers and the tests for permissible exceptions thereto.

The plea then that we hearken to the intent of R.A. No. 6735 in dealing with initiative on constitutional amendments, or that we apply a liberal construction to give life to an intent not so expressed in the statute as passed, is but a ploy to tempt us to engage in judicial legislation.

The vociferous claim of the sponsor of the bicameral conference committee report that the consolidated bill covers the initiative on constitutional amendments would likewise prove unavailing. Such only proved that the intent was present at the outset, however, it did not answer the question of whether the bill, as passed, was complete and contained a sufficient standard for a valid exercise of subordinate legislation by the COMELEC. Whether it did could best be resolved by the provisions of the bill which became R.A. No. 6735. Res ipsa loquitur. If by its provisions the bill or law is inadequate or insufficient with regard to initiative on constitutional amendments because it failed to comply with the "completeness and sufficient standard tests" one thousand or more seraphs and cherubs heralding otherwise would be for naught.
cIDHSC

V As to ground no. 7 of the Pedrosas' motion, we need only stress that the system of initiative on the Constitution under Section 2, Article XVII of the Constitution is not selfexecutory. The exercise of the right thereunder is dependent upon a valid implementing law. It follows then that any gathering of signatures for initiative on Constitutional amendments would, at this time, be an idle ceremony, an exercise in futility. However, the Pedrosas are not prevented from engaging in that endeavor if they so wish; precisely, we lifted the temporary restraining order as against them. Finally, to refute the charge of the OSG in the prefatory statement of its motion, and that of the Pedrosas in their discussion on ground no. 4, that we committed a "terrible volteface" or "complete turnabout," respectively, from our unanimous decision in Subic Bay Metropolitan Authority v. COMELEC, et al. (G.R. No. 125416, 26 September 1996), it must be pointed out that said case did not involve initiative on amendments to the Constitution and, logically, did not rule as it could not, for obvious reasons on the sufficiency of R.A. No. 6735 insofar as initiative on amendments to the Constitution is concerned. The charge then is palpably groundless. I vote then to DENY for utter want of merit, the motions for reconsideration filed by the Office of the Solicitor General, private respondents Alberto and Carmen Pedrosa and private respondent Jesus Delfin. This denial is FINAL. PUNO, J., separate opinion: For resolution are the motions for reconsideration of our Decision dated March 19, 1997 filed by the respondents COMELEC, the spouses Pedrosa and Jesus Delfin. The dispositive portion of our Decision states:
"WHEREFORE, judgment is hereby rendered: a.Granting the instant petition;

b.Declaring RA No. 6735 inadequate to cover the system of initiative on amendments to the Constitution, and to have failed to provide the sufficient standard for subordinate legislation; c.Declaring void those parts of Resolution No. 2300 of the COMELEC prescribing rules and regulations on the conduct of initiative or amendments to the Constitution; and d.Ordering the COMELEC to forthwith dismiss the Delfin petition. The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the COMMISSION but is lifted as against private respondents."

The respondent COMELEC, thru the Solicitor General, invoked the following grounds for reconsideration:
"1.Republic Act No. 6735 cannot be declared ineffective because of the Court's perception that it is incomplete, inadequate or wanting in essential terms and conditions; 2.Assuming Republic Act No. 6735 can be declared ineffective on the ground that it is incomplete, inadequate or it lacks essential terms and conditions, it is the COMELEC that should do so under the doctrine of primary jurisdiction. 3.The Decision unduly restricted the scope of Section 2, Article XVII of the Constitution when it held that the implementing law must contain details for carrying out initiative on the Constitution. 4.Republic Act No. 6735 is sufficient and adequate to implement Section 2, Article XVII of the Constitution. 5.Congress is not guilty of unlawful delegation of power."

The spouses Pedrosa advanced the following arguments in support of their motion for reconsideration:
"1.The constitutionality of R.A. No. 6735 not having been drawn into issue in this case, the Honorable Court overstepped constitutional boundaries when it proceeded to exercise the power of judicial review. 2.The Honorable Court violated the doctrine of separation of powers when it condemned R.A. No. 6735 as fatally flawed on ground other than constitutional infirmity.

3.The adequacy or sufficiency of R.A. No. 6735 as a legislative measure to implement Section 2, Article XVII of the Constitution is a political question not reviewable by this Honorable Court. 4.Having openly recognized the legislative intent of R.A. No. 6735 as embracing the people's initiative to amend the Constitution, the Honorable Court has the constitutional duty to effectuate, and not defeat such legislative intent. 5.Section 20 of R.A. 6735 empowering the COMELEC to `promulgate such rules and regulations as may be necessary to carry out the purposes of this Act' does not constitute undue delegation of legislative power. 6.Moreover, the provisions of COMELEC Resolution 2300 merely reproduce the procedures of initiative on the Constitution already defined under R.A. 6735. The procedures were not legislated by COMELEC Resolution 2300. R.A. 6735 installed the provisions. 7.The right of private respondents Alberto and Carmen Pedrosa to conduct a signature drive for people's initiative is a right granted by the Constitution and cannot therefore be enjoined."
DEIHSa

Respondent Delfin submitted the following arguments in his motion for reconsideration:
"1.That, COMELEC Resolution No. 2300 cannot be voided under circumstances of this case. 2.That, R.A. No. 6735, as intended to include the system of initiative on amendments to the Constitution, adequately covers the system. 3.That, COMELEC did not act without or in excess of its authority."

On April 22, 1997, the Court required the petitioners and the petitioners-intervenors to file their consolidated comments on the motions for reconsideration. Petitioners Santiago, Padilla and Ongpin prayed for the denial of the motions for reconsideration on the following grounds:
"1.Respondents' motions for reconsideration do not raise new issues and should be dismissed for being pro-forma. 2.A people's initiative to lift term limits is not an amendment, but a revision of the entire Constitution.

3.The Honorable Court's ruling on the inadequacy of Republic Act No. 6735 to cover a constitutional initiative is a valid exercise of the power of judicial review and is not a political question. 4.Republic Act No. 6735 is not the enabling law referred to by the Constitution to implement the constitutional initiative since it contradicts major provisions of the Constitution on a constitutional initiative. 5.The assumption of jurisdiction of the Supreme Court on this petition despite a pending petition in the COMELEC is valid. 6.COMELEC Resolution No. 2300 is void for being an undue delegation of legislative powers. 7.The exercise of the right to a people's initiative to amend the Constitution should be prospective and cannot be used to extend term limits of incumbent public officials."

Petitioners-intervenors, Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and Movement of Attorneys for Brotherhood, Integrity and Nationalism (MABINI) also opposed the motions for reconsideration. They maintained that R.A. No. 6735 is inadequate and its delegation of power to COMELEC to promulgate rules is insufficient. They defended the power of this Court to resolve the case at bar without deferring to the primary jurisdiction of the COMELEC in view of the importance of the issues posed by the parties. They reiterated their stand that the proposition lifting the term limits of our elected officials requires a revision of the Constitution. Petitioner-intervenor, Laban ng Demokratikong Pilipino (LABAN), likewise, moved for the denial of the motions for reconsideration, They contended:
"1.Under the provisions of the 1973 Constitution the Honorable Supreme Court validly exercised its jurisdiction in taking cognizance of the subject petitions for prohibition and exercising primary jurisdiction over the same. 2.The Honorable Supreme Court's ruling that R.A. 6735 is insufficient and defective and therefore cannot be the valid source of subordinate legislation nor a valid basis for a petition for a people's initiative to amend the Constitution is adequately justified by the rigorous requirements for amendments to the Constitution, as mandated by the 1987 Constitution itself. 3.The petition filed by private respondent Delfin is devoid of any cause of action not having complied with the specific 12% signatory requirements laid down in Section 2 of Article XVII of the 1987 Constitution. Thus, the Honorable Supreme Court was correct in prohibiting COMELEC from taking cognizance of his petition."

Petitioner-intervenor Roco partly joined the petitioners and the other intervenors. Roco opined that the Court correctly ordered the dismissal of the Delfin petition for failure to comply with the requirements of R.A. No. 6735. Roco, however, urged the majority to reexamine its ". . . restrictive and all too sweeping judgment that R.A. No. 6735, which was intended to cover initiative or the Constitution, is `inadequate' and, therefore, ineffective." Petitioner-intervenor Integrated Bar of the Philippines moved for the denial of the motions for reconsideration. It claimed that the motions raised no new facts and no new issues. The case at bar bristles with constitutional significance. At its core is the proper interpretation of R.A. No. 6735, enacted by the first Congress after the EDSA revolution, to implement the provisions of our Constitution empowering the people with the new right to directly amend the Constitution thru people's initiative. The sharply divided vote of the Court mirrors its difficulty when it first resolved the case at bar.

The motions for reconsideration have rekindled the embers of debate on charter change within and without the Court. The motions are not pro forma for the movants have raised new and vital issues. For one, the movants have challenged the jurisdiction of this Court to resolve what they perceive as a political question. For another, the movants joined by intervenor Roco, contend that the Court cannot refuse to effectuate laws if they do not violate the Constitution. In effect, they contend that the majority has expanded the limits of the Court's power of judicial review. It has also allegedly altered the traditional line separating legislative and judicial powers and has tilted our delicate system of check and balance too much in favor of the judiciary. They call the Court's attention to the danger of "judicial dictatorship." In fine, the correct interpretation of the meaning and nuances of R.A. No. 6735 carries high impact effects on the sovereign right of our people, the fundamental principle of separation of powers and the capacity of our Constitution to be a living law. The seriousness and significance of these contentions induced the Court to give the motions for reconsideration what a jurist has dubbed as the "sobering second thought." Consistent with my prior stand, I vote to partially grant the motions for reconsideration that seek a modification of our decision holding that "R.A. No. 6735 is incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution in concerned" and "declaring void those parts of Resolution No. 2300 of the COMELEC prescribing rules and regulations on the conduct of the initiative or amendment to the Constitution."
IAcDET

With due respect to all, I proffer the following catalogue of concerns:

I The first overriding concern is the need to recognize the clear intent of Congress in enacting R.A. No. 6735. In my concurring and dissenting opinion, I quoted extensively the deliberations of the members of the House of Representatives on H.B. No. 21505 to stress that their intent was to implement the provisions of the 1987 Constitution giving the people the power to amend our fundamental law thru people's initiative. Petitionerintervenor, Roco, one of the principal authors of H.B. No. 21505, confirmed this intent in all his pleadings in the case at bar. 1 To complete our perspective of the legislative intent behind R.A. No. 6735, 1 now quote the deliberations of the Senate on June 8, 1989: 2
"OPENING OF THE SESSION At 10:23 a.m., the Honorable Jovito R. Salonga, President of the Senate, called the session to order. The President. Binubuksan ang pulong ng Senado. xxx xxx xxx ROLL CALL The President. Babasahin ng Kalihim ang talaan ng mga Senador. The Secretary. Senator Heherson T. AlvaresPresent Senator Edgardo J. AngaraPresent Senator Agapito A. AquinoPresent Senator Juan Ponce EnrilePresent Senator Joseph Ejercito EstradaPresent* Senator Neptali A. GonzalesPresent Senator Teofisto T. Guingona, Jr.Present Senator Ernesto F. Herrera Present Senator Sotero H. Laurel** Senator Jose D. Lina, Jr.Absent

Senator Ernesto M. MacedaPresent Senator Orlando S. MercadoPresent Senator John H. OsmeaPresent Senator Vicente T. PaternoPresent Senator Aquilino Q. Pimentel, Jr.Present* Senator Santanina T. RasulPresent Senator Alberto G. RomuloPresent Senator Rene A.V. SaguisagPresent** Senator Leticia Ramos Shahani Senator Mamintal Abdul J. TamanoPresent* Senator Wigberto E. TaadaPresent Senator Victor S. ZigaPresent The PresidentPresent The President.Labimpito ang mga Senador na dumalo sa ating pagpupulong. Mayroon tayong korum. xxx xxx xxx CONFERENCE COMMITTEE REPORT ON SENATE BILL NO. 17/HOUSE BILL NO. 21505 (System of Initiative and Referendum) Senador Mercado. Madam President, I move for the consideration of the Conference Committee Report on the disagreeing provisions of Senate Bill No. 17, entitled AN ACT PROVIDING FOR A SYSTEM OF INITIATIVE AND REFERENDUM, AND THE EXCEPTIONS THEREFROM, WHEREBY THE PEOPLE IN LOCAL GOVERNMENT UNITS CAN DIRECTLY PROPOSE AND ENACT RESOLUTIONS AND ORDINANCES OR APPROVE OR

REJECT ANY ORDINANCES OR RESOLUTION PASSED BY THE LOCAL LEGISLATIVE BODY and House Bill No. 21505, entitled AN ACT PROVIDING FOR A SYSTEM OF INITIATIVE AND REFERENDUM, AND APPROPRIATING FUNDS THEREFOR. I ask that we recognize Senator Gonzales. The Presiding Officer [Senator Rasul]. Senator Gonzales is recognized. SPONSORSHIP SPEECH OF SENATOR GONZALES (System of Initiative and Referendum) Senator Gonzales. Mrs. President, under Article VI, Section 3 of the Constitution, it is provided that the Congress shall, as early as possible, provide for a system of initiative and referendum and the exceptions therefrom whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body after the registration of a petition therefor signed by, at least, ten per centum of the total number of registered voters of which every legislative district must be represented by, at least, three per centum of the registered voters thereof.
EcTaSC

To implement this constitutional provision, one of the early bills filed before the Senate was Senate Bill No. 17, entitled AN ACT PROVIDING FOR A SYSTEM OF INITIATIVE AND REFERENDUM, AND THE EXCEPTIONS THEREFROM, WHEREBY THE PEOPLE IN LOCAL GOVERNMENT UNITS CAN DIRECTLY PROPOSE AND ENACT RESOLUTIONS AND ORDINANCES OR APPROVE OR REJECT ANY ORDINANCE OR RESOLUTION PASSED BY THE LOCAL LEGISLATIVE BODY. The initiatives and referendum are new tools of democracy; therefore, we have decided to be cautious in our approach. Hence, 1) we limited initiative and referendum to the local government units; 2) that initiative can only be exercised if the local legislative assemblies refuse or fail to act on a proposed ordinance or resolution; and 3) that initiative cannot be exercised more frequently than once every year. Now, this was approved by the Senate. And it is one of the earliest bills approved by the Senate during the first regular session. However, it took the House of Representatives two regular sessions before they could come up with

their own bill implementing the system of initiatives and referendum as called for in the Constitution. The result is House Bill No. 21505, entitled AN ACT PROVIDING FOR A SYSTEM OF INITIATIVE AND REFERENDUM, AND APPROPRIATING FUNDS THEREFOR. This, however, is broader than the system of initiative and referendum that is embodied in Senate Bill No. 17, because it covers the whole range of. 1) the Constitution; 2) statutes passed by national laws; 3) the enactments of local legislative bodies. So, because of the variance between the two bills, a Conference Committee was created. The Conference Committee, after meeting, came to an agreement to submit a Conference Committee Report, copies of which have been furnished every Member of this Body. The result, Madam President, is a consolidation of Senate Bill No. 17 and House Bill No. 21505. Understandably, the title of House Bill No. 21505 has been adopted as the title for the consolidated bill. It is An Act Providing for a System of Initiative and Referendum and Appropriating Funds Therefor. Now, under this consolidated bill, Madam President, there are three kinds or systems of initiative: (1) initiative on the Constitution itself which refers to a petition proposing amendments to the Constitution. This is expressly provided for in the system of amendment and revision of the Constitution; (2) initiative on statutes which refers to a petition proposing to enact a national legislation; and (3) initiative on local legislation which refers to a petition proposing to enact a regional, provincial, city, municipal or barangay law, resolution or ordinance, as the case may be. There are two kinds of referendum under this consolidated bill: (1) referendum on statutes which refers to a petition to approve or reject an act or law, or part thereof, passed by Congress; and (2) referendum on local laws. The provisions of the consolidated bill referring to the initiative on the Constitution and initiative on statutes, which are national in character, as well as the provisions on referendum regarding a national legislation, are largely provided for in House Bill No. 21505. On the other hand, beginning from Section 13 on page 6 up to Section 23 on page 10 of this Report, this is basically the Senate Bill No. 17, with the exception of the provision on appropriation. Because, we have to adopt the provision of the House bill on appropriation. And so, this has been signed by all the conferees on the part of the Senate and a majority of the conferees on the part of the House of Representatives. This morning, Madam President, I was informed that this Conference Committee Report had already been approved by the House of Representatives.

Therefore, we most respectfully submit this Conference Committee Report and strongly recommend its approval. The Presiding Officer [Senator Rasul]. Are there any questions? The Majority Floor Leader is recognized. APPROVAL OF CONFERENCE COMMITTEE REPORT ON SENATE BILL NO. 17/HOUSE BILL NO. 21505 Senator Mercado. Madam President, I reiterate my motion for the approval of the Conference Committee Report. The Presiding Officer [Senator Rasul]. Are there any objections? [Silence] Hearing none, the Conference Committee Report is approved. The following is the full text of the Conference Committee Report on Senate Bill No. 17/House Bill No. 21505: CONFERENCE COMMITTEE REPORT The Conference Committee on the disagreeing provisions of Senate Bill No. 17 entitled AN ACT PROVIDING FOR A SYSTEM OF INITIATIVE AND REFERENDUM, AND THE EXCEPTIONS THEREFROM, WHEREBY THE PEOPLE IN LOCAL GOVERNMENT UNITS CAN DIRECTLY PROPOSE AND ENACT RESOLUTIONS AND ORDINANCES OR APPROVE OR REJECT ANY ORDINANCE OR RESOLUTION PASSED BY THE LOCAL LEGISLATIVE BODY

and House Bill No. 21505 entitled AN ACT PROVIDING FOR A SYSTEM OF INITIATIVE AND REFERENDUM, AND APPROPRIATING FUNDS THEREFROM (sic), having met, after full and free conference, have agreed to recommend as they do hereby recommend to their respective Houses the approval of the attached bill in consolidation of Senate Bill 17 and House Bill 21505 entitled AN ACT PROVIDING FOR A SYSTEM OF INITIATIVE AND REFERENDUM, AND APPROPRIATING FUNDS THEREFOR CONFEREES ON THE PART OF THE HOUSE OF REPRESENTATIVES

(Sgd.) RAUL S. ROCO (Sgd.) MAGDALENO M. PALACOL JOAQUIN M. CHIPECO, JR. JOSE MA. R. ZUBIRI, JR. (Sgd.) SALVADOR H. ESCUDERO III CONFEREES ON THE PART OF THE SENATE (Sgd.) NEPTALI A. GONZALES (Sgd.) AQUILINO Q. PIMENTEL, JR. (Sgd.) AGAPITO A. AQUINO (Sgd.) JOHN H. OSMEA (Sgd.) JUAN PONCE ENRILE AN ACT PROVIDING FOR A SYSTEM OF INITIATIVE AND REFERENDUM, AND APPROPRIATING FUNDS THEREFOR. I. GENERAL PROVISIONS SECTION 1.TITLE. This act shall be known as `The Initiative and Referendum Act.' SEC. 2.Statement of Policy. The power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the requirement of this Act is hereby affirmed, recognized and guaranteed. SEC. 3.Definition of Terms. For purposes of this Act, the following terms shall mean: (a)`Initiative' is the power of the people to propose and enact legislations through an election called for the purpose.
SacTAC

There are three (3) systems of initiative, namely:

a.lInitiative on the Constitution which refers to a petition proposing amendments to the Constitution. a.2Initiative on statutes which refers to a petition proposing to enact a national legislation; and a.3Initiative on local legislation which refers to a petition proposing to enact a regional, provincial, city, municipal, or barangay law, resolution or ordinance. (b)`Indirect Initiative' is exercise of initiative by the people through a proposition sent to Congress or the local legislative body for action. (c)'Referendum' is the power of the electorate to approve or reject a legislation through an election called for the purpose. It may be of two classes, namely: c.1Referendum on statutes which refers to a petition to approve or reject an act or law, or part hereof, passed by Congress; and c.2Referendum on local law which refers to a petition to approve or reject a law, resolution or ordinance enacted by regional assemblies and local legislative bodies. (d)'Proposition' is the measure proposed by the voters. (e)'Plebiscite' is the electoral process by which an initiative on the Constitution is approved or rejected by the people. (f)'Petition' is the written instrument containing the proposition and the required number of signatories. It shall be in a form to be determined by and submitted to the Commission on Elections, hereinafter referred to as Commission. (g)`Local government units' refers to provinces, cities, municipalities and barangays. (h)'Local legislative bodies' refers to the Sangguniang Panlalawigan, Sangguniang Panglungsod, Sangguniang Bayan, and Sangguniang Nayon. (i)'Local executives' refers to the provincial Governors, City or Municipal Mayors and Punong Barangay as the case may be. SEC. 4.Who May Exercise. The power of initiative referendum may be exercised by all registered voters of the country, autonomous regions, provinces, cities, municipalities and barangays.

SEC. 5.Requirements. (a) To exercise the power of initiative or referendum, at least ten per centum (10 percent) of the total number of the registered voters, of which every legislative district represented by at least three per centum (3 percent) of the registered voters thereof, shall sign a petition for the purpose and register the same with the Commission. (b)A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12 percent) of the total number of registered voters as signatories, of which every legislative district must be represented by at least three per centum (3 percent) of the registered voters therein. Initiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years thereafter. (c)The petition shall state the following: c.lcontents or text of the proposed law sought to be enacted, approved or rejected, amended or repealed, as the case may be; c.2the proposition; c.3the reason or reasons therefor; c.4that it is not one of the exceptions provided herein; c.5signatures of the petitioners or registered voters; and c.6an abstract or summary proposition in not more than one hundred (100) words which shall be legibly written or printed at the top of every page of the petition. (d)A referendum or initiative affecting a law, resolution or ordinance passed by the legislative assembly of an autonomous region, province or city is doomed (sic) validly initiated if the petition therefor is signed by at least ten per centum (10 percent) of the registered voters in the province or city, of which every legislative district must be represented by at least three per centum (3 percent) of the registered voters therein: Provided, however, That if the province or city is composed only of one legislative district, then at least each municipality in a province or each barangay in a city should be represented by at least three per centum (3 percent) of the registered voters therein. (e)A referendum or initiative on an ordinance passed in a municipality shall be deemed validly initiated if the petition therefore is signed by at least ten per centum (10 percent) of the registered voters in the municipality, of which every barangay is represented by at least three per centum (3 percent) of the registered voters therein.

(f)A referendum or initiative on a barangay resolution or ordinance is deemed validly initiated if signed by at least ten per centum (10 percent) of the registered voters in said barangay. SEC. 6.Special Registration. The Commission on Elections shall set a special registration day at least three (3) weeks before a scheduled initiative or referendum.
DCATHS

SEC. 7Verification of Signatures. The Election Registrar shall verify the signatures on the basis of the registry list of voters, voters' affidavit and voters' identification cards used in the immediately preceding election. I. NATIONAL INITIATIVE REFERENDUM SEC. 8.Conduct and Date of Initiative or Referendum. The Commission shall call and supervise the conduct of initiative or referendum. Within a period of thirty (30) days from receipt of the petition, the Commission shall, upon determining the sufficiency of the petition, publish the same in Filipino and English at least twice in newspapers of general and local circulation and set the date of the initiative or referendum which shall not be earlier than forty-five (45) days but not later than ninety (90) days from the determination by the Commission of the sufficiency of the petition. SEC. 9Effectivity of Initiative or Referendum Proposition. (a)The proposition of the enactment, approval, amendment or rejection of a national law shall be submitted to and approved by a majority of the votes cast by all the registered voters of the Philippines. If, as certified to by the Commission, the proposition is approved by a majority of the votes cast, the national law proposed for enactment, approval, or amendment shall become effective fifteen (15) days following completion of its publication in the Official Gazette or in a newspaper of general circulation in the Philippines. If, as certified by the Commission, the proposition to reject a national law is approved by a majority of the votes cast, the said national law shall be deemed repealed and the repeal shall become effective fifteen (15) days following the completion of publication of the proposition and the certification by the Commission in the Official Gazette or in a newspaper of general circulation in the Philippines. However, if the majority voter (sic) is not obtained, the national law sought to be rejected or amended shall remain in full force and effect.

(b)The proposition in an initiative on the Constitution approved by a majority of the votes cast in the plebiscite shall become effective as to the day of the plebiscite. (c)A national or local initiative proposition approved by majority of the votes cast in an election called for the purpose shall become effective fifteen (15) days after certification and proclamation by the Constitution. SEC. 10.Prohibited Measures. The following cannot be the subject of an initiative or referendum petition: (a)No petition embracing more than one subject shall be submitted to the electorate; and (b)Statutes involving emergency measures, the enactment of which are specifically vested in Congress by the Constitution, cannot be subject to referendum until ninety (90) days after its effectivity. SEC. 11.Indirect Initiative. Any duly accredited people's organization, as defined by law, may file a petition for indirect initiative with the House of Representatives, and other legislative bodies. The petition shall contain a summary of the chief purposes and contents of the bill that the organization proposes to be enacted into law by the legislature. The procedure to be followed on the initiative bill shall be the same as the enactment of any legislative measure before the House of Representatives except that the said initiative bill shall have precedence over other pending legislative measures on the committee. SEC. 12.Appeal. The decision of the Commission on the findings of the sufficiency or insufficiency of the petition for initiative or referendum may be appealed to the Supreme Court within thirty (30) days from notice thereof. II. LOCAL INITIATIVE AND REFERENDUM SEC. 13.Procedure in local Initiative. (a) Not less than two thousand (2000) registered voters in case of autonomous regions, one thousand (1000) in case of provinces and cities, one hundred (100) in case of municipalities, and fifty (50) in case of barangays, may file a petition with the Regional Assembly or local legislative body, respectively, proposing the adoption, enactment, repeal, or amendment, of any law, ordinance or resolution.

(b)If no favorable action thereon is made by local legislative body within thirty (30) days from its presentation, the proponents through their duly authorized

and registered representative may invoke their power of Initiative, giving notice thereof to the local legislative body concerned. (c)The proposition shall be numbered serially starting from one (1). The Secretary of Local Government or his designated representative shall extend assistance in the formulation of the proposition.
ESCacI

(d)Two or more propositions may be submitted in an initiative. (e)Proponents shall have one hundred twenty (120) days in case of autonomous regions, ninety (90) days in case of provinces and cities, sixty (60) days in case of municipalities (sic), and thirty (30) days in case of barangays, from notice mentioned in subsection (b) hereof to collect the required number of signatures. (f)The petition shall be signed before the Election Registrar, or his designated representatives, in the presence of a representative of the proponent, and a representative of the regional assemblies and local legislative bodies concerned in a public place in the autonomous region or local government unit, as the case may be. Signature stations maybe established in as many places as may be warranted. (g)Upon the lapse of the period herein provided, the Commission on Elections, through its office in the local government unit concerned shall certify as to whether or not the required number of signatures has been obtained. Failure to obtain the required number is a defeat of the proposition. (h)If the required number of signatures is obtained, the Commission shall then set a date for the initiative at which the proposition shall be submitted to the registered voters in the local government unit concerned for their approval within ninety (90) days from the date of certification by the Commission, as provided in subsection (g) hereof, in case of autonomous regions, sixty (60) days in case of municipalities, and thirty (30) days in case of barangays. The initiative shall then be held on the date set, after which the results thereof shall be certified and proclaimed by the Commission on Elections. SEC. 14.Effectivity of Local Propositions. If the proposition is approved by a majority of the votes cast, it shall take effect fifteen (15) days after certification by the Commission as if affirmative action thereon had been made by the local legislative body and local executive concerned. If it fails to obtain said number of votes, the proposition is considered defeated. SEC. 15.Limitations on Local Initiatives. (a) The power of local initiative shall not be exercised more than once a year. (b)Initiative shall extend only to subjects or matters which are within the legal powers of the local legislative bodies to enact.

(c)If at any time before the initiative is held, the local legislative body shall adopt in toto the proposition presented, the initiative shall be canceled. However, those against such action may, if they so desire, apply for initiative in the manner herein provided. SEC. 16.Limitations Upon Local Legislative Bodies. Any proposition on ordinance or resolution approved through the system of initiative and referendum as herein provided shall not be repealed, modified or amended, by the local legislative body concerned within six (6) months from the date therefrom, and may be amended, modified or repealed by the local legislative body within three (3) years thereafter by a vote of three-fourths (3/4) of all its members: Provided, however, that in case of barangays the period shall be one (1) year after the expiration of the first six (6) months. SEC. 17.Local Referendum. Notwithstanding the provision of Sec. 4 hereof, any local legislative body may submit to the registered voters of autonomous region, provinces, cities, municipalities and barangays for the approval or rejection, any ordinance or resolution duly enacted or approved. Said referendum shall be held under the control and direction of the Commission within sixty (60) days in case of provinces and cities, forty-five (45) days in case of municipalities and thirty (30) days in case of barangays. The Commission shall certify and proclaim the results of the said referendum. SEC. 18.Authority of Courts. Nothing in this act shall prevent or preclude the proper courts from declaring null and void any proposition approved pursuant to this act for violation of the Constitution or want of capacity of the local legislative body of enact the said measure. IV. FINAL PROVISIONS SEC. 19.Applicability of the Omnibus Election Code. The Commission is hereby empowered to promulgate such rules and regulations as may be necessary to carry out the purpose of this Act. SEC. 20.Rules and Regulations. The Commission is hereby empowered to promulgate such rules and regulations as maybe necessary to carry out the purposes of this Act. SEC. 21.Appropriations. The amount necessary to defray the cost of the initial implementation of this Act shall be charged against the Contingent Fund in the General Appropriations Act of the current year. Thereafter, such sums as may be necessary for the full implementation of this Act shall be included in the annual General Appropriations Act.

SEC. 22.Separability Clause. If any part or provision of this Act is held invalid or unconstitutional, the other parts or provisions thereof shall remain valid and effective. SEC. 23.Effectivity. This Act shall take effect fifteen (15) days after its publication in a newspaper of general circulation. Approved."

The Conference Committee Report on Senate Bill No. 17/House Bill No. 21505 was unanimously approved by the Senate then led by Senator Jovito Salonga as its President. It cannot be doubted that the intent of the Senate in approving R.A. No. 6735 is to implement the provisions of the Constitution giving the people the power to initiate and approve amendments to the Constitution. Nor can it be doubted that the Senate installed in R.A. No. 6735 the procedure to implement this legislative intent. The Senate that approved R.A. No. 6735 carried the names of some of our more brilliant legal minds, and some of our most experienced hands in bill drafting. It is difficult to believe that these distinguished senators allowed R.A. No. 6735 to be approved when it is so littered with ambiguities as to become incomprehensible, nay, unenforceable. II The second overriding concern is the need to comply with our traditional duty to interpret R.A. No. 6735 to effectuate its intent. R.A. No. 6735 represents the wisdom and the will of two co-equal branches of government the Legislative and the Executive. Due respect to these two branches of government demands that we utilize all rules of statutory construction to effectuate R.A. No. 6735. It has been the teaching of this Court for ages that when a law admits of two interpretations, one that will sustain it and another that will invalidate it, the interpretation that will save the law should be adopted.
cdtai

The simple yet decisive question is whether there is a way to interpret R.A. No. 6735 to save it. Stated otherwise, is the law so badly written that the Court has no choice but to strike it down as inadequate? Even the gurus of grammar will not suggest the indefensible idea that our distinguished senators and congressmen who cobbled R.A. No. 6735 into law were so lacking in draftmanship skills that they wrote a completely incomprehensible piece of legislation. The running argument between the majority and minority members of this Court may not have clearly settled the issue of whether the language of R.A. No. 6735 has adequately expressed the intent of our lawmakers. At the very least, however, the sparks of the spirited debate show that there is a way to interpret R.A. No. 6735 in order to save it. The minority view that R.A. No. 6735 is comprehensible enough to be enforceable cannot be dismissed as totally unfounded, unreasonable, and unrealistic. In truth, the minority view is shared by others whose honesty of motive cannot be assailed. It is shared by the lawmakers who enacted R.A.

No. 6735 in compliance with their constitutional duty to the people. It is shared by former President Corazon C. Aquino who signed R.A. No. 6735 into law. And most important, the COMELEC has never wavered in its position that R.A. No. 6735 is not incomprehensible, insufficient or inadequate. The COMELEC, under the stewardship of then Acting Chairperson Haydee Yorac, understood R.A. No. 6735 without any difficulty. Indeed, the COMELEC promulgated Resolution No. 2300 prescribing the rules and regulations on the conduct of people's initiative to amend the Constitution. It was ready then and it is ready now to implement R.A. No. 6735. More than any department, instrumentality or agency of government, the COMELEC is the most authoritative to determine whether R.A. No. 6735 is clear and enforceable. Article IX (c) (2) of the Constitution gave the COMELEC the exclusive power to "enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall." Its long experience and expertise in enforcing our election laws cannot be doubted and its interpretation of R.A. No. 6735 carries a considerable weight. To stress once more, there is no question that the intent of R.A. No. 6735 is to implement the right of the people through initiative to propose amendments to the Constitution. Its validity is questioned, however, on the ground that its key provisions relating to what a petition should contain fails to mention constitutional amendments and appears to be limited to ordinary legislation proposed for enactment; approval or rejection. (E.g., Sec. 5(c) and subtitle II). No reason has been advanced why these provisions cannot be construed to apply to proposed constitutional amendments. No reason has been shown for restrictively and literally construing these provisions as applicable to ordinary legislation only. On the other hand, the established rule in the interpretation of statutes is for courts to seek the legislative intention and give it effect. The inadequacy of a statute is not a ground for invalidating it. Given the lawfulness of the legislative purpose to implement the constitutional provision on initiative to amend the Constitution, it is not for this Court to say how well the statute succeeds in attaining that purpose. "With the wisdom of the policy adopted, with the adequacy or practicality of the law enacted to forward it, the courts are both incompetent and unauthorized to deal." 3

III The third overriding concern is the need to avoid the danger of over-checking the power of Congress to make laws which will put in peril the fundamental principle of separation of powers. The Constitution vested in Congress the power to make laws. 4 The power of Congress to make laws is plenary in nature. The legislature is accorded the widest latitude in lawmaking to meet the fluctuating problems of our people. It cannot be gainsaid that our legislators are more keenly aware of these problems for they are in

closer contact with our people. They have better access to facts to solve these problems. They are also expected to respond adequately to our people's problems for they have to account to the people come election day. A more chastened recognition of the policymaking role of Congress should compel this Court to exercise extreme care and caution before imposing any new limitation on its power to make laws. From time immemorial, courts have only invalidated laws that offend the Constitution. The limits of the judicial power to invalidate laws are no longer open to doubt and debate. In this jurisdiction, as early as 1927 in the seminal case of Government v. Springer, 5 Mr. Justice Johnson's concurring opinion authoritatively laid down its metes and bounds, thus:
xxx xxx xxx "It is conceded by all of the eminent authorities upon constitutional law that the courts have authority to finally determine what are the respective powers of the different departments of government. "The question of the validity of every statute is first determined by the legislative department of the Government, and the courts will resolve every presumption in favor of its validity. Courts are not justified in adjudging a statute invalid in the face of the conclusions of the legislature, when the question of its validity is at all doubtful. The courts will assume that the validity of a statute was fully considered by the legislature when adopted. Court will not presume a statute invalid unless it clearly appears that it falls within some of the inhibitions of the fundamental laws of the state. The wisdom or advisability of a particular statute is not a question for the courts to determine. If a particular statute is within the constitutional power of the legislature to enact, it should be sustained whether the courts agree or not in the wisdom of its enactment. If the statute covers subjects not authorized by the fundamental laws of the land, or by the constitution, then the courts are not only authorized but are justified in pronouncing the same illegal and void, no matter how wise or beneficent such legislation may seem to be. Courts are not justified in measuring their opinions with the opinion of the legislative department of the government, as expressed in statutes, upon questions of the wisdom, justice and advisability of a particular law. In exercising the high authority conferred upon the courts to pronounce valid or invalid a particular statute, they are only the administrators of the public will, as expressed in the fundamental law of the land. If an act of the legislature is to be held illegal, it is not because the judges have any control over the legislative power, but because the act is forbidden by the fundamental law of the land and because the will of the people, as declared in such fundamental law, is paramount and must be obeyed, even by the legislature. In pronouncing a statute illegal, the courts are simply interpreting the meaning, force, and application of the fundamental law of the state." (Case vs. Board of Health and Heiser, 24 Phil. 250, 251.)
DIESHT

The judicial department of the Government may examine every law enacted by the legislative branch of the Government when the question is properly presented for the purpose of ascertaining: (a)Whether or not such law came within the subject matter upon which the legislative branch of the Government might legislate; and (b)Whether the provisions of such law were in harmony with the authority given the legislature. If the judicial branch of the Government finds (a) that the legislative or executive branches of the Government had authority to act upon the particular subject, and (b) that the particular law contained no provisions in excess of the power of such department and the acts of the executive were within his powers, then that investigation, or that conclusion, conclusively terminates the investigation by the judicial department of the Government."

Former Chief Justice Enrique Fernando similarly posits the view that a law can be invalidated only if Congress exceeds the substantive or formal limitations of its legislative power as spelled out in the Constitution, viz: 6
"The legislative power, while comprehensive, is not unlimited. It cannot be where constitutionalism prevails. Such limitations may be substantive or formal. They belong to the former category when they refer to the subject matter of legislation. They may be either implied or express. Implied substantive limitations are embodied in such doctrines as the prohibition against the passage of irrepealable laws, and the prohibition of the delegation of legislative power. The Bill of Rights embodies such express limitation. Then too there may be other provisions that limit specific powers of the National Assembly. An example is the requirement of uniformity for taxing statutes. Formal limitations refer to the procedural requirements in the enactment of legislation. Thus, no bill shall become a law unless it passed three readings on separate days and printed copies thereof in its final form have been distributed to the members of the National Assembly three days before its passage except when the Prime Minister certifies to the necessity of its immediate enactment to meet a public calamity or emergency."

In the case at bar, R.A. No. 6735 is not assailed by the majority as unconstitutional for failure of Congress to follow the substantive requirements of lawmaking. It even concedes that Congress enacted the law in compliance with its duty to implement the provision of the Constitution granting the people the right to amend our fundamental law thru people's initiative. It goes without saying that the subject matter of R.A. No. 6735 is within the compass of the power of Congress to legislate. Nor does the majority strike down R.A. No. 6735 on the ground that Congress breached any of the formal procedural steps in enacting a law. Since it is uncontested that Congress did not violate any of the

substantive or formal requirements of lawmaking in enacting R.A. No. 6735, this Court has no option but to effectuate the same. This is our consistent stance in the past. There is no reason to be inconsistent now. The majority has broken all precedents when it did not find R.A. No. 6735 as unconstitutional yet refused to validate it. It relies on a reason unrecognized by existing jurisprudence, i.e., that Congress inadequately expressed its intent in drafting R.A. No. 6735. In so doing, intervenor Roco observed that this Court "has created a third specie of invalid laws, a mongrel type of constitutional but inadequate and, therefore, invalid law."
7

The Roco observation should raise our antennas. In letting loose this "mongrel" type of invalid law, the Court has overextended its checking power against Congress. This mongrel endangers the principle of separation of powers, a touchstone of our Constitution. The power of Congress to make laws includes the power how to write laws. The court has the power to review the constitutionality of laws but it has no authority to act as if it is the committee on style of Congress. The Court has the power to interpret laws but the principal purpose in exercising this power is to discover and enforce legislative intent. We should heed the warning of Crawford that if courts ignore the intent of the legislative, they would invade the legislative sphere and violate the tripartite theory of government. 8 The balance of power among the executive, legislative and judicial branches of our government was fixed with pinpoint precision by the framers of our fundamental law. The Constitution did not give the Court the power to alter this balance especially to alter it in its favor. Unless allowed by the Constitution, a non-elected court cannot assume powers which will make it more than the equal of an elected legislature or an elected executive. IV The fourth overriding concern is the need to enforce the new provision of the provision of the Constitution giving our people a direct, participatory role in its amendment. It is almost trite to state that a good written Constitution has three essential part. The first provides the framework of government; the second defines and protects the rights of the people against government intrusion; and the third prescribes the procedure of its amendment. 9 The importance of our constitutional provision on amendment cannot be overemphasized. Apropos is the reminder of Mr. Justice Frankfurter that a constitution is an enduring framework of government for a dynamic society and not a code of lifeless forms. 10 For a constitution to be a living law, it ought to be flexible in order to meet the variegated needs of the people as time and circumstance dictate. A constitution cannot be beyond the touch of change for the vision of its framers cannot always pierce the veil of the future. To be unremittingly relevant, every constitution provides a procedure on how it can be

amended. The amendatory provision of our Constitution is thus its safety valve for change without confrontation, for progress without violence. It is our duty to be liberal in interpreting this amendatory provision, for if our Constitution fails to take care of the troubles of tomorrow it will become the sarcophagus of our people's aspirations. The same liberal spirit should guide us in interpreting R.A. No. 6735 for its purpose is to allow our people to initiate amendments to our Constitution to meet their changing needs.

V Petitioners and other intervenors also assail the proposition lifting the term limits of our elected officials as an unfit subject of a people's initiative to amend the Constitution. They contend that the proposition will involve a revision of the constitution and not merely its amendment. There is no necessity to resolve this particular issue. 11 The Court has unanimously ordered the COMELEC to dismiss the Delfin petition. Thus, there is no proposition before the Court lifting any term limit of our elected officials. Any ruling on the issue will be no more than an advisory opinion which cannot be rendered by this Court.
CIAHDT

VI A final concern. The core issue in this case has been obscured mostly by non-legal arguments. The plain issue is whether the people should be-given the opportunity to speak and decide on the need to amend our Constitution. The view that R.A. No. 6735 is not an inadequate law gives them this rare opportunity. There is now a greater need to know the will of the people considering the conflicting claims of many that they are the vocal chords of the people. The voice of the people should be heard directly and a deaf ear should be given even to those who will dictate their will on the people on the erroneous belief that they hold an exclusive franchise on righteousness. It should be underscored in scarlet that the Court is not pushing for any amendment to the Constitution. There is yet no telling whether the Constitution will be amended thru people's initiative. Those who will start a people's initiative have still to hurdle a lot of legal and extra-legal difficulties. They have to comply strictly with the procedure set by the Constitution, R.A. No. 6735 and COMELEC Resolution No. 2300. They have to convince the people of the merit of their proposition thru a democratic dialogue. It is worth noting that acts challenged as subverting the procedural safeguards set to ascertain the true people's will in recall, referendum, and initiative cases have been given the strictest scrutiny by this Court. In Garcia vs. COMELEC, 12 we voided the first recall resolution against the then Governor Enrique Garcia of Bataan for lack of notice to some members of the Preparatory Recall Assembly. In Angobung vs. COMELEC, et al., 13 we also struck down a recall petition filed by less than 25% of the total number of votes in Tumauini, Isabela. In the case at bar, we unanimously threw out the Delfin petition for

failure to follow the procedure set by R.A. No. 6735. More important, the result of the recent recall election of the mayor of Caloocan city provides us with the emerging evidence that the people can no longer be manipulated by the unscrupulous while exercising their sovereign power. The framers of our fundamental law rightly trusted our people when they gave them the new right to start an initiative to amend the Constitution. We can do no less. FRANCISCO, J., separate opinion: I retain the view I have already expressed in my previous Dissenting and Concurring Opinion in this case. As to the issue on whether PIRMA's proposals constitute an amendment or revision of the constitution, here is my view on the matter. Amendment and revision signify change in the constitutional text. They, nonetheless, have distinct dissimilarities, thus:
". . . An amendment envisages an alteration of one or a few specific provisions of the constitution, and its guiding original intention is to improve specific parts or to add new provisions or to suppress existing ones according as addition, or subtraction might be demanded by existing conditions. In revision, however, the guiding intention and plan must contemplate a re-examination of the entire document to determine how and to what extent it should be altered. Whether the end result of the originally intended revision is in fact a total change of the constitution or merely an alteration of key provisions, the end product would still be a revision." 1

In the case at bench, I find private respondents' proposal as a mere "amendment" and not a "revision" of the constitution. A cursory reading of private respondents' petition and its attached petition for initiative in the 1987 Constitution filed with the Commission on Elections envisages the alteration of some specific provisions of the constitution all relating to a single subject, i.e., the lifting of the limitation on the term of office of elected government officials. As it appears, the guiding original intention of private respondents is merely to improve on provisions by adding new ones and suppressing some existing parts thereof. There is nothing from the records to indicate that private respondents intended to re-examine the entire 1987 Constitution and determine to what extent should the same be altered. In fact, extant in the records is the following passage from petitioners' own pleading. Thus:
"12.On several occasions, particularly during the Senate hearing on the people's initiative conducted jointly by the Committees on Constitutional Amendments, Revision of Codes and Laws, and Finance on 10 December 1986, private respondent Pedrosa admitted:

"SEN. ENRILE: Can you state into the record in brief why you are proposing the amendment of the Constitution and specifically to effect an amendment to lift term limits of elective officials of the country? "MR. PEDROSA: Yes, sir. The PIRMA is up to obtain signatures needed that we present to a citizen to each district and for all, with a view to holding a plebiscite and in that plebiscite the question will be put to the people about lifting term limits on elective officials." "SEN. FERNAN: One of the reasons behind this amendment, is for you to see President Ramos run for reelection? "MR. PEDROSA: Yes, sir. I will admit that that is in fact the . . . "SEN. FERNAN: You are interested in seeing him continue as President? "MR. PEDROSA: Yes, in the affirmative." 2

The foregoing is unequivocal. The guiding intention and plan of the prime movers of the initiative on the constitution is not the re-examination of the entire constitution so as to fall within the ambit of revision, but an alteration on the term of office of elective officials. Hence, the same pertains to a mere amendment.
ISCTcH

Moreover, the proposed amendment appears to be an innocuous alteration. Indeed, the 1935 Constitution has also undergone a similar alteration when the term of office of the President and Vice-President was changed from six to four years with allowance for reelection for the President provided the total number of years he served in office did not exceed eight consecutive years. 3 The 1973 Constitution likewise underwent changes. In 1976, for instance, the following were made: an Interim Batasang Pambansa was created; the then incumbent president was included as a member of the Interim Batasang Pambansa; the president was also instituted as the prime minister; and the president was granted legislative powers through Amendment No. 6. These drastic innovations in the 1973 Constitution, declared ratified and in full force on October 27, 1976, are nothing but amendments. In fact, the Court in Legaspi v. Minister of Finance 4 a referred to Amendment No. 6 as what itself expresses, i.e., a mere amendment. In the case at bench, the petition for initiative on the constitution simply deals with the term of office of public officials. This alteration surely is not as intricate and as drastic as what was done with the 1973 Constitution. HERMOSISIMA, JR., J., concurring and dissenting: "It is one thing to utter a happy phrase from a protected cloister; another to think under fire to think for action upon which great interests depend." So said Justice Oliver

Wendell Holmes, and so am I guided as I reconsider my concurrence to the holding of the majority that "R.A. No. 6735 is inadequate to cover the system of initiative on amendments to the Constitution and to have failed to provide sufficient standard for subordinate legislation" 1 and now interpose my dissent thereto. At the outset, however, I reiterate my adherence to the position of the majority that the Delfin petition should be dismissed on the ground that, failing to contain names and/or signatures of "at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein," 2 the Delfin petition is fatally defective, being in violation of Section 2 of Article XVII of the 1987 Constitution. In the Motion for Reconsideration filed by private respondent Jesus S. Delfin, there was an attempt to befuddle this blatant non-compliance with the constitutional requirement that the petition to amend the Constitution through a people's initiative bear the names and/or signatures of at least 12% of all the registered voters in the country. Private respondent Delfin distortedly postulated that the COMELEC, as an administrative agency, has no judicial authority to cognize any petition to amend the Constitution through a people's initiative, and that thus, the Delfin petition need not contain the names and/or signatures of at least 12% of all the registered voters, the same being merely a "request for administrative assistance" which was never intended to "trigger the inception of jurisdiction to act on a Petition for Initiative to Amend the Constitution, which certainly it should not . . . because COMELEC does not have such kind of judicial jurisdiction in matters relating to initiative [and] . . . because the matters sought for in the pleading . . . are only petty preliminaries which can be done by COMELEC even before the filing of a Petition for Initiative requiring signatures." 3 Private respondent's contentions, however, border on childish quibbling. There is no mincing words when it comes to a constitutional prerequisite to the exercise of a right; the Constitution is plain and unequivocal as to what triggers the proceedings for a people's initiative to amend the Constitution only "a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein." Whether the Delfin petition is "a mere request for administrative assistance" or itself already the "Petition for Initiative to Amend the Constitution," it is undisputedly, by praying for the setting of time and dates for the signing of the petition by the required percentage of the registered voters all over the country and for the publication of the "Petition for Initiative on the Constitution," the petition that sets off the mechanism of a people's initiative to amend the Constitution. As the petition that triggers the people's initiative to amend the Constitution, the Delfin petition must be signed by the required percentage of registered voters, or at the least, must contain the names of at least 12% of all the registered voters in the country and then signed by at least one registered voter in behalf of all the

signatories, as mandated by the Constitution. We cannot and will never sanction any avoidance of this categorical mandate of the fundamental law of the land.

There is simply no going around this requirement that the initiatory petition for a people's initiative to amend the Constitution should contain the names and/or signatures of at least 12% of all the registered voters in the country. The attempt to do so, however, is not new to us, it being only recently that we had stricken down a similar attempt by a losing candidate in a mayoralty election to initiate recall proceedings on the strength of a petition for recall containing only the name and signature of said losing candidate, which petition as such is utterly violative of the statutory requirement that recall proceedings be initiated by a petition of at least 25% of the total number of registered voters in the local government unit concerned. This was the case of Mayor Ricardo M. Angobung v. Commission on Elections En Banc and Atty. Aurora S. de Alban. 4 There we ruled:
"Section 69 (d) of the Local Government Code of 1991 expressly provides that `recall of any elective . . . municipal . . . official may also be validly initiated upon petition of at least twenty-five percent (25%) of the total number of registered voters in the local government unit concerned during the election in which the local official sought to be recalled was elected.' The law is plain and unequivocal as to what initiates recall proceedings: only a petition of at least 25% of the total number of registered voters, may validly initiate recall proceedings. We take careful note of the phrase, `petition of at least twenty-five percent (25%)' and point out that the law does not state that the petition must be signed by at least 25% of the registered voters; rather, the petition must be 'of' or by, at least 25% the registered voters, i.e., the petition must be filed, not by one person only; but by at least 25% of the total number of registered voters. . . . Hence, while the initiatory recall petition may not yet contain the signatures of at least 25% of the total number of registered voters, the petition must contain the names of at least 25% of the total number of registered voters in whose behalf only one person may sign the petition in the meantime. We cannot sanction the procedure of the filing of the recall petition by a number of people less than the foregoing 25% statutory requirement, much less, the filing thereof by just one person, as in the instant case, since this is indubitably violative of clear and categorical provisions of subsisting law. . . . While recall was intended to be an effective and speedy remedy to remove an official who is not giving satisfaction to the electorate . . . it is a power granted to the people who, in concert, desire to change their leaders for reasons only they, as a collective, can justify. In other words, recall must be pursued by the people, not just by one disgruntled loser in the elections or a small percentage of disenchanted electors. Otherwise, its purposes as a direct remedy of the people shall be defeated by the ill motives of a few among them whose

selfish resort to recall would destabilize the community and seriously disrupt the running of government.
DCTSEA

xxx xxx xxx In the instant case, this court is confronted with a procedure that is unabashedly repugnant to the applicable law and no less such to the spirit underlying that law. Private respondent who is a lawyer, knows that Section 69 (d) of the Local Government Code plainly provides that recall is validly initiated by a petition of 25% of the total number of registered voters. Notwithstanding such awareness, private respondent proceeded to file the petition for recall with only herself as the filer and initiator. She claims in her petition that she has, together with many others in Tumauini, Isabela, lost confidence in the leadership of petitioner. But the petition does not bear the names of all these other citizens of Tumauini who have reportedly also become anxious to oust petitioner from the post of mayor. . . . While the people are vested with the power to recall their elected officials, the same power is accompanied by the concomitant responsibility to see through all the consequences of the exercise of such power, including rising above anonymity, confronting the official sought to be recalled . . . and seeing the recall election to its ultimate end. The procedure of allowing just one person to file the initiatory recall petition and then setting a date for the signing of the petition, which amounts to inviting and courting the public which may have not, in the first place, even entertained any displeasure in the performance of the official sought to be recalled, is not only violative of statutory law but also tainted with an attempt to go around the law. We can not and must not, under any and all circumstances, countenance a circumvention of the explicit 25% minimum voter requirement in the initiation of the recall process." 5

The Delfin petition was filed and signed by private respondent Delfin only. The Delfin petition having prayed for the setting of the time and dates for the signing of the Petition for Initiative on the 1987 Constitution and for the publication thereof for public consumption, it is the initiatory pleading for purposes of starting the proceedings for a people's initiative to amend the Constitution, which initiatory pleading as such should have contained the names and/or signatures of at least 12% of all the registered voters in the country. As the Delfin petition utterly failed to comply with the constitutional requirement of voter percentage, it is nothing more than a mere scrap of paper that the Commission on Elections should have, at first glance, in whatever capacity, ignored as surplusage. Having rejected private respondents' asseverations on the validity of the Delfin petition, I, nonetheless, with as much conviction, realize now that the majority ruling on the inadequacy of R.A. No. 6735 should be reconsidered. While I hold in esteem my brother Justice Hilario Davide whose ponencia established a detailed foundation in support of the interpretation that R.A. No. 6735 does not

adequately cover the system of initiative on amendments to the Constitution, hence my earlier concurrence thereto, I see now that there is an equally compelling and valid rationale which builds and sustains the interpretation that R.A. No. 6735 is a substantial compliance on the part of Congress with its constitutional duty and power to "provide for the implementation of the exercise of this right." 6 The underlying policy of R.A. No. 6735 is the realization of the "power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, [and] laws, ordinances, or resolution passed by any legislative body," 7 The subject matter of R.A. No. 6735 clearly includes a people's initiative to amend the Constitution. Illustrative of this are (1) the definition of "initiative" in the said Act as "the power of the people to propose amendments to the Constitution or to propose and enact legislations through an election called for the purpose," 8 (2) the enumeration in the same Act of the three (3) systems of initiative which includes the "initiative on the Constitution which refers to a petition proposing amendments to the Constitution," 9 and (3) the definition of "plebiscite" as "the electoral process by which an initiative on the Constitution is approved or rejected by the people." 10 Under the second paragraph of Section 2 of Article XVII of the 1987 Constitution, one of the duties and powers of the legislature is to enact a statute that "shall provide for the implementation of the exercise of [the] right [to amend the Constitution through a people's initiative]." In pursuance of this constitutional mandate, Congress provided in R.A. No. 6735 that "a petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein." 11 Directed by the Constitution to spell out the limits and parameters, if need there be, as to the exercise of the people's right to amend the Constitution through initiative proceedings, Congress further provided that "initiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years thereafter." 12 Having already laid out the required voter percentage and the limitation as to the time for the proper exercise of the right to amend the Constitution through a people's initiative, and having categorically provided that the initiatory petition for a people's initiative should contain "the proposition and the required number of signatories," 13 R.A. No. 6735 proceeds thus to delegate to the Commission on Elections the power to determine the form of this initiatory petition. 14 R.A. No. 6735 also provides for procedures for the process of verifying the signatures in the initiatory petition 15 and for the conduct of a special registration 16 before the scheduled initiative, all apparently in compliance by Congress with its constitutional duty to provide for the implementation of the exercise of the people's right to amend the Constitution through initiative proceedings.
DEaCSA

The thrust of the majority opinion is that in providing the above policies, concepts and procedures, Congress nonetheless failed to lay down the sufficient standards by which the Commission on Elections may be validly and effectively guided in "promulgat[ing] such rules and regulations necessary to carry out the purposes of [R.A. No. 6735]" 17 in the sense that R.A. No. 6735 is inadequate or wanting in the essential terms and conditions pertinent to the implementation of the people's right to amend the Constitution through initiative proceedings. Said Act, thus, cannot be deemed complete and containing sufficient standards to serve as valid basis for subordinate legislation in the form of Comelec Resolution No. 2300.

It is significant to note, however, that while the majority declared R.A. No. 6735 to be so inadequate as to bar the exercise by the people of their right to amend the Constitution through initiative proceedings, the majority decries the omission by Congress of only one provision an enumeration of the contents of a petition for initiative on the Constitution. It bears repeating, however, that Sections 3 (f) and 5 (b) of R.A. No. 6735, read together, provide that a petition for initiative on the Constitution must contain the proposition and the required number of signatories, which is at least 12% of the total number of registered voters in the country, of which every legislative district should be represented by at least 3% of the voters thereof. Undoubtedly, such constitutes, by any measure, a sufficient standard on the basis of which the Commission on Elections may proceed to formulate the more detailed requirements, if any, of a petition to amend the Constitution through initiative proceedings. The majority also pointed out that R.A. No. 6735 does not contain a subtitle treating solely of the matter of an initiative on the Constitution, but certainly the mere literal absence of such a subtitle without an explicit mention of what particular provision should be contained under that subtitle, i.e., what "essential terms and conditions" are referred to by the majority as indispensable to make R.A. No. 6735 adequate for purposes of a people's initiative on the Constitution, does not make a good case in support of the majority's postulation that R.A. No. 6735 is insufficient for said purposes. More importantly, I humbly submit that R.A. No. 6735 does not have to contain every detail conceivable in the matter of initiative proceedings for the amendment of the Constitution and that as it provides for the minimum voter percentage requirement, the essential requisites in the initiatory petition, the five-year time limit on the exercise of the right of initiative on the Constitution, the special registration day prior to the plebiscite, and the conduct of signature verification as to the initiatory petition, R.A. No. 6735 sufficiently laid down the necessary minimum standards for a valid and complete statute treating of the matter of, among others, the initiative proceedings to amend the Constitution. R.A. No. 6735 having provided for the basic and indispensable who's, what's, where's, when's and why's in the matter of the initiative proceedings to amend the

Constitution, the details as to how such proceedings are to be step-by-step undertaken, are properly left to the Commission on Elections to promulgate in the form of subordinate legislation. Said commission, after all, is empowered by the Constitution to "enforce and administer all laws and regulations relative to the conduct of . . . initiative . . ." 18 and by R.A. No. 6735 to "promulgate such rules and regulations as may be necessary to carry out the purposes of [said] Act." 19 Finally, having established that there exists no legal impediment to the reliance on R.A. No. 6735 to validate an exercise by the people of their right to amend the Constitution through initiative proceedings, I may as well add, with extreme hesitation, that while the passionate call for the championing of the people's rights to control their political destiny, demands a favorable response from this Court, it being the ultimate defender of the sovereignty of the people, this Court cannot be ultrapopulist as to indiscriminately stamp its imprimatur to each and every form of "people power" activism albeit wanting in legal underpinnings. Neither may this court, however, straitjacket a people's momentum to charter their own political destiny by imposing its personal additional ingredients as to what makes a perfect statutory mixture, albeit the finished formulation of a simple, basic concoction that is R.A. No. 6735. WHEREFORE, I vote to dismiss the Delfin petition. I vote, however, to declare R.A. No. 6735 as adequately providing the legal basis for the exercise by the people of their right to amend the Constitution through initiative proceedings and to uphold the validity of Comelec Resolution No. 2300 insofar as it does not sanction the filing of the initiatory petition for initiative proceedings to amend the Constitution without the required names and/or signatures of at least 12% of all the registered voters, of which every legislative district must be represented by at least 3% of their registered voters therein. Torres, J., inhibition: With due respect to my esteemed brethren in the Court, I have spent a considerable length of time reading the Motions for Reconsideration 1 filed by respondents, in relation to the decision of this Court dated March 19, 1997 in the above-entitled case. The Motions for Reconsideration aforesaid contains substantial matters which if considered cannot be taken. lightly by this Court. The challenged ponencia of Mr. Justice Hilario G. Davide, Jr. is equally founded on unassailable legal and jurisprudential premises which singly or collectively, can stand the test of logic and reasoned judgment. Petitioners and respondents, however, cross-cross on the lead issue of whether there is an implementing law which would allow amendments to the Constitution to be "directly proposed by the people through initiative." Republic Act 6735 is allegedly "incomplete,

inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned." I will not attempt to scrutinize the merits or demerits of the positions of the majority and/or minority of this celebrated case at bar. I have, however, noted the arguments of the movants in support of their positions.
ETIDaH

As the parties pay fealty and homage to the Constitution as the final expression of the will of the sovereign people, I find myself not wholly free to participate in the resolution of the issues in clear conscience. Probitas verus honor honesty is true honor. On the jurisprudential level, it was Mr. Justice Conrado Sanchez in Pimentel vs. Salanga who penned the ethical idiom that "to disqualify or not to disqualify one's self, is a matter of conscience. (No. L-27934, September 18, 1967). In the same breath, the Christ-like Indian sage Mohandas Gandhi cautioned that "in matters of conscience, the law of the majority has no place." Considering the foregoing, I bet to ABSTAIN from participating in the case at bar.

EN BANC
[G.R. No. L-28196. November 9, 1967.] RAMON A. GONZALES, petitioner, vs. COMMISSION ON ELECTIONS, DIRECTOR OF PRINTING, and AUDITOR GENERAL, respondents. [G.R. No. L-28224. November 9, 1967.] PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), petitioner, vs. COMMISSION ON ELECTIONS, respondent. No. 28196: Ramon A. Gonzales for and in his own behalf as petitioner. Juan T. David as amicus curiae. Solicitor General for respondents. No. L-28224: Salvador Araneta for petitioner. Solicitor General for respondents. SYLLABUS 1.CONSTITUTIONAL LAW; POWER OF JUDICIAL DEPARTMENT TO DETERMINE PROPER ALLOCATION OF POWERS BETWEEN SEVERAL DEPARTMENTS. The "Judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof" (Angara vs. Electoral Commission, 63 Phil., 139). 2.ID.; POWER TO PASS UPON VALIDITY OF CONSTITUTIONAL AMENDMENT. In Mabanag vs. Lopez Vito, (78 Phil., 1), the Court declined to pass upon the question whether or not a given number of votes cast in Congress in favor of a proposed amendment to the Constitution satisfied the three-fourths vote requirement of the fundamental law, characterizing the issue as a political one. The force of this precedent

has been weakened by Suanes vs. Chief Accountant of the Senate (81 Phil. 818), Avelino vs. Cuenco (1-12851, March 4, and 14, 1949), Taada vs. Cuenco (L-10520, Feb. 18, 1957), and Macias vs. Commission on Elections, 58 Off. Gaz; (51) 8388. The Court rejected the theory, advanced in these four cases, that the issues therein raised were political questions, the determination of which, is beyond judicial review. 3.ID.; NATURE OF POWER TO AMEND THE CONSTITUTION. The power to amend the Constitution or to propose, amendments thereto is not included in the general grant of legislative powers to Congress (Sec. 1, Art, VI, Const.) It is part of the inherent powers of the people - as the repository of sovereignty in a republican state, such as ours (Sec. 1, Art. II, Const.) to make and hence, to amend their own Fundamental Law. Congress may propose amendments to the Constitution merely because the same explicit]y grants such power (Sec. 1, Art. XV, Const.). Hence, when exercising the same, it is said that Senators and Members of the House of Representatives act, not as members of Congress, but as component elements of a constituent assembly. When acting as such, the members of Congress derive their authority from the Constitution, unlike the people, when performing the same function, for their authority does not emanate from the Constitution - they are the very source of all powers of government, including the Constitution itself. 4.ID.; POWER OF APPORTIONMENT OF CONGRESSIONAL DISTRICTS. It is not true that Congress has not made an apportionment within three years after the enumeration or census made in 1960. It did actually pass a bill, which became Republic Act 3040 (Approved, June 17, 1961) purporting to make said apportionment. This Act was, however, declared unconstitutional, on the ground that the apportionment therein undertaken had not been made according to the number of inhabitants of the different provinces of the Philippines (Macias vs. Commission on Elections, supra). 5.ID.; ID.; FAILURE OF CONGRESS TO MAKE APPORTIONMENT DID NOT MAKE CONGRESS ILLEGAL OR UNCONSTITUTIONAL. The fact that Congress is under legal obligation to make apportionment as required under the Constitution, does not justify the conclusion that failure to comply with such obligation rendered Congress illegal or unconstitutional, or that its Members have become de facto officers. The effect of the omission has been envisioned ia the Constitution (Sec. 5, Art. VI, Const.). The provision does not support the view that, upon the expiration of the period to make their apportionment, a Congress which falls to make it is dissolved or becomes illegal. On the contrary it implies necessarily that Congress shall continue to function with representative districts existing at the time of the expiration of said period. 6.ID.; ID.; NO VALID APPORTIONMENT SINCE ADOPTION OF CONSTITUTION IN 1935; EFFECT THEREOF. Since the adoption of the Constitution in 1935, Congress has not made a valid apportionment as required in the fundamental law.

7.ID.; ID.; SENATE AND HOUSE CONSTITUTED ON DECEMBER 30, 1961 WERE DE JURE BODIES. The Senate and House of Representatives organized or constituted on December 30, 1961 were de jure bodies and the Members thereof were de jure officers. 8.ID.; ID.; FAILURE OF CONGRESS TO DISCHARGE MANDATORY DUTY. Neither our political law, in general, nor our law on public officers, in particular, supports the view that failure to discharge a mandatory duty, whatever it may be, would automatically result in the forfeiture of an office, in the absence of a statute to this effect. 9.ID.; ID.; PROVISIONS OF ELECTION LAW RELATIVE TO ELECTION OF MEMBERS OF CONGRESS IN 1965, NOT REPEALED. The provisions of our Election Law relative to the election of Members of Congress in 1965, were not repealed in consequence of the failure of said body to make an apportionment within three years after the census of 1960. Inasmuch as the general elections in 1965 were presumably held in conformity with said Election Law and the legal provisions creating Congress - with a House of Representatives composed of members elected by qualified voters of representative districts as they existed at the time of said elections - remained in force, we cannot see how said Members of the House of Representatives can be regarded as de facto officers owing to the failure of their predecessors in office to make a reapportionment within the period aforementioned. 10.ID.; DE FACTO DOCTRINE REASON THEREOF. The main reason for the existence of the de facto doctrine is that public interest demands that acts of persons holding under color of title, an office created by a valid statute be, likewise, deemed valid insofar as the public as distinguished from the officer in question - is concerned (Lino Luna vs. Rodriquez, et al., 37 Phil., 192 and other cases). Indeed, otherwise, those dealing with officers and employees of the Government would be entitled to demand from them satisfactory proof of their title to the positions they hold, before dealing with them, or before recognizing their authority or obeying their commands, even if they should act within the limits of the authority vested in their respective offices, positions or employments (Torres vs. Ribo, 81 Phil., 50). One can imagine the great inconvenience, hardships and evils that would result in the absence of the de facto doctrine. 11.ID.; ID.; TITLE OF DE FACTO OFFICER CANNOT BE ASSAILED COLLATERALLY. The title of a de facto officer cannot be assailed collaterally (Nacionalista Party vs. De Vera, 85, Phil., 126). It may not be contested except directly, by quo warranto proceedings. 12.ID.; ID.; VALIDITY OF ACTS OF DE FACTO OFFICER CANNOT BE ASSAILED COLLATERALLY. Neither may the validity of his acts be questioned upon the ground that he is merely a de facto officer (People vs. Gabitanan, 43 Off. Gaz. 3211). And the reasons are obvious: (1) it would be an indirect inquiry into the title to toe

office; and (2) the acts of a de facto officer, if within the competence of his office, are valid, insofar as the public is concerned. 13.ID.; MEANING OF THE TERM "OR". The term "or" has, oftentimes, been held to mean "and," or vice-versa, when the spirit or context of the law warrants it (50 Am. Jur. 267-268). 14.ID.; POWER OF CONGRESS TO APPROVE RESOLUTIONS AMENDING THE CONSTITUTION. There is nothing in the Constitution or in the history thereof that would negate the authority of different Congresses to approve the contested resolutions, or of the same Congress to pass the same in different sessions or different days of the same congressional session. Neither has any plausible reason been advanced to justify the denial of authority to adopt said resolutions on the same day. 15.ID.; MEANING OF TERM "ELECTION" IN ART. XV, CONSTITUTION. There is in this provision nothing to indicate that the "election" therein referred to is a "special", not a general, election. The circumstance that three previous amendments to the Constitution had been submitted to the people for ratification in special elections merely shows that Congress deemed it best to do so under the circumstances then obtaining. It does not negate its authority to submit proposed amendments for ratification in general elections. 16.ID.; LEGISLATION CANNOT BE NULLIFIED FOR FAILURE OF CERTAIN SECTORS TO DISCUSS IT SUFFICIENTLY. A legislation cannot be nullified by reason of the failure of certain sectors of the community to discuss it sufficiently. Its constitutionality or unconstitutionality depends upon no other factors than those existing at the time of the enactment thereof, unaffected by the acts or omissions of law enforcing agencies, particularly those that take place subsequently to the passage or approval of the law. 17.ID.; PUBLIC KNOWLEDGE OF PROPOSED AMENDMENTS. A considerable portion of the people may not know how over 160 of the proposed maximum of representative districts are actually apportioned by RBH No. 1 among the provinces in the Philippines. It is not impossible however, that they are not interested in the detail of the apportionment, or that a careful reading thereof may tend, in their simple minds, to impair a clear vision thereof. Upon the other hand, those who are more sophisticated, may enlighten themselves sufficiently by reading the copies of the proposed amendments posted in public places, the copies kept in the polling places and the text of the contested resolutions as printed in full on the back of the ballots they will use. 18.ID.; JUDICIAL POWER TO NULLIFY EXECUTIVE OR LEGISLATIVE ACTS, NOT VIOLATIVE OF PRINCIPLE OF SEPARATION OF POWERS. The system of checks and balances underlying the judicial power to strike down acts of the Executive or

of Congress transcending the confines set forth in the fundamental law is not in derogation of the principle of separation of powers, pursuant to which each department is supreme within its own sphere.

19.ID.; DETERMINATION OF CONDITIONS FOR SUBMISSION OF AMENDMENTS TO PEOPLE, PURELY LEGISLATIVE. The determination of the conditions under which the proposed amendments shall be submitted to the people is concededly a matter which falls within the legislative sphere. MAKALINTAL, J., concurring: 1.CONSTITUTIONAL LAW; AMENDMENTS TO THE CONSTITUTION; RATIFICATION BY THE PEOPLE; SECTIONS 2 AND 4 OF REPUBLIC ACT 4913 IS SUFFICIENT COMPLIANCE WITH THE REQUIREMENTS OF THE LAW. Considered in itself and without reference to extraneous factors and circumstances, the manner prescribed in Sections 2 and 4 of R.A. 4913 is sufficient for the purpose of having the proposed amendments submitted to the people for their ratification, as enjoined in Section 1, Article XV of the Constitution. I am at a loss to say what else should have been required by the Act to make it adhere more closely to the constitutional requirement. Certainly it would have been out of place to provide, for instance, that governmental officials and employees should go out and explain the amendments to the people, or that they should be the subject of any particular means or form of public discussion. 2.ID., ID.; ID.; SUBMISSION OF AMENDMENTS TO THE PEOPLE AT A GENERAL ELECTION. I reject the argument that the ratification must necessarily be in a special election or plebiscite called for that purpose alone. While such procedure is highly to be preferred, the Constitution speaks simply of "an election at which the amendments are submitted to the people for their ratification," and I do not subscribe to the restrictive interpretation that the petitioners would have on this provision, namely, that it means only a special election. BENGZON, J.P., J., concurring: 1.CONSTITUTIONAL LAW; AMENDMENTS TO THE CONSTITUTION; REPUBLIC ACT 49138. Republic Act 4913, effective June 17, 1967, is an Act submitting to the Filipino people for approval the amendments to the Constitution of the Philippines proposed by the Congress of the Philippines in Resolutions of both Houses Numbered 1 and 3, adopted on March 16, 1967. Said Republic Act fixes the date and manner of the election at which the aforesaid proposed amendments shall be voted upon by the people, and appropriates funds for said election. Resolutions of both Houses Nos.

1 and 3 propose two amendments to the Constitution: the first, to amend Sec. 5 Art. VI, by increasing the maximum membership of the House of Representatives from 120 to 180, apportioning 160 of said 180 seats and eliminating the provision that Congress shall by law make an apportionment within three years after the return of every enumeration; the second, to amend Sec. 16, Art. VI, by allowing Senators and Representatives to be delegates to a constitutional convention without forfeiting their seats. 2.ID.; ID.; ID.; RATIFICATION BY THE PEOPLE IN A SPECIAL ELECTION FOR THE PURPOSE NOT SPECIFICALLY REQUIRED. Nowhere in Sec. 1, Art. XV is it required that the ratification be thru an election solely for that purpose. It only requires that it be at "an election at which the amendments are submitted to the people for their ratification." To join it with an election for candidates to public office, that is, to make it concurrent with such election, does not render it any less an election at which the proposed amendments are submitted to the people for their ratification. No prohibition being found in the plain terms of the Constitution, none should be inferred. Had the framers of the Constitution thought of requiring a special election for the purpose only of the proposed amendments, they could have said so, by qualifying the phrase with some word such as "special" or "solely" or "exclusively". They did not. 3.ID.; ID.; ID.; STATUTE WHICH PROVIDES FOR HOW AND WHEN THE AMENDMENTS ALREADY PROPOSED ARE GOING TO BE VOTED UPON AND APPROPRIATES FUNDS TO CARRY OUT ITS PROVISIONS DOES NOT NEED THE 3/4 VOTE OF CONGRESS IN JOINT SESSION. The submission of proposed amendments can be done thru an ordinary statute passed by Congress. The Constitution does not expressly state by whom the submission shall be undertaken; the rule is that a power not lodged elsewhere under the Constitution is deemed to reside with the legislative body, under the doctrine of residuary powers. Congress therefore validly enacted Republic Act 4913 to fix the details of the date and manner of submitting the proposed amendments to the people for their ratification. Since it does not "propose amendments" in the sense referred to by Sec. 1, Art. XV of the Constitution, but merely provides for how and when the amendments already proposed, are going to be voted upon, the same does not need the 3/4 vote in joint session required in Sec. 1, Art. XV of the Constitution. Furthermore, Republic Act 4913 is an appropriation measure. Sec. 6 thereof appropriates P1,000,000 for carrying out its provisions. Sec. 18, Art. VI of the Constitution states that "All appropriation bills shall originate exclusively in the House of Representatives". Republic Act 4913, therefore, could not have been validly adopted in a joint session, reinforcing the view that Sec. 1, Art. XV does not apply to such a measure providing for the holding of the election to ratify the proposed amendments, which must perforce appropriate funds for its purpose. 4.ID.; ID.; ID.; STATUTE WHICH PROVIDES SUFFICIENT OPPORTUNITY TO THE VOTERS TO CAST AN INTELLIGENT VOTE ON THE PROPOSALS, NOT OFFENSIVE AGAINST THE DUE PROCESS CLAUSE. Republic Act 4913 does

not offend against substantive due process. An examination of the provisions of the law shows no violation of the due process clause of the Constitution. The publication in the Official Gazette at least 20 days before the election, the posting of notices in public buildings not later than Oct. 14, 1967, to remain posted until after the elections, the placing of copies of the proposed amendments in the polling places, aside from printing the same at the back of the ballot, provide sufficient opportunity to the voters to cast an intelligent vote on the proposal. Due process refers only to providing fair opportunity; it does not guarantee that the opportunity given will in fact be availed of; that is the look out of the voter and the responsibility of the citizen. As long as fair and reasonable opportunity to be informed is given, and it is, the due process clause is not infringed. 5.ID.; ID.; RATIFICATION OF; VOTERS TO BE SUFFICIENTLY INFORMED OF THE PROPOSED AMENDMENTS TO INTELLIGENTLY VOTE THEREON; METHOD ADOPTED IN THE CASE AT BAR NOT CONSTITUTIONALLY DEFECTIVE. Non-printing of the provisions to be amended as they now stand, and the printing of the full proposed amendments at the back of the ballot instead of the substance thereof at the face of the ballot, do not deprive the voter of fair opportunity to be informed. The present wording of the Constitution is not being veiled or suppressed from him; he is conclusively presumed to know them and they are available should he want to check on what he is conclusively presumed to know. Should the voters choose to remain ignorant of the present Constitution, the fault does not lie with Congress. For opportunity to familiarize oneself with the Constitution as it stands has been available thru all these years. Perhaps it would have been more convenient for the voters if the present wording of the provisions were also to be printed on the ballot. The same however, is a matter policy. As long as the method adopted provides sufficiently reasonable chance to intelligently vote on the amendments, and I think it does in this case, it is not constitutionally defective. 6.ID.; LEGISLATIVE DEPARTMENT; POWER OF CONGRESS TO PROPOSE AMENDMENTS OR CALL A CONVENTION FOR THAT PURPOSE. Sec. 1, Art. XV states that Congress "may propose amendments or call a convention for that purpose". The term "or", however, is frequently used as having the same meaning as "and" particularly in permissive, affirmative sentences so that the interpretation of the word "or" as "and" in the Constitution in such use will not change its meaning (Vicksburg, S. and P. R. Co. v. Goodenough, 32 So. 404, 411, 108 La. 442). And it should be pointed out that the resolutions proposing amendments (R.B.H. Nos. 1 and 3) are different from that calling for a convention (R.B.H. No. 2). Surely, if Congress deems it better or wise to amend the Constitution before a convention caused for is elected, it should not be fettered from doing so. For our purposes in this case, suffice it to note that the Constitution does not prohibit it from doing so. 7.ID.; ID.; MEMBERS OF CONGRESS; REPRESENTATION ACCORDING TO DISTRICTS; STATUS QUO RETAINED IN THE ABSENCE OF APPORTIONMENT

REQUIRED BY LAW. Sec. 5 of Art. VI of the Constitution provides in part that "The Congress shall by law make an apportionment within three years after the return of every enumeration, and not otherwise". It however further states in the next sentence: "Until such apportionment shall have been made, the House of Representatives shall have the same number of Members as that fixed by law for the National Assembly, who shall be elected by the qualified electors from the present Assembly districts". The failure of Congress, therefore, to pass a valid redistricting law since the time the above provision was adopted, does not render the present districting illegal or unconstitutional. For the Constitution itself provides for its continuance in such cases, rendering legal and de jure the status quo. SANCHEZ J., concurring: 1.CONSTITUTIONAL LAW; AMENDMENTS TO THE CONSTITUTION; AN EXPRESSION OF THE PEOPLE'S SOVEREIGN WILL. A constitutional amendment is not a temporary expedient. Unlike a statute which may suffer amendments three or more times in the same year, it is intended to stand the test of time. It is an expression of the people's sovereign will. 2.ID.; ID.; RATIFICATION BY THE PEOPLE; SUBMISSION OF PROPOSED AMENDMENTS; GOVERNMENT TO EXERT EFFORTS TO INFORM EVERY CITIZEN OF THE PROVISIONS TO BE AMENDED. The words "submitted to the people for ratification", if construed in the light of the nature of the Constitution a fundamental charter that is legislation direct from the people, an expression of their sovereign will mean that it can only be amended by the people expressing themselves according to the procedures ordained by the Constitution. Therefore, amendments must be fairly laid before the people for their blessing or spurning. The people are not to be mere rubber stamps. They are not to vote blindly. They must be afforded ample opportunity to mull over the original provisions, compare them with the proposed amendments and try to reach a conclusion as the dictates of their conscience suggest, free from the incubus of extraneous or possibly insidious influences. We believe the word "submitted" can only mean that the government, within its maximum capabilities, should strain every effort to inform every citizen of the provisions to be amended, and the proposed amendments and the meaning, nature and effects thereof. By this, we are not to be understood as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be reached, then there is no submission within the meaning of the word as intended by the framers of the Constitution. What the Constitution in effect directs is that the government, in submitting an amendment for ratification, should put every instrumentality or agency within its structural framework to enlighten the people, educate them with respect to their act of ratification or rejection. For, as we have earlier stated, one thing is submission and another is ratification. There must be fair submission, intelligent consent or rejection. If with all these safeguards the people still approve the

amendment no matter how prejudicial it is to them, then so be it. For, the people decree their own fate.

3.ID.; ID.; ID.; ID.; NO PROPER SUBMISSION WHERE PEOPLE NOT SUFFICIENTLY INFORMED OF THE AMENDMENT TO BE VOTED UPON. If the people are not sufficiently informed of the amendments to be voted upon, to conscientiously deliberate thereon, to express their will in a genuine manner, it cannot be said that in accordance with the constitutional mandate, "the amendments are submitted to the people for their ratification." 4.ID.; ID.; ID.; ID.; RA 4913 VIOLATIVE OF THE CONSTITUTION FOR PRESCRIBING A PROCEDURE WHICH DOES NOT EFFECTIVELY BRING THE MATTER TO THE PEOPLE. When the voters do not have the benefit of proper notice of the proposed amendments thru dissemination by publication in extenso and people do not have at hand the necessary data on which to base their stand on the merits and demerits of said amendments, there is no proper submission of the proposed constitutional amendments within the meaning and intendment of Section 1, Article XV of the Constitution. REYES, J.B.L., J., concurring: 1.CONSTITUTIONAL LAW; AMENDMENTS TO THE CONSTITUTION; RATIFICATION BY THE PEOPLE; SUBMISSION OF THE PROPOSED AMENDMENTS AT A SPECIAL ELECTION CALLED FOR THE PURPOSE. The framers of the Constitution, aware of the fundamental character thereof, and of the need of giving it as much stability as is practicable, could have only meant that any amendments thereto should be debated, considered and voted upon at an election wherein the people could devote undivided attention to the subject, That this was the intention and the spirit of the provision is corroborated in the case of all other constitutional amendments in the past, that were submitted to and approved in special elections exclusively devoted to the issue whether the legislature's amendatory proposals should be ratified or not. FERNANDO, J., concurring: 1.CONSTITUTIONAL LAW; AMENDMENTS TO THE CONSTITUTION; JUDICIAL INQUIRY AS TO THE AMENDING PROCESS APPROPRIATE TO ASSURE UTMOST COMPLIANCE WITH THE CONSTITUTIONAL REQUIREMENTS. In Mabanag v. Lopez Vito, 78 Phil. 1 (1947) this Court through Justice Tuazon followed Coleman v. Miller, 307 US 433 (1939) in its holding that certain aspects of the amending process may be considered political. His opinion quoted with approval the view of Justice

Black, to which three other members of the United States Supreme Court agreed, that the process itself is political in its entirety, "from submission until am amendment becomes part of the Constitution, and is not subject to judicial guidance, control or interference at any point." In a sense that would solve the matter neatly. The judiciary would be spared the at times arduous and in every case soul-searching process of determining whether the procedure for amendments required by the Constitution has been followed. At the same time, without impugning the motives of Congress, which cannot be judicially inquired into at any rate, it is not beyond the realm of possibility that a failure to observe the requirements of Article XV would occur. In the event that judicial intervention is sought, to rely automatically on the theory of political question to avoid passing on such a matter of delicacy might under certain circumstances be considered, and rightly so, as nothing less than judicial abdication or surrender.

DECISION

CONCEPCION, C.J :
p

G.R. No. L-28196 is an original action for prohibition, with preliminary injunction. Petitioner therein prays for judgment: 1)Restraining: (a) the Commission on Elections from enforcing Republic Act No. 4913, or from performing any act that will result in the holding of the plebiscite for the ratification of the constitutional amendments proposed in Joint Resolutions Nos. 1 and 3 of the two Houses of Congress of the Philippines, approved on March 16, 1967; (b) the Director of Printing from printing ballots, pursuant to said Act and Resolutions; and (c) the Auditor General from passing in audit any disbursement from the appropriation of funds made in said Republic Act No. 4913; and 2)declaring said Act unconstitutional and void. The main facts are not disputed. On March 16, 1967, the Senate and the House of Representatives passed the following resolutions: 1.R.B.H. (Resolution of Both Houses) No. 1, proposing Philippines, be amended so as to increase the membership of the House of Representatives from a maximum of 120, as provided in the present Constitution, to a maximum of 180, to be apportioned among the several provinces as nearly as may be according to the number of their respective inhabitants, although each province shall have, at least, one (1) member;

2.R.B.H. No. 2, calling a convention to propose amendments to said Constitution, the convention to be composed of two (2) elective delegates from each representative district, to be "elected in the general elections to be held on the second Tuesday of November, 1971;" and 3.R. B. H. No. 3, proposing that Section 16, Article VI, of the same Constitution, be amended so as to authorize senators and members of the House of Representatives to become delegates to the aforementioned constitutional convention, without forfeiting their respective seats in Congress. Subsequently, Congress passed a bill, which, upon approval by the President, on June 17, 1967, became Republic Act No. 4913, providing that the amendments to the Constitution proposed in the aforementioned Resolutions Nos. 1 and 3 be submitted, for approval by the people, at the general elections which shall be held on November 14, 1967. The petition in L-28196 was filed on October 21, 1967. At the hearing thereof, on October 28, 1967, the Solicitor General appeared on behalf of respondents. Moreover, Atty. Juan T. David and counsel for the Philippine Constitution Association hereinafter referred to as the PHILCONSA were allowed to argue as amici curiae. Said counsel for the PHILCONSA, Dr. Salvador Araneta, likewise, prayed that the decision in this case be deferred until after a substantially identical case brought by said organization before the Commission on Elections, 1 which was expected to decide it any time, and whose decision would, in all probability, be appealed to this Court had been submitted thereto for final determination, for a joint decision on the identical issues raised in both cases. In fact, on October 31, 1967, the PHILCONSA filed with this Court the petition in G.R. No. L-28224 for review by certiorari of the resolution of the Commission on Elections 2 dismissing the petition therein. The two (2) cases were deemed submitted for decision on November 8, 1967, upon the filing of the answer of respondent, the memorandum of the petitioner and the reply memorandum of respondent in L-28224. Ramon A. Gonzales, the petitioner in L-28196, is admittedly a Filipino citizen, a taxpayer, and a voter. He claims to have instituted case L-28196 as a class suit, for and in behalf of all citizens, taxpayers, and voters similarly situated. Although respondents and the Solicitor General have filed an answer denying the truth of this allegation, upon the ground that they have no knowledge or information to form a belief as to the truth thereof, such denial would appear to be a perfunctory one. In fact, at the hearing of case L-28196, the Solicitor General expressed himself in favor of a judicial determination of the merits of the issues raised in said case. The PHILCONSA, petitioner in L-28224, is admittedly a corporation duly organized and existing under the laws of the Philippines, and a civic, non-profit and non-partisan organization the objective of which is to uphold the rule of law in the Philippines and to

defend its Constitution against erosions or onslaughts from whatever source. Despite his aforementioned statement in L-28196, in his answer in L- 28224 the Solicitor General maintains that this Court has no jurisdiction over the subject-matter of L-28224, upon the ground that the same is "merely political' as held in Mabanag vs. Lopez Vito. 3 Senator Arturo M. Tolentino, who appeared before the Commission on Elections and filed an opposition to the PHILCONSA petition therein, was allowed to appear before this Court and objected to said petition upon the ground a) that the Court has no jurisdiction either to grant the relief sought in the petition, or to pass upon the legality of the composition of the House of Representatives; b) that the petition, if granted, would, in effect, render inoperational the legislative department; and c) that "the failure of Congress to enact a valid reapportionment law . . . does not have the legal effect of rendering illegal the House of Representatives elected thereafter, nor of rendering its acts null and void." As early as Angara vs. Electoral Commission, 4 this Court speaking through one of the leading members of the Constitutional Convention and a respected professor of Constitutional Law, Dr. Jose P. Laurel declared that "the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of power between the several departments and among the integral or constitutional constituent units thereof." It is true that in Mabanag vs. Lopez Vito, 5 this Court, characterizing the issue submitted thereto as a political one, declined to pass upon the question whether or not a given number of votes cast in Congress in favor of a proposed amendment to the Constitution which was being submitted to the people for ratification satisfied the three-fourths vote requirement of the fundamental law. The force of this precedent has been weakened, however, by Suanes vs. Chief Accountant of the Senate, 6 Avelino vs. Cuenco, 7 Taada vs. Cuenco, 8 and Macias vs. Commission on Elections. 9 In the first, we held that the officers and employees of the Senate Electoral Tribunal are under its supervision and control, not of that of the Senate President, as claimed by the latter; in the second, this Court proceeded to determine the number of Senators necessary for a quorum in the Senate; in the third, we nullified the election, by Senators belonging to the party having the largest number of votes in said chamber, purporting to act on behalf of the party having the second largest number of votes therein, of two (2) Senators belonging to the first party, as members, for the second party, of the Senate Electoral Tribunal; and in the fourth, we declared unconstitutional an act of Congress purporting to apportion the representative districts for the House of Representatives, upon the ground that the apportionment had not been made as nearly as may be possible according to the number of inhabitants of each province. Thus we rejected the theory, advanced in these four (4) cases, that the issues therein raised were political questions the determination of which is beyond judicial review.

Indeed, the power to amend the Constitution or to propose amendments thereto is not included in the general grant of legislative powers to Congress. 10 It is part of the inherent powers of the people as the repository of sovereignty in a republican state, such as ours 11 to make, and, hence, to amend their own Fundamental Law. Congress may propose amendments to the Constitution merely because the same explicitly grants such power. 12 Hence, when exercising the same, it is said that Senators and Members of the House of Representatives act, not as members of Congress but as component elements of a constituent assembly. When acting as such, the members of Congress derive their authority from the Constitution, unlike the people, when performing the same function, 13 for their authority does not emanate from the Constitution they are the very source of all powers of government, including the Constitution itself. Since, when proposing, as a constituent assembly, amendments to the Constitution, the members of Congress derive their authority from the Fundamental Law, it follows, necessarily, that they do not have the final say on whether or not their acts are within or beyond constitutional limits. Otherwise, they could brush aside and set the same at naught, contrary to the basic tenet that ours is a government of laws, not of men, and to the rigid nature of our Constitution. Such rigidity is stressed by the fact that, the Constitution expressly confers upon the Supreme Court 14 the power to declare a treaty unconstitutional, 15 despite the eminently political character of the treaty-making power. In short, the issue whether or not a Resolution of Congress acting as a constituent assembly violates the Constitution, is essentially justiciable, not political, and, hence, subject to judicial review, and, to the extent that this view may be inconsistent with the stand taken in Mabanag vs. Lopez Vito, 16 the latter should be deemed modified accordingly. The Members of the Court are unanimous on this point. THE MERITS Section 1 of Article XV of the Constitution, as amended, reads:
"The Congress in joint session assembled by a vote of three fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to this Constitution or call a convention for that purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification."

Pursuant to this provision, amendments to the constitution may be proposed, either by Congress, or by a convention called by Congress for that purpose. In either case, the vote of "three-fourths of all the members of the Senate and of the House of Representatives voting separately" is necessary. And, "such amendments shall be valid as part of the "Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification."

In the cases at bar, it is conceded that the R. B. H. Nos. 1 and 3 have been approved by a vote of three-fourths of all the members of the Senate and of the House of Representatives voting separately. This, notwithstanding, it is urged that said resolutions are null and void because: 1.The Members of Congress, which approved the proposed amendments, as well as the resolution calling a convention to propose amendments, are, at best, de facto Congressmen; 2.Congress may adopt either one of two alternatives propose amendments or call a convention therefor but may not avail of both that is to say, propose amendment and call a convention at the same time; 3.The election, in which proposals for amendments to the Constitution shall be submitted for ratification, must be a special election, not a general election, in which officers of the national and local governments such as the elections scheduled to be held on November 14, 1967 will be chosen; and 4.The spirit of the Constitution demands that the election, in which proposals for amendment shall be submitted to the people for ratification, must be held under such conditions which, allegedly, do not exist as to give the people a reasonable opportunity to have a fair grasp of the nature and implications of said amendments. Legality of Congress and Legal Status of the Congressmen The first objection is based upon Section 5, Article VI, of the Constitution, which provides:
"The House of Representatives shall be composed of not more than one hundred and twenty Members who shall be apportioned among the several provinces as nearly as may be according to the number of their respective inhabitants, but each province shall have at least one Member. The Congress shall by law make an apportionment within three years after the return of every enumeration, and not otherwise. Until such apportionment shall have been made, the House of Representatives shall have the same number of Members as that fixed by law for the National Assembly, who shall be elected by the qualified electors from the present Assembly districts. Each representative district shall comprise, as far as practicable, contiguous and compact territory."

It is urged that the last enumeration or census took place in 1960; that, no apportionment having been made within three (3) years thereafter, the Congress of the Philippines and/or the election of its Members became illegal; that Congress and its Members, likewise, became a de facto Congress and/or de facto congressmen, respectively; and that,

consequently, the disputed Resolutions, proposing amendments to the Constitution, as well as Republic Act No. 4913, are null and void. It is not true, however, that Congress has not made an apportionment within three years after the enumeration or census made in 1960. It did actually pass a bill, which became a Republic Act No, 3040, 17 purporting to in make said apportionment. This Act was, however, declared unconstitutional, upon the ground that the apportionment therein undertaken had not been made according to the number of inhabitants of the different provinces of the Philippines. 18 Moreover, we are unable to agree with the theory that, in view of the failure of Congress to make a valid apportionment within the period stated in the Constitution, Congress became an "unconstitutional Congress" and that, in consequence thereof, the Members of its House of Representatives are de facto officers. The major premise of this process of reasoning is that the constitutional provision on "apportionment within three years after the return of every enumeration, and not otherwise," is mandatory. The fact that Congress is under legal obligation to make said apportionment does not justify, however, the conclusion that failure to comply with such obligation rendered Congress illegal or unconstitutional, or that its Members have become de facto officers. It is conceded that, since the adoption of the Constitution in 1935, Congress has not made a valid apportionment as required in said fundamental law. The effect of this omission has been envisioned in the Constitutional pursuant to which:
". . . Until such apportionment shall have been made, the House of Representatives shall have the same number of Members as that fixed by law for the National Assembly, who shall be elected by the qualified electors from the present Assembly districts . . ."

The provision does not support the view that, upon the expiration of the period to make the apportionment, a Congress which fails to make it is dissolved or becomes illegal. On the contrary, it implies necessarily that Congress shall continue to function with the representative districts existing at the time of the expiration of said period. It is argued that the above-quoted provision refers only to the elections held in 1935. This theory assumes that an apportionment had to be made necessarily before the first elections to be held after the inauguration of the Commonwealth of the Philippines, or in 1938. 19 The assumption is, however, unwarranted, for there had been no enumeration in 1935, and nobody could foretell when it would be made. Those who drafted and adopted the Constitution in 1935 could be certain, therefore, that the three-year period, after the earliest possible enumeration, would expire after the elections in 1938. What is more, considering that several provisions of the Constitution, particularly those on the legislative department, were amended in 1940, by establishing a bicameral

Congress, those who drafted and adopted said amendment, incorporating therein the provision of the original Constitution regarding the apportionment of the districts for representatives, must have known that the three-year period therefor would expire after the elections scheduled to be held and actually held in 1941. Thus, the events contemporaneous with the framing and ratification of the original Constitution in 1935 and of the amendment thereof in 1940 strongly indicate that the provision concerning said apportionment and the effect of the failure to make it were expected to be applied to conditions obtaining after the elections in 1935 and 1938, and even after subsequent elections. Then again, since the report of the Director of the Census on the last enumeration was submitted to the President on November 30, 1960, it follows that the three year period to make the apportionment did not expire until 1963, or after the Presidential Elections in 1961. There can be no question, therefore, that the Senate and the House of Representatives organized or constituted on December 30, 1961, were de jure bodies, and that the Members thereof were de jure officers. Pursuant to the theory of petitioners herein upon expiration of said period of three years, or late in 1963, Congress became illegal and its Members, or at least, those of the House of Representatives, became illegal holders of their respective offices, and were de facto officers.

Petitioners do not allege that the expiration of said three-year period, without a reapportionment, had the effect of abrogating or repealing the legal provision creating Congress, or, at least, the House of Representatives, and we are not aware of any rule or principle of law that would warrant such conclusion. Neither do they allege that the term of office of the members of said House automatically expired or that they ipso facto forfeited their seats in Congress, upon the lapse of said period for reapportionment. In fact, neither our political law, in general, nor our law on public officers, in particular, supports the view that failure to discharge a mandatory duty, whatever it may be, would automatically result in the forfeiture of an office, in the absence of a statute to this effect. Similarly, it would seem obvious that the provisions of our Election Law relative to the election of Members of Congress in 1965 were not repealed in consequence of the failure of said body to make an apportionment within three (3) years after the census of 1960. Inasmuch as the general elections in 1965 were presumably held in conformity with said Election Law, and the legal provisions creating Congress with a House of Representatives composed of members elected by qualified voters of representative districts as they existed at the time of said elections remained in force, we can not see how said Members of the House of Representatives can be regarded as de facto officers owing to the failure of their predecessors in office to make a reapportionment within the period aforementioned.

Upon the other hand, the Constitution authorizes the impeachment of the President, the Vice-President, the Justices of the Supreme Court and the Auditor General for, inter alia, culpable violation of the Constitution, 20 the enforcement of which is, not only their mandatory duty, but, also their main function. This provision indicates that, despite the violation of such mandatory duty, the title to their respective offices remains unimpaired, until dismissal or ouster pursuant to a judgment of conviction rendered in accordance with Article IX of the Constitution. In short, the loss of office or the extinction of title thereto is not automatic. Even if we assumed, however, that the present Members of Congress are merely de facto officers, it would not follow that the contested resolutions and Republic Act No. 4913 are null and void. In fact the main reason for the existence of the de facto doctrine is that public interest demands that acts of persons holding, under color of title, an office created by a valid statute be, likewise, deemed valid insofar as the public as distinguished from the officer in question is concerned 21 . Indeed, otherwise, those dealing with officers and employees of the government would be entitled to demand from them satisfactory proof of their title to the position they hold, before dealing with them, before recognizing their authority or obeying their commands, even if they should act within the limits of the authority vested in their respective offices, positions or employments. 22 One can imagine the great inconvenience, hardships and evils that would result in the absence of the de factodoctrine. As a consequence the title of a de facto officer cannot be assailed collaterally. 23 It may not be contested except directly, by quo warranto proceedings. Neither may the validity of his acts be questioned upon the ground that he is merely a de facto officer. 24 And the reasons are obvious: (1) it would be an indirect inquiry into the title to the office; and (2) the acts of a de facto officer, if within the competence of his office, are valid, insofar as the public is concerned. It is argued that the foregoing rules do not apply to the cases at bar because the acts therein involved have not been completed and petitioners herein are not third parties. This pretense is untenable. It is inconsistent with Tayko vs. Capistrano. 25 In that case one of the parties to a suit being heard before Judge Capistrano objected to his continuing to hear the case, for the reason that, meanwhile, he had reached the age of retirement. This Court held that the objection could not be entertained, because the Judge was at least, a de facto Judge, whose title can not be assailed collaterally. It should be noted that Tayko was not a third party insofar as the Judge was concerned. Tayko was not of the parties in the aforementioned suit. Moreover, Judge Capistrano had not as yet, finished hearing the case, much less rendered a decision therein. No rights had vested in favor of any of the parties, in consequence of the acts of said Judge. Yet, Tayko's objection was overruled. Needless to say, insofar as Congress is concerned , its acts, as regards the Resolutions herein contested the Republic Act No. 4913, are complete. Congress has nothing to do in connection therewith.

The Court is, also, unanimous in holding that the objection under consideration is untenable. Alternatives Available to Congress. Atty. Juan T. David, as amicus curiae maintains that Congress may either propose amendments to the Constitution or call a convention for that purpose, but it cannot do both, at the same time. This theory is based upon the fact that the two (2) alternatives are connected in the Constitution by the disjunctive "or." Such basis is, however, a weak one, in the absence of other circumstances and none has been brought to our attention supporting the conclusion drawn by the amicus curiae. In fact, the term "or" has, oftentimes, been held to mean "and," or vice-versa, when the spirit or context of the law warrants it. 26 It is, also, noteworthy that R.B.H. Nos. 1 and 3 propose amendments to the constitutional provisions on Congress, to be submitted to the people for ratification on November 14, 1967, whereas R.B.H. No. 2 calls for a convention in 1971, to consider proposals for amendment to the Constitution, in general In other words, the subject- matter of R.B.H. No. 2 is different from that of R.B.H. Nos. 1 and 3. Moreover, the amendments proposed under R.B.H. Nos. 1 and 3, will be submitted for ratification several years before those that may be proposed by the constitutional convention called in R.B.H. No. 2. Again, although the three (3) resolutions were passed on the same date, they were taken up and put to a vote separately, or one after the other. In other words, they were not passed at the same time. In any event, we do not find, either in the Constitution, or in the history thereof, anything that would negate the contested of different Congresses to approve the contested Resolutions, or of the same Congress to pass the same in different sessions or different days of the same congressional session. And, neither has any plausible reason been advanced to justify the denial of authority to adopt said resolutions on the same day. Counsel ask: Since Congress has decided to call a constitutional convention to propose amendments, why not let the whole thing be submitted to said convention, instead of, likewise, proposing some specific amendments, to be submitted for ratification before said convention is held? The force of this argument must be conceded, but the same impugns the wisdom of the action taken by Congress, not its authority to take it. One seeming purpose thereof is to permit Members of Congress to run for election as delegates to the constitutional convention and participate in the proceedings therein, without forfeiting their seats in Congress. Whether or nothing should be done is a political question, not subject to review by the courts of justice. On this question there is no disagreement among the members of the Court.

May Constitutional Amendments Be Submitted for Ratification in a General Election? Article XV of the Constitution provides:
". . . The Congress in joint session assembled, by a vote of three- fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to this Constitution or call a convention for that purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification."

There is in this provision nothing to indicate that the "election" therein referred to is a "special," not a general election. The circumstance that three previous amendments to the Constitution had been submitted to the people for ratification in special elections merely shows that Congress deemed it best to do so under the circumstances then obtaining. It does not negate its authority to submit proposed amendments for ratification in general elections. It would be better, from the viewpoint of a thorough discussion of the proposed amendments, that the same be submitted to the people's approval independently of the election of public officials. And there is no denying the fact that an adequate appraisal of the merits and demerits of proposed amendments is likely to be overshadowed by the great attention usually commanded by the choice of personalities involved in general elections, particularly when provincial and municipal officials are to be chosen. But, then, these considerations are addressed to the wisdom of holding a plebiscite simultaneously with the election of public officers. They do not deny the authority of Congress to choose either alternative, as implied in the term "election" used, without qualification, in the above-quoted provision of the Constitution. Such authority becomes even more patent when we consider: (1) that the term "election," normally refers to the choice or selection of candidates to public office by popular vote; and (2) that the word used in Article V of the Constitution concerning the grant of suffrage to women is, not "election," but "plebiscite."

Petitioners maintain that the term "election," as used in Section 1 of Art. XV of the Constitution, should be construed as meaning a special election Some members of the Court even feel that said term ("election") refers to a "plebiscite," without any "election," general or special, of public officers. They opine that constitutional amendments are, in general, if not always, of such important, if not transcendental and vital nature as to demand that the attention of the people be focused exclusively on the subject-matter thereof, so that their votes thereon may reflect no more than their intelligent, impartial

and considered view on the merits of the proposed amendments, unimpaired, or, at least, undiluted by extraneous, if not insidious factors, let alone the partisan political considerations that are likely to affect the selection of elective officials. This, certainly, is a situation to be hoped for. It is a goal the attainment of which should be promoted. The ideal conditions, are, however, one thing. The question whether the Constitution forbids the submission of proposals for amendment to the people except under such conditions, is another thing. Much as the writer and those who concur in this opinion admire the contrary view, they find themselves unable to subscribe thereto without, in effect, reading into the Constitution what they believe is not written thereon and can not fairly be deduced from the letter thereof, since the spirit of the law should not be a matter of sheer speculation. The majority view although the votes in favor thereof are insufficient to declare Republic Act No. 4913 unconstitutional as ably set forth in the opinion penned by Mr. Justice Sanchez, is, however, otherwise. Would the Submission now of the Contested Amendments to the People Violate the Spirit of the Constitution? It should be noted that the contested Resolutions were approved on March 16, 1967, so that, by November 14, 1967, our citizenry shall have had practically eight (8) months to be informed on the amendments in question. Then again, Section 2 of Republic Act No. 4913 provides: (1)that "the amendments shall be published in three consecutive issues of the Official Gazette, at least twenty days prior to the election; "(2)that "a printed copy of the proposed amendments shall be posted in a conspicuous place in every municipality, city and provincial office building and in every polling place not later than October 14, 1967," and that said copy "shall remain posted therein until after the election; "(3)that "at least five copies of said amendment shall be kept in each polling place, to be made available for examination by the qualified electors during election day; "(4)that "when practicable, copies in the principal native languages, as may be determined by the Commission on Elections, shall be kept in each polling place; "(5)that "the Commission on Elections shall make available copies of said amendments in English, Spanish and, whenever practicable, in the principal native languages, for free distribution;" and

(6)that the contested Resolutions "shall be printed in full" on the back of the ballots which shall be used on November 14, 1967. We are not prepared to say that the foregoing measures are palpably inadequate to comply with the constitutional requirement that proposals for amendment be "submitted to the people for their ratification," and that said measures are manifestly insufficient, from a constitutional viewpoint, to inform the people of the amendments sought to be made. These were substantially the same means availed of to inform the people of the subject submitted to them for ratification, from the original Constitution down to the Parity Amendment. Thus, referring to the original Constitution, Section 1 of Act No. 4200, provides:
"Said Constitution, with the Ordinance appended thereto, shall be published in the Official Gazette, in English and in Spanish, for three consecutive issues at least fifteen days prior to said election, and a printed copy of said Constitution, with the Ordinance appended thereto, shall be posted in a conspicuous place in each municipal and provincial government office building and in each polling place not later than the twenty-second day of April, nineteen hundred and thirtyfive, and shall remain posted therein continually until after the termination of the election. At least ten copies of the Constitution with the Ordinance appended thereto, in English and in Spanish, shall be kept at each polling place available for examination by the qualified electors during election day. Whenever practicable, copies in the principal local dialects as may be determined by the Secretary of the Interior shall also be kept in each polling place."

The provision concerning woman's suffrage in Section 1 of Commonwealth Act No. 34, reading:
"Said Article V of the Constitution shall be published in the Official Gazette, in English and in Spanish, for three consecutive issues at least fifteen days prior to said election, and the said Article V shall be posted in a conspicuous place in the municipal and provincial office building and in each polling place not later than the twenty-second day of April, nineteen hundred and thirty-seven, and shall remain posted therein continually until after the termination of the plebiscite. At least ten copies of the said Article V of the Constitution, in English and in Spanish, shall be kept at each polling place available for examination by the qualified electors during the plebiscite. Whenever practicable, copies in the principal native languages, as may be determined by the Secretary of the Interior, shall also be kept in each polling place."

Similarly, Section 2, Commonwealth Act No. 517, referring to the 1940 amendments, is of the following tenor:

"The said amendments shall be published in English and Spanish in three consecutive issues of the Official Gazette at least twenty days prior to the election. A printed copy thereof shall be posted in a conspicuous place in every municipal, city, and provincial government office building and in every polling place not later than May eighteen, nineteen hundred and forty, and shall remain posted therein until after the election. At least ten copies of said amendments shall be kept in each polling place to be made available for examination by the qualified electors during election day. When practicable, copies in the principal native languages, as may be determined by the Secretary of the Interior, shall also be kept therein."

As regards the Parity Amendment, Section 2 of Republic Act No. 73 is to the effect that:
"The said amendment shall be published in English and Spanish in three consecutive issues of the Official Gazette at least twenty days prior to the election. A printed copy thereof shall be posted in a conspicuous place in every municipal, city and provincial government office building and in every polling place not later than February eleven, nineteen hundred and forty-seven, and shall remain posted therein until after the election. At least, ten copies of the said amendment shall be kept in each polling place to be made available for examination by the qualified electors during election day. When practicable, copies in the principal native languages, as may be determined by the Commission on Elections, shall also be kept in each polling place."

The main difference between the present situation and that obtaining in connection with the former proposals does not arise from the law enacted therefor. The difference springs from the circumstance that the major political parties had taken sides on previous amendments to the Constitution except, perhaps, the woman's suffrage and, consequently, debated thereon at some length before the plebiscite took place. Upon the other hand, said political parties have not seemingly made an issue on the amendments now being contested and have, accordingly, refrained from discussing the same in the current political campaign. Such debates or polemics as may have taken place on a rather limited scale on the latest proposals for amendment, have been due principally to the initiative of a few civic organizations and some militant members of our citizenry who have voiced their opinion thereon. A legislation cannot, however, be nullified by reason of the failure of certain sectors of the community to discuss it sufficiently. Its constitutionality or unconstitutionality depends upon no other factors than those existing at the time of the enactment thereof, unaffected by the acts or omission of law enforcing agencies, particularly those that take place subsequently to the passage or approval of the law. Referring particularly to the contested proposals for amendment, the sufficiency or insufficiency, from a constitutional angle, of the submission thereof for ratification to the people on November 14, 1967, depends in the view of those who concur in this opinion, and who, insofar as this phase of the case, constitute the minority upon

whether the provisions of Republic Act No. 4913 are such as to fairly apprise the people of the gist, the main idea or the substance of said proposals, which is under R.B.H. No. 1 the increase of the maximum number of seats in the House of Representatives, from 120 to 180, and under R.B.H. No. 3 the authority given to the members of Congress to run for delegates to the Constitutional Convention and, if elected thereto, to discharge the duties of such delegates, without forfeiting their seats in Congress. We who constitute the minority believe that Republic Act No. 4913 satisfies such requirement and that said Act is, accordingly, constitutional. A considerable portion of the people may not know how over 160 of the proposed maximum of representative districts are actually apportioned by R.B.H. No. 1 among the provinces in the Philippines. It is not improbable, however, that they are not interested in the details of the apportionment, or that a careful reading thereof may tend, in their simple minds, to impair a clear vision thereof. Upon the other hand, those who are more sophisticated, may enlighten themselves sufficiently by reading the copies of the proposed amendments posted in public places, the copies kept in the polling places and the text of the contested resolutions, as printed in full on the back of the ballots they will use.

It is, likewise, conceivable that as many people, if not more, may fail to realize or envisage the effect of R.B.H. No. 3 upon the work of the Constitutional Convention or upon the future of our Republic. But, then, nobody can foretell such effect with certainty. From our viewpoint, the provisions of Article XV of the Constitution are satisfied so long as the electorate knows that R.B.H. No. 3 permits Congressmen to retain their seats as legislators, even if they should run for and assume the functions of delegates to the Convention. We are impressed by the factors considered by our distinguished and esteemed brethren, who opine otherwise, but, we feel that such factors affect the wisdom of Republic Act No. 4913 and that of R.B.H. Nos. 1 and 3, not the authority of Congress to approve the same. The system of checks and balances underlying the judicial power to strike down acts of the Executive or of Congress transcending the confines set forth in the fundamental law is not in derogation of the principle of separation of powers, pursuant to which each department is supreme within its own sphere. The determination of the conditions under which the proposed amendments shall be submitted to the people is concededly a matter which falls within the legislative sphere. We do not believe it has been satisfactorily shown that Congress has exceeded the limits thereof in acting Republic Act No. 4913. Presumably, it could have done something better to enlighten the people on the subjectmatter thereof. But, then, no law is perfect. No product of human endeavor is beyond improvement. Otherwise, no legislation would be constitutional and valid. Six (6)

Members of this Court believe, however, said Act and R.B.H. Nos. 1 and 3 violate the spirit of the Constitution. Inasmuch as there are less than eight (8) votes in favor of declaring Republic Act 4913 and R.B.H. Nos. 1 and 3 unconstitutional and invalid, the petitions in these two (2) cases must be, as they are hereby, dismissed, and the writs therein prayed for denied, without special pronouncement as to costs. It is so ordered. Makalintal and Bengzon, J.P., JJ., concur.

EN BANC
[G.R. No. 90878. January 29, 1990.] PABLITO V. SANIDAD, petitioner, vs. THE COMMISSION ON ELECTIONS, respondent. SYLLABUS 1.CONSTITUTIONAL LAW; COMELEC RESOLUTION NO. 2167, SECTION 19 THEREOF; HELD UNCONSTITUTIONAL AS AN ABRIDGMENT OF FREEDOM OF EXPRESSION. Section 19 of Comelec Resolution No. 2167, which provides: "Section 19. Prohibition on columnists, commentators or announcers. During the plebiscite campaign period, on the day before and on plebiscite day, no mass media columnist, commentator, announcer or personality shall use his column or radio or television time to campaign for or against the plebiscite issues." Respondent Comelec maintains that the questioned provision of Comelec Resolution No. 2167 is not violative of the constitutional guarantees of the freedom of expression and of the press. Rather, it is a valid implementation of the power of the Comelec to supervise and regulate media during election or plebiscite periods as enunciated in Article IX-C, Section 4 of the 1987 Constitution of the Republic of the Philippines. It is stated further by respondent that Resolution 2167 does not absolutely bar petitioner from expressing his views and or from campaigning for or against the Organic Act. He may still express his views or campaign for or against the act through the Comelec space and airtime. This is provided under Sections 90 and 92 of BP 881. The contention is without merit. While the limitation does not absolutely bar petitioner's freedom of expression, it is still a restriction on his choice of the forum where he may express his view. No reason was advanced by respondent to justify such abridgement. We hold that this form of regulation is tantamount to a restriction of petitioner's freedom of expression for no justifiable reason. Plebiscite issues are matters of public concern and importance. The people's right to be informed and to be able to freely and intelligently make a decision would be better served by access to an unabridged discussion of the issues, including the forum. The people affected by the issues presented in a plebiscite should not be unduly burdened by restrictions on the forum where the right to expression may be exercised. Comelec spaces and Comelec radio time may provide a forum for expression but they do not guarantee full dissemination of information to the public concerned because they are limited to either specific portions in newspapers or to specific radio or television times. 2.ID.; RULING IN THE CASE OF BADOY JR. V. COMELEC (L-32546, OCTOBER 16, 1970), NOT APPLICABLE IN A PLEBISCITE; REASON THEREFOR. In the case of Badoy, Jr. v. Comelec, L-32546, Oct. 16, 1970, where the constitutionality of the prohibition of certain forms of election propaganda was assailed, We ruled therein that

the prohibition is a valid exercise of the police power of the state "to prevent the perversion and prostitution of the electoral apparatus and of the denial of equal protection of the laws." The evil sought to be prevented in an election which led to Our ruling in that case does not obtain in a plebiscite. In a plebiscite, votes are taken in an area on some special political matter unlike in an election where votes are cast in favor of specific persons for some office. In other words, the electorate is asked to vote for or against issues, not candidates in a plebiscite.

DECISION

MEDIALDEA, J :
p

This is a petition for certiorari assailing the constitutionality of Section 19 of Comelec Resolution No. 2167 on the ground that it violates the constitutional guarantees of the freedom of expression and of the press. On October 23, 1989, Republic Act No. 6766, entitled "AN ACT PROVIDING FOR AN ORGANIC ACT FOR THE CORDILLERA AUTONOMOUS REGION" was enacted into law. Pursuant to said law, the City of Baguio and the Cordilleras which consist of the provinces of Benguet, Mountain Province, Ifugao, Abra and Kalinga-Apayao, all comprising the Cordillera Autonomous Region, shall take part in a plebiscite for the ratification of said Organic Act originally scheduled last December 27, 1989 which was, however, reset to January 30, 1990 by virtue of Comelec Resolution No. 2226 dated December 27, 1989. The Commission on Elections, by virtue of the power vested by the 1987 Constitution, the Omnibus Election Code (BP 881), said R.A. 6766 and other pertinent election laws, promulgated Resolution No. 2167, to govern the conduct of the plebiscite on the said Organic Act for the Cordillera Autonomous Region. In a petition dated November 20, 1989, herein petitioner Pablito V. Sanidad, who claims to be a newspaper columnist of the "OVERVIEW" for the BAGUIO MIDLAND COURIER, a weekly newspaper circulated in the City of Baguio and the Cordilleras, assailed the constitutionality of Section 19 of Comelec Resolution No. 2167, which provides:
"Section 19.Prohibition on columnists, commentators or announcers. During the plebiscite campaign period, on the day before and on plebiscite day, no mass media columnist, commentator, announcer or personality shall use his column or radio or television time to campaign for or against the plebiscite issues."

It is alleged by petitioner that said provision is void and unconstitutional because it violates the constitutional guarantees of the freedom of expression and of the press enshrined in the Constitution.
LLjur

Unlike a regular news reporter or news correspondent who merely reports the news, petitioner maintains that as a columnist, his column obviously and necessarily contains and reflects his opinions, views and beliefs on any issue or subject about which he writes. Petitioner believes that said provision of COMELEC Resolution No. 2167 constitutes a prior restraint on his constitutionally-guaranteed freedom of the press and further imposes subsequent punishment for those who may violate it because it contains a penal provision, as follows:
"Article XIII, Section 122, Election Offenses and Banned Acts or Activities. Except to the extent that the same may not be applicable to a plebiscite, the banned acts/activities and offenses defined in and penalized by the Omnibus Election Code (Sections 261, 262, 263 and 264, Article XXII, B.P Blg. 881) and the pertinent provisions of R.A. No. 6646 shall be applicable to the plebiscite governed by this Resolution."

Petitioner likewise maintains that if media practitioners were allowed to express their views, beliefs and opinions on the issue submitted to a plebiscite, it would in fact help in the government drive and desire to disseminate information, and hear, as well as ventilate, all sides of the issue. On November 28, 1989, We issued a temporary restraining order enjoining respondent Commission on Elections from enforcing and implementing Section 19 of Resolution No. 2167. We also required the respondent to comment on the petition. On January 9, 1990, respondent Commission on Elections, through the Office of the Solicitor General filed its Comment. Respondent Comelec maintains that the questioned provision of Comelec Resolution No. 2167 is not violative of the constitutional guarantees of the freedom of expression and of the press. Rather, it is a valid implementation of the power of the Comelec to supervise and regulate media during election or plebiscite periods as enunciated in Article IX-C, Section 4 of the 1987 Constitution of the Republic of the Philippines. It is stated further by respondent that Resolution 2167 does not absolutely bar petitioner from expressing his views and or from campaigning for or against the Organic Act. He may still express his views or campaign for or against the act through the Comelec space and airtime. This is provided under Sections 90 and 92 of BP 881:
"Section 90.Comelec Space. The Commission shall procure space in at least one newspaper of general circulation in every province or city: Provided,

however, That in the absence of said newspaper, publication shall be done in any other magazine or periodical in said province or city which shall be known as "Comelec Space" wherein candidates can announce their candidacy. Said space shall be allocated, free of charge, equally and impartially within the area in which the newspaper is circulated. "Section 92.Comelec Time. The Commission shall procure radio and television time to be known as "Comelec Time" which shall be allocated equally and impartially among the candidates within the area of coverage of all radio and television stations. For this purpose, the franchise of all radio broadcasting and television stations are hereby amended so as to provide radio or television time, free of charge, during the period of the campaign."

Respondent Comelec has relied much on Article IX-C of the 1987 Constitution and Section 11 of R.A. 6646 as the basis for the promulgation of the questioned Section 19 of Comelec Resolution 2167.
LLphil

Article IX-C of the 1987 Constitution provides:

"The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful and credible elections."

Similarly, Section 11 of Republic Act No. 6646 (The Electoral Reform Law of 1987) likewise provides:
"Prohibited forms of election Propaganda. In addition to the forms of election propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful: . . . . "(b)for any newspaper, radio, broadcasting or television station, or other mass media, or any person making use of the mass media to sell or to give free of charge print space or air time for campaign or other political purposes except to the Commission as provided under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist, commentator, announcer, or personality who is a candidate for any elective office shall take a leave of absence from his work as such during the campaign period." (Emphasis ours)

However, it is clear from Art. IX-C of the 1987 Constitution that what was granted to the Comelec was the power to supervise and regulate the use and enjoyment of franchises, permits or other grants issued for the operation of transportation or other public utilities, media of communication or information to the end that equal opportunity, time and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates are ensured. The evil sought to be prevented by this provision is the possibility that a franchise holder may favor or give any undue advantage to a candidate in terms of advertising space or radio or television time. This is also the reason why a "columnist, commentator, announcer or personality, who is a candidate for any elective office is required to take a leave of absence from his work during the campaign period (2nd par. Section 11(b) R.A. 6646). It cannot be gainsaid that a columnist or commentator who is also a candidate would be more exposed to the voters to the prejudice of other candidates unless required to take a leave of absence. However, neither Article IX-C of the Constitution nor Section 11(b), 2nd par. of R.A. 6646 can be construed to mean that the Comelec has also been granted the right to supervise and regulate the exercise by media practitioners themselves of their right to expression during plebiscite periods. Media practitioners exercising their freedom of expression during plebiscite periods are neither the franchise holders nor the candidates. In fact, there are no candidates involved in a plebiscite. Therefore, Section 19 of Comelec Resolution No. 2167 has no statutory basis. In the case of Badoy, Jr. v. Comelec, L-32546, Oct. 16, 1970, where the constitutionality of the prohibition of certain forms of election propaganda was assailed, We ruled therein that the prohibition is a valid exercise of the police power of the state "to prevent the perversion and prostitution of the electoral apparatus and of the denial of equal protection of the laws." The evil sought to be prevented in an election which led to Our ruling in that case does not obtain in a plebiscite. In a plebiscite, votes are taken in an area on some special political matter unlike in an election where votes are cast in favor of specific persons for some office. In other words, the electorate is asked to vote for or against issues, not candidates in a plebiscite.
LLjur

Anent respondent Comelec's argument that Section 19 of Comelec Resolution 2167 does not absolutely bar petitioner-columnist from expressing his views and or from campaigning for or against the organic act because he may do so through the Comelec space and/or Comelec radio/television time, the same is not meritorious. While the limitation does not absolutely bar petitioner's freedom of expression, it is still a restriction on his choice of the forum where he may express his view. No reason was advanced by respondent to justify such abridgement. We hold that this form of regulation is tantamount to a restriction of petitioner's freedom of expression for no justifiable reason.

Plebiscite issues are matters of public concern and importance. The people's right to be informed and to be able to freely and intelligently make a decision would be better served by access to an unabridged discussion of the issues, including the forum. The people affected by the issues presented in a plebiscite should not be unduly burdened by restrictions on the forum where the right to expression may be exercised. Comelec spaces and Comelec radio time may provide a forum for expression but they do not guarantee full dissemination of information to the public concerned because they are limited to either specific portions in newspapers or to specific radio or television times. ACCORDINGLY, the instant petition is GRANTED. Section 19 of Comelec Resolution No. 2167 is declared null and void and unconstitutional. The restraining order herein issued is hereby made permanent.
prLL

SO ORDERED.

EN BANC
[G.R. No. 97710. September 26, 1991.] DR. EMIGDIO A. BONDOC, petitioner, vs. REPRESENTATIVES MARCIANO M. PINEDA, MAGDALENO M. PALACOL, COL. JUANITO G. CAMASURA, JR., or any other representative who may be appointed vice representative Juanito G. Camasura, Jr., and THE HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL, respondents. Estelito P. Mendoza, Romulo C . Felixmera and Horacio S.J. Apostol for petitioner. Nicanor S. Bautista for respondent Marciano M. Pineda. Benedicto R. Palacol for respondent M.M. Palacol. SYLLABUS 1.POLITICAL LAW; "POLITICAL QUESTION"; DEFINED. The accepted meaning of "political question" is that "where the matter involved is left to a decision by the people acting in their sovereign capacity or to the sole determination by either or both the legislative or executive branch of the government, it is beyond judicial cognizance. Thus it was that in suits where the party proceeded against was either the President or Congress, or any of its branches for that matter, the courts refused to act." (Aquino vs. Ponce Enrile, 59 SCRA 183, 196.) 2.ID.; CONSTITUTIONAL LAW; SECTION 1, ARTICLE VIII OF THE 1987 CONSTITUTIONAL; DEFINES "JUDICIAL POWER." Section 1, Article VIII of the 1987 Constitution of the Philippines defines judicial power as both authority and duty of the courts "to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." 3.ID.; ID.; HOUSE ELECTORAL TRIBUNAL UNDER THE 1987 CONSTITUTION; DISTINGUISHED FROM THAT UNDER THE 1935 CONSTITUTION. Section 17, Article VI of the 1987 Constitution, provides: "Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns and qualifications of their respective members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be

Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman." Section 17 reechoes Section 11, Article VI of the 1935 Constitution, except the provision on the representation of the main political parties in the tribunal which is now based on proportional representation from all the political parties, instead of equal representation of three members from each of the first and second largest political aggrupations in the Legislature. 4.ID.; ID.; ID.; INDEPENDENT AND NON-PARTISAN. The use of the word "sole" in both Section 17 of the 1987 Constitution and Section 11 of the 1935 Constitution underscores the exclusive jurisdiction of the House Electoral Tribunal as judge of contests relating to the election, returns and qualifications of the members of the House of Representatives (Robles vs. House of Representatives Electoral Tribunal, G.R. No. 86647, February 5, 1990). The tribunal was created to function as a nonpartisan court although two-thirds of its members are politicians. It is a non-political body in a sea of politicians. What this Court had earlier said about the Electoral Commission applies as well to the electoral tribunals of the Senate and House of Representatives: "The purpose of the constitutional convention creating the Electoral Commission was to provide an independent and impartial tribunal for the determination of contests to legislative office, devoid of partisan consideration, and to transfer to that tribunal all the powers previously exercised by the legislature in matters pertaining to contested elections of its members. "The power granted to the electoral Commission to judge contests relating to the election and qualification of members of the National Assembly is intended to be as complete and unimpaired as if it had remained in the legislature." "The Electoral Tribunals of the Senate and the House were created by the Constitution as special tribunals to be the sole judge of all contests relating to election returns and qualifications of members of the legislative houses, and, as such, are independent bodies which must be permitted to select their own employees, and to supervise and control them, without any legislative interference." (Suanes vs. Chief Accountant of the Senate, 81 Phil. 818.) To be able to exercise exclusive jurisdiction, the House Electoral Tribunal must be independent. Its jurisdiction to hear and decide congressional election contests is not to be shared by it with the Legislature nor with the Courts. "The Electoral Commission is a body separate from and independent of the legislature and though not a power in the tripartite scheme of government, it is to all intents and purposes, when acting within the limits of its authority, an independent organ; while composed of a majority of members of the legislature it is a body separate from and independent of the legislature. "The Electoral Commission, a constitutional organ created for the specific purpose of determining contests relating to election returns and qualifications of members of the National Assembly may not be interfered with by the judiciary when and while acting within the limits of its authority, but the Supreme Court has jurisdiction over the Electoral

Commission for the purpose of determining the character, scope and extent of the constitutional grant to the commission as sole judge of all contests relating to the election and qualifications of the members of the National Assembly." (Angara vs. Electoral Commission, 63 Phil. 139.) 5.ID.; ID.; ID.; RESOLUTION OF THE HOUSE OF REPRESENTATIVES TO REMOVE A MEMBER FROM THE HOUSE ELECTORAL TRIBUNAL UNCONSTITUTIONAL. The independence of the House Electoral Tribunal so zealously guarded by the framers of our Constitution, would, however, be a myth and its proceedings a farce if the House of Representatives, or the majority party therein, may shuffle and manipulate the political (as distinguished from the judicial) component of the electoral tribunal, to serve the interests of the party in power. The resolution of the House of Representatives removing Congressman Camasura from the House Electoral Tribunal for disloyalty to the LDP, because he cast his vote in favor of the Nacionalista Party's candidate, Bondoc, is a clear impairment of the constitutional prerogative of the House Electoral Tribunal to be the sole judge of the election contest between Pineda and Bondoc. To sanction such interference by the House of Representatives in the work of the House Electoral Tribunal would reduce the tribunal to a mere tool for the aggrandizement of the party in power. The expulsion of Congressman Camasura from the House Electoral Tribunal by the House of Representatives was not for a lawful and valid cause, but to unjustly interfere with the tribunal's disposition of the Bondoc case and to deprive Bondoc of the fruits of the Tribunal's decision in his favor, the action of the House of Representatives is clearly violative of the constitutional mandate (Sec. 17, Art. VI, 1987 Constitution). 6.ID.; ID.; ID.; "DISLOYALTY TO PARTY AND "BREACH OF PARTY DISCIPLINE" NOT VALID GROUND FOR TERMINATION OF MEMBERSHIP THEREIN. As judges, the members of the House Electoral Tribunal must be nonpartisan. They must discharge their functions with complete detachment, impartiality, and independence even independence from the political party to which they belong. Hence, "disloyalty to party" and "breach of party discipline," are not valid grounds for the expulsion of a member of the tribunal. In expelling Congressman Camasura from the HRET for having cast a "conscience vote" in favor of Bondoc, based strictly on the result of the examination and appreciation of the ballots and the recount of the votes by the tribunal, the House of Representatives committed a grave abuse of discretion, an injustice, and a violation of the Constitution. Its resolution of expulsion against Congressman Camasura is, therefore, null and void. 7.ID.; ID.; ID.; MEMBERS THEREIN ENJOY SECURITY OF TENURE; REMOVAL MUST BE FOR A VALID CAUSE. The resolution of the House of Representatives expelling Congressman Camasura violates his right to security of tenure. Members of the HRET, as "sole judge" of congressional election contests, are entitled to security of tenure just as members of the judiciary enjoy security of tenure under our Constitution

(Sec. 2, Art. VIII, 1987 Constitution). Therefore, membership in the House Electoral Tribunal may not be terminated except for a just cause, such as, the expiration of the member's congressional term of office, his death, permanent disability, resignation from the political party he represents in the tribunal, formal affiliation with another political party, or removal for other valid cause. A member may not be expelled by the House of Representatives for "party disloyalty" short of proof that he has formally affiliated with another political group. As the records of this case fail to show that Congressman Camasura has become a registered member of another political party, his expulsion from the LDP and from the HRET was not for a valid cause, hence, it violated his right to security of tenure. PADILLA, J., dissenting: 1.POLITICAL LAW; PRINCIPLE OF "SEPARATION OF POWERS"; EXPLAINED. A fundamental principle in our constitutional system is that the powers of government are distributed among three (3) great departments: legislative, executive and judicial. Each of these departments is separate from, yet coordinate and co-equal with the others each one deriving its authority directly from the fundamental law. As Mr. Justice Moreland summarized, "the three departments are not only coordinate, they are co-equal and co-important. While interdependent, in the sense that each is unable to perform its functions fully and adequately without the other, they are nevertheless in many senses independent of each other. That is to say, one department may not control or even interfere with another in the exercise of its particular functions." The completeness of their separation and mutual independence does not, however, extend to the point that those in authority in one department can ignore and treat the acts of those in authority in the others, done pursuant to the authority vested in them, as nugatory and not binding in every other department. In other words, one department must not encroach upon nor interfere with acts done within the constitutional competence of the other where full discretionary authority has been delegated by the Constitution to said department. That department alone, to the exclusion of the others, has both right and duty to exercise it free from any encroachment or interference of whomsoever.

2.ID.; CONSTITUTIONAL LAW; THE POWER TO APPOINT OR DESIGNATE A MEMBER OF THE HOUSE OF REPRESENTATIVES TO BE A MEMBER OF THE HOUSE ELECTORAL TRIBUNAL NECESSARILY INCLUDE THE POWER TO REMOVE SAID MEMBER. The power to appoint or designate a member of the House of Representatives to be a member of the House Electoral Tribunal must, necessarily include the power to remove said member. A withdrawal of the nomination of a member of the Tribunal where such withdrawal will maintain the proportional representation of the political parties, mandated by the Constitution, must be recognized

and respected, no matter how politically motivated it might be. Constitutional law, it is said, is concerned with power not with policy, wisdom or expediency. 3.ID.; ID.; JUDICIAL DEPARTMENT WITHOUT POWER TO REVIEW ARBITRARY AND UNFAIR ACTION OF LEGISLATIVE DEPARTMENT TAKEN IN THE EXERCISE OF POWER COMMITTED EXCLUSIVELY TO IT BY THE CONSTITUTION; CASE AT BAR. The judicial department, in my opinion, has no power to review even the most arbitrary and unfair action of the legislative department, taken in the exercise of power committed exclusively to it by the Constitution. It is not within the province of this Court to supervise legislation or oversee legislative acts as to keep them within the bounds of propriety, fairness and common sense. Such acts, are exclusively of legislative concern. To hold otherwise would be to invalidate the principle of separation of powers. Even assuming that the act of the House of Representatives in withdrawing and rescinding the nomination of Congressman Camasura, Jr. as a member of the House Electoral Tribunal is politically motivated, precipitated as it is by the knowledge of how Camasura, Jr. is to vote in one of the electoral protests before said Tribunal, this, to me, is not sufficient reason to invalidate said act of the House of Representatives, since it is done within the limits of its constitutional power. SARMIENTO, J., dissenting: POLITICAL LAW; "POLITICAL QUESTION"; BEYOND JUDICIAL INTERFERENCE. I believe that the question, can the Court annul an act of Congress, revamping its House Electoral Tribunal? is a political question and a question in which the Court can not intervene. It is true that under the Charter, the jurisdiction of this Court includes the power to strike down excesses of any agency of Government, but the Charter did not alter or discard the principle of separation of powers. Evidently, Congressman Camasura's ouster from the Tribunal was a result of political maneuvers within the lower house. This Court, however, is above politics and Justices should be the last persons to get involved in the "dirty" world of politics. If they do, they risk their independence.

DECISION

GRIO-AQUINO, J :
p

This case involves a question of power. May the House of Representatives, at the request of the dominant political party therein, change that party's representation in the House Electoral Tribunal to thwart the promulgation of a decision freely reached by the tribunal in an election contest pending therein? May the Supreme Court review and annul that action of the House?
LLphil

Even the Supreme Court of the United States over a century ago, in Marbury vs. Madison, 2 L. ed. 60 (1803), had hesitated to embark upon a legal investigation of the acts of the other two branches of the Government, finding it "peculiarly irksome as well as delicate" because it could be considered by some as "an attempt to intrude" into the affairs of the other two and to intermeddle with their prerogatives. In the past, the Supreme Court, as head of the third and weakest branch of our Government, was all too willing to avoid a political confrontation with the other two branches by burying its head ostrich-like in the sands of the "political question" doctrine, the accepted meaning of which is that "where the matter involved is left to a decision by the people acting in their sovereign capacity or to the sole determination by either or both the legislative or executive branch of the government, it is beyond judicial cognizance. Thus it was that in suits where the party proceeded against was either the President or Congress, or any of its branches for that matter, the courts refused to act." (Aquino vs. Ponce Enrile, 59 SCRA 183, 196.). In time, however, the duty of the courts to look into the constitutionality and validity of legislative or executive action, especially when private rights are affected, came to be recognized. As we pointed out in the celebrated Aquino case, a showing that plenary power is granted either department of government may not be an obstacle to judicial inquiry, for the improvident exercise or the abuse thereof may give rise to a justiciable controversy. Since "a constitutional grant of authority is not usually unrestricted, limitations being provided for as to what may be done and how it is to be accomplished, necessarily then, it becomes the responsibility of the courts to ascertain whether the two coordinate branches have adhered to the mandate of the fundamental law. The question thus posed is judicial rather than political. The duty remains to assure that the supremacy of the Constitution is upheld" (Aquino vs. Ponce Enrile, 59 SCRA 183, 196). That duty is a part of the judicial power vested in the courts by an express grant under Section 1, Article VIII of the 1987 Constitution of the Philippines which defines judicial power as both authority and duty of the courts "to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." The power and duty of the courts to nullify, in appropriate cases, the actions of the executive and legislative branches of the Government, does not mean that the courts are superior to the President and the Legislature. It does mean though that the judiciary may not shirk "the irksome task" of inquiring into the constitutionality and legality of legislative or executive action when a justiciable controversy is brought before the courts by someone who has been aggrieved or prejudiced by such action, as in this case. It is

"a plain exercise of the judicial power, that power vested in courts to enable them to administer justice according to law. . . . It is simply a necessary concomitant of the power to hear and dispose of a case or controversy properly before the court, to the determination of which must be brought the test and measure of the law." (Vera vs. Avelino, 77 Phil. 192, 203.)

In the local and congressional elections held on May 11, 1987, Marciano M. Pineda of the Laban ng Demokratikong Pilipino (LDP) and Dr. Emigdio A. Bondoc of the Nacionalista Party (NP) were rival candidates for the position of Representative for the Fourth District of the province of Pampanga. Each received the following votes in the canvass made by the Provincial Board of Canvassers of Pampanga:
Marciano M. Pineda31,700 votes Emigdio A. Bondoc28,400 votes Difference 3,300 votes

On May 19,1987, Pineda was proclaimed winner in the election. In due time, Bondoc filed a protest (HRET Case No. 25) in the House of Representatives Electoral Tribunal (HRET for short) which is composed of nine (9) members, three of whom are Justices of the Supreme Court and the remaining six are members of the House of Representatives chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein (Sec. 17, Art. VI, 1987 Constitution) as follows: AMEURFINA M. HERRERAChairman Associate Justice Supreme Court ISAGANI A. CRUZMember Associate Justice Supreme Court FLORENTINO P. FELICIANOMember Associate Justice Supreme Court HONORATO Y. AQUINOMember Congressman

1st Dist., Benguet LDP DAVID A. PONCE DE LEONMember Congressman 1st Dist., Palawan LDP SIMEON E. GARCIA, JR.Member Congressman 2nd Dist., Nueva Ecija LDP JUANITO G. CAMASURA, JR.Member Congressman 1st Dist., Davao del Sur LDP JOSE E. CALINGASANMember Congressman 4th Dist., Batangas LDP ANTONIO H. CERILLESMember Congressman 2nd Dist., Zamboanga del Sur (formerly GAD, now NP). After the revision of the ballots, the presentation of evidence, and submission of memoranda, Bondoc's protest was submitted for decision in July, 1989. By October 1990, a decision had been reached in which Bondoc won over Pineda by a margin of twenty-three (23) votes. At that point, the LDP members in the Tribunal

insisted on a re appreciation and recount of the ballots cast in some precincts, thereby delaying by at least four (4) months the finalization of the decision in the case. The reexamination and re-appreciation of the ballots resulted in increasing Bondoc's lead over Pineda to 107 votes. Congressman Camasura voted with the Supreme Court Justices and Congressman Cerilles to proclaim Bondoc the winner of the contest.
LLpr

Moved by candor and honesty, Congressman Camasura revealed on March 4, 1991, to his "Chief," Congressman Jose S. Cojuangco, Jr., LDP Secretary General, not only the final tally in the Bondoc case but also that he voted for Bondoc "consistent with truth and justice and self-respect," and to honor a "gentlemen's agreement" among the members of the HRET that they would "abide by the result of the appreciation of the contested ballot 1 Congressman Camasura's revelation stirred a hornets' nest in the LDP which went into a flurry of plotting appropriate moves to neutralize the pro-Bondoc majority in the Tribunal. On March 5, 1991, the HRET issued a Notice of Promulgation of Decision on March 14, 1991 at 2:30 P.M. in HRET Case No. 25. A copy of the notice was received by Bondoc's counsel on March 6, 1991. On March 13, 1991, the eve of the promulgation of the Bondoc decision, Congressman Cojuangco informed Congressman Camasura by letter 2 that on February 28, 1991 yet, the LDP Davao del Sur Chapter at Digos, Davao del Sur, by Resolution No. 03-91, had already expelled him and Congressman Benjamin Bautista from the LDP for having allegedly helped to organize the Partido Pilipino of Eduardo "Danding" Cojuangco, and for allegedly having invited LDP members in Davao del Sur to join said political party; and that as those acts are "not only inimical, uncalled for, unethical and immoral, but also a complete betrayal to (sic) the cause and objectives, and loyalty to LDP," in a meeting on March 12, 1991, the LDP Executive Committee unanimously confirmed the expulsions. 3

At the same time, Congressman Cojuangco notified Speaker Ramon V. Mitra about the ouster of the two congressmen from the LDP, and asked the House of Representatives, through the Speaker, to take note of it "especially in matters where party membership is a prerequisite." 4 At 9:45 in the morning of March 4, 1991, the Chairman of the Tribunal, Mme. Justice Ameurfina M. Herrera, received the following letter dated March 13, 1991, from the Office of the Secretary General of the House of Representatives, informing the Tribunal that on the basis of the letter from the LDP, the House of Representatives, during its plenary session on March 13, 1991, decided to withdraw the nomination and rescind the

election of Congressman Camasura, Jr. to the House of Electoral Tribunal. The letter reads as follows:
"13 March 1991 "Honorable Justice Ameurfina Melencio-Herrera Chairman House of Representatives Electoral Tribunal Constitution Hills Quezon City "Dear Honorable Justice Melencio-Herrera: "I have the honor to notify the House of Electoral Tribunal of the decision of the House of Representatives during its plenary session on 13 March 1991, to withdraw the nomination and to rescind the election of the Honorable Juanito G. Camasura, Jr. to the House Electoral Tribunal on the basis of an LDP communication which is self-explanatory and copies of which are hereto attached. "Thank you. "For the Secretary-General "(SGD.) Josefina D. Azarcon "Officer-in-charge Operations Department" (p. 10, Rollo.)

Justices Herrera, Cruz, and Feliciano promptly apprised the Chief Justice and Associate Justices of the Supreme Court in writing, of this "distressing development" and asked to be relieved from their assignments in the HRET because
"By the above action (of the House) the promulgation of the decision of the Tribunal in the electoral protest entitled "Bondoc v. Pineda" (HRET Case No. 25), previously scheduled for 14 March 1991, is sought to be aborted (See the Consolidated Bank and Trust Corporation v. Hon. Intermediate Appellate Court, G.R. No. 73777-78, promulgated 12 September 1990). Even if there were no legal impediment to its promulgation, the decision which was reached on a 5 to 4 vote may now be confidently expected to be overturned on a motion for reconsideration by the party-litigant which would have been defeated.

"The decision in Bondoc v. Pineda was ready as early as October 1990 with a margin of 23 votes in favor of protestant Bondoc. Because some members of the Tribunal requested re-appreciation of some ballots, the finalization of the decision had to be deferred by at least 4 months. With the re-appreciation completed, the decision, now with a margin of 107 votes in favor of protestant Bondoc, and concurred in by Justices Ameurfina A. Melencio-Herrera, Isagani A. Cruz and Florentino P. Feliciano, and Congressmen Juanito G. Camasura and Antonio H. Cerilles, is set for promulgation on 14 March 1991, with Congressmen Honorato Y. Aquino, David A. Ponce de Leon, Simeon E. Garcia, Jr. and Jose E. Calingasan, dissenting. "Congressman Camasura's vote in the Bondoc v. Pined case was, in our view, a conscience vote, for which he earned the respect of the Tribunal but also the loss of the confidence of the leadership of his party. "Under the above circumstances, an untenable situation has come about. It is extremely difficult to continue with membership in the Tribunal and for the Tribunal to preserve its integrity and credibility as a constitutional body charged with a judicial task. It is clear to us that the unseating of an incumbent member of Congress is being prevented at all costs. We believe that the Tribunal should not be hampered in the performance of its constitutional function by factors which have nothing to do with the merits of the cases before it. "In this connection, our own experience teaches that the provision for proportional representation in the Tribunal found in Article VI, Section 17 of the 1987 Constitution, should be amended to provide instead for a return to the composition mandated in the 1935 Constitution, that is: three (3) members chosen by the House or Senate upon nomination of the party having the largest number of votes and three (3) of the party having the second largest number of votes: and a judicial component consisting of three (3) justices from the Supreme Court. Thereby, no party or coalition of parties can dominate the legislative component in the Tribunal. "In the alternative, the Senate Electoral Tribunal could perhaps sit as the sole judge of all contests relating to the election, returns and qualifications of members of the House of Representatives. Similarly, the House of Representatives Electoral Tribunal could sit as the sole judge of all such contests involving members of the Senate. In this way, there should be lesser chances of non-judicial elements playing a decisive role in the resolution of election contests. "We suggest that there should also be a provision in the Constitution that upon designation to membership in the Electoral Tribunal, those so designated should

divest themselves of affiliation with their respective political parties, to insure their independence and objectivity as they sit in Tribunal deliberations. "There are only three (3) remaining cases for decision by the Tribunal. Bondoc should have been promulgated today, 14 March 1991. Cabrera v. Apacible (HRET Case No. 21) is scheduled for promulgation on 31 March 1991 and Lucman v. Dimaporo (HRET Case No. 45), after the Holy Week recess. "But political factors are blocking the accomplishment of the constitutionally mandated task of the Tribunal well ahead of the completion of the present congressional term. "Under these circumstances, we are compelled to ask to be relieved from the chairmanship and membership in the Tribunal. "xxx xxx xxx".

At the open session of the HRET in the afternoon of the same day, the Tribunal issued Resolution No. 91-0018 cancelling the promulgation of the decision in HRET Case No. 25. The resolution reads:
"In view of the formal notice the Tribunal has received at 9:45 this morning from the House of Representatives that at its plenary session held on March 13, 1991, it had voted to withdraw the nomination and rescind the election of Congressman Camasura to the House of Representatives Electoral Tribunal,' the Tribunal Resolved to cancel the promulgation of its Decision in Bondoc vs. Pineda (HRET Case No. 25) scheduled for this afternoon. This is because, without Congressman Camasura's vote, the decision lacks the concurrence of five members as required by Section 24 of the Rules of the Tribunal and, therefore, cannot be validly promulgated. "The Tribunal noted that the three (3) Justices-members of the Supreme Court, being of the opinion that this development undermines the independence of the Tribunal and derails the orderly adjudication of electoral cases, they have asked the Chief Justice, in a letter of even date, for their relief from membership in the Tribunal. "The Tribunal further Noted that Congressman Cerilles also manifested his intention to resign as a member of the Tribunal. "The Tribunal further Noted that Congressmen Aquino, Ponce de Leon, Garcia, Jr., and Calingasan also manifested a similar intention." (p. 37, Rollo.)

On March 19, 1991, this Court, after deliberating on the request for relief of Justices Herrera, Cruz and Feliciano, resolved to direct them to return to their duties in the Tribunal. The Court observed that:
LibLex

". . . in view of the sensitive constitutional functions of the Electoral Tribunals as the 'sole judge' of all contests relating to the election, returns and qualifications of the members of Congress, all members of these bodies are appropriately guided only by purely legal considerations in the decision of the cases before them and that in the contemplation of the Constitution the members-legislators, thereof, upon assumption of their duties therein, sit in the Tribunal no longer as representatives of their respective political parties but as impartial judges. The view was also submitted that, to further bolster the independence of the Tribunals, the term of office of every member thereof should be considered co-extensive with the corresponding legislative term and may not be legally terminated except only by death, resignation, permanent disability, or removal for valid cause, not including political disloyalty. "ACCORDINGLY, the Court Resolved: a) to DECLINE the request of Justices Herrera, Cruz, and Feliciano to be relieved from their membership in the House of Representatives Electoral Tribunal and instead to DIRECT them to resume their duties therein: b) to EXPRESS its concern over the intrusion of nonjudicial factors in the proceedings of the House of Representatives Electoral Tribunal, which performs functions purely judicial in character despite the inclusion of legislators in its membership; and c) to NOTE the new that the term of all the members of the Electoral Tribunals, including those from the legislature, is co-extensive with the corresponding legislative term and cannot be terminated at will but only for valid legal cause, and to REQUIRE the Justices-members of the Tribunal to submit the issue to the said Tribunal in the first instance. "Paras J. filed this separate concurring opinion: 'I concur, but I wish to add that Rep. Camasura should be allowed to cast his original vote in favor of protestant Bondoc, otherwise a political and judicial travesty will take place.' MelencioHerrera, Cruz and Feliciano, JJ., took no part. Gancayco, J., is on leave."

On March 21, 1991, a petition for certiorari, prohibition and mandamus was filed by Dr. Emigdio A. Bondoc against Representatives Marciano M. Pineda, Magdaleno M. Palacol, Juanito G. Camasura, Jr., or any other representative who may be appointed Vice Representative Juanito G. Camasura Jr., and the House of Representatives Electoral Tribunal, praying this Court to:

1.Annul the decision of the House of Representatives of March 13, 1991, "to withdraw the nomination and to rescind the nomination of Representative Juanito G. Camasura, Jr. to the House of Representatives Electoral Tribunal;" 2.Issue a writ of prohibition restraining respondent Palacol or whomsoever may be designated in place of respondent Camasura from assuming, occupying and

discharging functions as a member of the House of Representatives Electoral Tribunal; 3.Issue a writ of mandamus ordering respondent Camasura to immediately reassume and discharge his functions as a member of the House of Representatives Electoral Tribunal; and 4.Grant such other relief as may be just and equitable.

Upon receipt of the petition, the Court, without giving it due course, required the respondents to comment 5 on the petition within ten days from notice and to enjoin the HRET "from reorganizing and allowing participation in its proceedings of Honorable Magdaleno M. Palacol or whoever is designated to replace Honorable Juanito G. Camasura in said House of Representatives Electoral Tribunal, until the issue of the withdrawal of the nomination and rescission of the election of said Congressman Camasura as member of the HRET by the House of Representatives is resolved by this Court, or until otherwise ordered by the Court." (p. 39, Rollo.) Congressman Juanito G. Camasura, Jr. did not oppose the petition. Congressman Marciano M. Pineda's plea for the dismissal of the petition is centered on Congress' being the sole authority that nominates and elects from its members. Upon recommendation by the political parties therein, those who are to sit in the House of Representatives Electoral Tribunal (and in the Commission on Appointments as well), hence, it allegedly has the sole power to remove any of them whenever the ratio in the representation of the political parties in the House or Senate is materially changed on account of death, incapacity, removal or expulsion from the political party; 6 that a Tribunal member's term of office is not co-extensive with his legislative term, 7 for if a member of the Tribunal who changes his party affiliation is not removed from the Tribunal, the constitutional provision mandating representation based on political affiliation would be completely nullified; 8 and that the expulsion of Congressman Camasura from the LDP, is "purely a party affair" of the LDP 9 and the decision to rescind his membership in the House Electoral Tribunal is the sole prerogative of the House of Representatives, hence, it is a purely political question beyond the reach of judicial review. 10 In his comment, respondent Congressman Magdaleno M. Palacol alleged that the petitioner has no cause of action against him because he has not yet been nominated by the LDP for membership in the HRET. 11 Moreover, the petition failed to implead the House of Representatives as an indispensable party for it was the House, not the HRET, that withdrew and rescinded Congressman Camasura's membership in the HRET. 12 The Solicitor General, as counsel for the Tribunal, argued in a similar vein; that the inclusion of the HRET as a party respondent is erroneous because the petition states no

cause of action against the Tribunal. The petitioner does not question any act or order of the HRET in violation of his rights. What he assails is the act of the House of Representatives of withdrawing the nomination, and rescinding the election, of Congressman Juanito Camasura as a member of the HRET. 13 Replying to the Solicitor General's Manifestation, the petitioner argued that while the Tribunal indeed had nothing to do with the assailed decision of the House of Representatives, it acknowledged that decision by cancelling the promulgation of its decision in HRET Case No. 25 to his (Bondoc's) prejudice. 14 Hence, although the Tribunal may not be an indispensable party, it is a necessary party to the suit, to assure that complete relief is accorded to the petitioner for "in the ultimate, the Tribunal would have to acknowledge, give recognition, and implement the Supreme Court's decision as to whether the relief of respondent Congressman Camasura from the Office of the Electoral Tribunal is valid." 15 In his reply to Congressman Palacol's Comment, the petitioner explained that Congressman Palacol was impleaded as one of the respondents in this case because after the House of Representatives had announced the termination of Congressman Camasura's membership in the HRET, several newspapers of general circulation reported that the House of Representatives would nominate and elect Congressman Palacol to take Congressman Camasura's seat in the Tribunal. 16 Now, is the House of Representatives empowered by the Constitution to do that, i.e., to interfere with the disposition of an election contest in the House Electoral Tribunal through the ruse of "reorganizing" the representation in the tribunal of the majority party? Section 17, Article VI of the 1987 Constitution supplies the answer to that question. It provides:
"Sec. 17.The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns and qualifications of their respective members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be members of the Senate or House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman."

Section 17 reechoes Section 11, Article VI of the 1935 Constitution, except the provision on the representation of the main political parties in the tribunal which is now based on proportional representation from all the political parties, instead of equal representation

of three members from each of the first and second largest political aggravations in the Legislature. The 1935 constitutional provision reads as follows:
"Sec. 11.The Senate and the House of Representatives shall have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or of the House of Representatives, as the case may be, who shall be chosen by each House, three upon nomination of the party having the largest number of votes and three of the party having the second largest number of votes therein. The senior Justice in each Electoral Tribunal shall be its Chairman." (1935 Constitution of the Philippines.).

Under the above provision, the Justices held the deciding votes, and it was impossible for any political party to control the voting in the tribunal. The 1973 Constitution did not provide for an electoral tribunal in the Batasang Pambansa.
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The use of the word "sole" in both Section 17 of the 1987 Constitution and Section 11 of the 1935 Constitution underscores the exclusive jurisdiction of the House Electoral Tribunal as judge of contests relating to the election, returns and qualifications of the members of the House of Representatives (Robles vs. House of Representatives Electoral Tribunal, G.R. No. 86647, February 5, 1990). The tribunal was created to function as a nonpartisan court although two-thirds of its members are politicians. It is a non-political body in a sea of politicians. What this Court had earlier said about the Electoral Commission applies as well to the electoral tribunals of the Senate and House of Representatives:
"The purpose of the constitutional convention creating the Electoral Commission was to provide an independent and impartial tribunal for the determination of contests to legislative office, devoid of partisan consideration, and to transfer to that tribunal all the powers previously exercised by the legislature in matters pertaining to contested elections of its members. "The power granted to the electoral Commission to judge contests relating to the election and qualification of members of the National Assembly is intended to be as complete and unimpaired as if it had remained in the legislature." "The Electoral Tribunals of the Senate and the House were created by the Constitution as special tribunals to be the sole judge of all contests relating to election returns and qualifications of members of the legislative houses, and, as such, are independent bodies which must be permitted to select their own employees, and to supervise and control them, without any legislative interference." (Suanes vs. Chief Accountant of the Senate, 81 Phil. 818.)

To be able to exercise exclusive jurisdiction, the House Electoral Tribunal must be independent. Its jurisdiction to hear and decide congressional election contests is not to be shared by it with the Legislature nor with the Courts.
"The Electoral Commission is a body separate from and independent of the legislature and though not a power in the tripartite scheme of government, it is to all intents and purposes, when acting within the limits of its authority, an independent organ; while composed of a majority of members of the legislature it is a body separate from and independent of the legislature. xxx xxx xxx. "The Electoral Commission, a constitutional organ created for the specific purpose of determining contests relating to election returns and qualifications of members of the National Assembly may not be interfered with by the judiciary when and while acting within the limits of its authority, but the Supreme Court has jurisdiction over the Electoral Commission for the purpose of determining the character, scope and extent of the constitutional grant to the commission as sole judge of all contests relating to the election and qualifications of the members of the National Assembly." (Angara vs. Electoral Commission, 63 Phil. 139.)

The independence of the electoral tribunal was preserved undiminished in the 1987 Constitution as the following exchanges on the subject between Commissioners Maambong and Azcuna in the 1986 Constitutional Commission, attest:
"MR. MAAMBONG.Thank you. "My questions will be very basic so we can go as fast as we can. In the case of the electoral tribunal, either of the House or of the Senate, is it correct to say that these tribunals are constitutional creations? I will distinguish these with the case of the Tanodbayan and the Sandiganbayan which are created by mandate of the Constitution but they are not constitutional creations. Is that a good distinction?. "MR. AZCUNA.That is an excellent statement. "MR. MAAMBONG.Could we, therefore, say that either the Senate Electoral Tribunal or the House Electoral Tribunal is a constitutional body? "MR. AZCUNA. It is, Madam President. "MR. MAAMBONG.If it is a constitutional body, is it then subject to constitutional restrictions?

"MR. AZCUNA.It would be subject to constitutional restrictions intended for that body. "MR. MAAMBONG.I see. But I want to find out if the ruling in the case of Vera vs. Avelino, 77 Phil. 192, will still be applicable to the present bodies we are creating since it ruled that the electoral tribunals are not separate departments of the government. Would that ruling still be valid? "MR. AZCUNA.Yes, they are not separate departments because the separate departments are the legislative, the executive and the judiciary; but they are constitutional bodies. "MR. MAAMBONG.Although they are not separate departments of government, I would like to know again if the ruling in Angara vs. Electoral Commission, 53 Phil. 139, would still be applicable to the present bodies we are deciding on, when the Supreme court said that these electoral tribunals are independent from Congress, devoid of partisan influence or consideration and, therefore, Congress has no power to regulate proceedings of these electoral tribunals. "MR. AZCUNA.I think that is correct. They are independent although they are not a separate branch of government. "MR. MAAMBONG.There is a statement that in all parliaments of the world, the invariable rule is to leave unto themselves the determination of controversies with respect to the election and qualifications of their members, and precisely they have this Committee on Privileges which takes care of this particular controversy. "Would the Gentleman say that the creation of electoral tribunals is an exception to this rule because apparently we have an independent electoral tribunal? "MR. AZCUNA.To the extent that the electoral tribunals are independent, but the Gentleman will notice that the wordings say: `The Senate and the House of Representatives shall each have an Electoral Tribunal.' It is still the Senate Electoral Tribunal and the House Electoral Tribunal. So, technically, it is the tribunal of the House and tribunal of the Senate although they are independent. "MR. MAAMBONG.But both of them, as we have agreed on, are independent from both bodies? "MR. AZCUNA.That is correct.

"MR. MAAMBONG.This is the bottom line of my question. How can we say that these bodies are independent when we still have six politicians sitting in both tribunals? "MR. AZCUNA.Politicians can be independent, Madam President. "MR. MAAMBONG.Madam President, when we discussed a portion of this in the Committee on the Executive, there was a comment by Chief Justice Concepcion Commissioner Concepcion that there seems to be some incongruity in these electoral tribunals, considering that politicians still sit in the tribunals in spite of the fact that in the ruling in the case of Sanidad vs. Vera, Senate Electoral Tribunal Case No. 1, they are supposed to act in accordance with law and justice with complete detachment from all political considerations. That is why I am asking now for the record how we could achieve such detachment when there are six politicians sitting there. "MR. AZCUNA.The same reason that the Gentleman, while chosen on behalf of the opposition, has, with sterling competence, shown independence in the proceedings of this Commission. I think we can also trust that the members of the tribunals will be independent." (pp. 111-112, Journal, Tuesday, July 22, 1986, Emphasis ours.)

Resolution of the House of Representatives violates the independence of the HRET. The independence of the House Electoral Tribunal so zealously guarded by the framers of our Constitution, would, however, be a myth and its proceedings a farce if the House of Representatives, or the majority party therein, may shuffle and manipulate the political (as distinguished from the judicial) component of the electoral tribunal, to serve the interests of the party in power. The resolution of the House of Representatives removing Congressman Camasura from the House Electoral Tribunal for disloyalty to the LDP, because he cast his vote in favor of the Nacionalista Party's candidate, Bondoc, is a clear impairment of the constitutional prerogative of the House Electoral Tribunal to be the sole judge of the election contest between Pineda and Bondoc. To sanction such interference by the House of Representatives in the work of the House Electoral Tribunal would reduce the tribunal to a mere tool for the aggrandizement of the party in power (LDP) which the three justices of the Supreme Court and the lone NP member would be powerless to stop. A minority party candidate may as well abandon all hope at the threshold of the tribunal.

Disloyalty to party is not a valid cause for termination of membership in the HRET. As judges, the members of the tribunal must be non-partisan. They must discharge their functions with complete detachment, impartiality, and independence even independence from the political party to which they belong. Hence, "disloyalty to party" and "breach of party discipline," are not valid grounds for the expulsion of a member of the tribunal. In expelling Congressman Camasura from the HRET for having cast a "conscience vote" in favor of Bondoc, based strictly on the result of the examination and appreciation of the ballots and the recount of the votes by the tribunal, the House of Representatives committed a grave abuse of discretion, an injustice, and a violation of the Constitution. Its resolution of expulsion against Congressman Camasura is, therefore, null and void. Expulsion of Congressman Camasura violates his right to security of tenure. Another reason for the nullity of the expulsion resolution of the House of Representatives is that it violates Congressman Camasura's right to security of tenure. Members of the HRET, as "sole judge" of congressional election contests, are entitled to security of tenure just as members of the judiciary enjoy security of tenure under our Constitution (Sec. 2, Art. VIII, 1987 Constitution). Therefore, membership in the House Electoral Tribunal may not be terminated except for a just cause, such as, the expiration of the member's congressional term of office, his death, permanent disability, resignation from the political party he represents in the tribunal, formal affiliation with another political party, or removal for other valid cause. A member may not be expelled by the House of Representatives for "party disloyalty" short of proof that he has formally affiliated with another political group. As the records of this case fail to show that Congressman Camasura has become a registered member of another political party, his expulsion from the LDP and from the HRET was not for a valid cause, hence, it violated his right to security of tenure.
LLjur

There is nothing to the argument of respondent Pineda that members of the House Electoral Tribunal are not entitled to security of tenure because, as a matter of fact, two Supreme Court Justices in the Tribunal were changed before the end of the congressional term, namely: Chief Justice Marcelo B. Fernan who, upon his elevation to the office of Chief Justice, was replaced by Justice Florentino P. Feliciano, and the latter, who was temporarily replaced by Justice Emilio A. Gancayco, when he (J. Feliciano) took a leave of absence to deliver a lecture in Yale University. It should be stressed, however, that those changes in the judicial composition to the HRET had no political implications at all

unlike the present attempt to remove Congressman Camasura. No coercion was applied on Chief Justice Fernan to resign from the tribunal, nor on Justice Feliciano to go on a leave of absence. They acted on their own free will, for valid reasons, and with no covert design to derail the disposition of a pending case in the HRET. The case of Congressman Camasura is different. He was expelled from, and by, the LDP to punish him for "party disloyalty" after he had revealed to the Secretary-General of the party how he voted in the Bondoc case. The purpose of the expulsion of Congressman Camasura was to nullify his vote in the Bondoc case so that the HRET's decision may not be promulgated, and so that the way could be cleared for the LDP to nominate a replacement for Congressman Camasura in the Tribunal. That stratagem of the LDP and the House of Representatives is clearly aimed to substitute Congressman Camasura's vote and, in effect, to change the judgment of the HRET in the Bondoc case. The judicial power of this Court has been invoked by Bondoc for the protection of his rights against the strong arm of the majority party in the House of Representatives. The Court cannot be deaf to his plea for relief, nor indifferent to his charge that the House of Representatives had acted with grave abuse of discretion in removing Congressman Camasura from the House Electoral Tribunal. He calls upon the Court, as guardian of the Constitution, to exercise its judicial power and discharge its duty to protect his rights as the party aggrieved by the action of the House. The Court must perform its duty under the Constitution "even when the violator be the highest official of the land or the Government itself" (Concurring opinion of J. Antonio Barredo in Aquino vs. PonceEnrile, 59 SCRA 183, 207).

Since the expulsion of Congressman Camasura from the House Electoral Tribunal by the House of Representatives was not for a lawful and valid cause, but to unjustly interfere with the tribunal's disposition of the Bondoc case and to deprive Bondoc of the fruits of the Tribunal's decision in his favor, the action of the House of Representatives is clearly violative of the constitutional mandate (Sec. 17, Art. VI, 1987 Constitution) which created the House Electoral Tribunal to be the "sole judge" of the election contest between Pineda and Bondoc. We, therefore, declare null and void the resolution dated March 13, 1991 of the House of Representatives withdrawing the nomination, and rescinding the election, of Congressman Camasura as a member of the House Electoral Tribunal. The petitioner, Dr. Emigdio Bondoc, is entitled to the reliefs he prays for in this case. WHEREFORE, the petition for certiorari, prohibition and mandamus is granted. The decision of the House of Representatives withdrawing the nomination and rescinding the election of Congressman Juanito G. Camasura, Jr. as a member of the House Electoral Tribunal is hereby declared null and void abinitio for being violative of the Constitution,

and Congressman Juanito G. Camasura, Jr. is ordered reinstated to his position as a member of the House of Representatives Electoral Tribunal. The HRET Resolution No. 91-0018 dated March 14, 1991, cancelling the promulgation of the decision in HRET Case No. 25 ("Dr. Emigdio Bondoc vs. Marciano A. Pineda") is also set aside. Considering the unconscionable delay incurred in the promulgation of that decision to the prejudice of the speedy resolution of electoral cases, the Court, in the exercise of its equity jurisdiction, and in the interest of justice, hereby declares the said decision DULY PROMULGATED, effective upon service of copies thereof on the parties, to be done immediately by the Tribunal. Costs against respondent Marciano A. Pineda. SO ORDERED.

SECOND DIVISION
[G.R. No. 128448. February 1, 2001.] SPOUSES ALEJANDRO MIRASOL and LILIA E. MIRASOL, petitioners, vs. THE COURT OF APPEALS, PHILIPPINE NATIONAL BANK, and PHILIPPINE EXCHANGE CO. INC., respondents. Alejandro M. Mirasol & Associates and Rodolfo V. Gumban & Carlos S. Ayeng for petitioners. The Chief Legal Counsel for respondent PNB. SYNOPSIS Petitioner spouses, sugarland owners and planters, entered into several crop loan financing schemes secured by chattel and real estate mortgages with respondent PNB. The latter was authorized to negotiate and sell sugar produced and to apply the proceeds to the payment of their obligations. Respondent PHILEX, under P.D. No. 579 (Rationalizing and Stabilizing The Export of Sugar and For Other Purposes) was authorized to purchase sugar allotted for export with PNB. An accounting was requested by petitioners, but PNB failed to comply. Petitioners conveyed several properties to PNB as dacion en pago when asked to settle their accounts. Petitioners reiterated their request for accounting, but PNB again failed to heed the same. Thus, the filing of Civil Case No. 14725 for accounting, specific performance and damages against PNB. PHILEX was impleaded as party defendant. The parties limited the issues to the constitutionality of PD No. 579, among others, and the amount due to the parties. During the trial, petitioners alleged that the loans granted them by PNB had been fully paid by virtue of compensation with the unliquidated amounts owed to them by PNB. The trial court, without notice to the Solicitor General, rendered judgment holding PD No. 579 unconstitutional, ordering private respondents to pay petitioners the whole amount corresponding to the residue of the unliquidated actual cost price of sugar exported and to pay moral damages and attorney's fees. On appeal, the Court of Appeals declared the dacion en pago valid and ordered PNB to render an a counting. It was held that Regional Trial Courts have the authority and jurisdiction to rule on the constitutionality of a statute, presidential decree or executive order. However, Section 3, Rule 64 of the Rules of Court provides that the Solicitor General must be notified of any action assailing the validity of a statute, treaty, presidential decree, order or proclamation. Without the required notice the government is deprived of its day in court and it was improper for the trial court to pass upon the constitutionality of the questioned PD.

Courts, as a rule, should not resolve the constitutionality of a law if the controversy can be settled on other ground. Compensation or set off cannot take place where neither of the parties are mutually creditors and debtors of each other and where one claim is still the subject of litigation. Moral damages and attorney's fees are recoverable where fraud or bad faith are duly proved. SYLLABUS 1.REMEDIAL LAW; REGIONAL TRIAL COURTS; WITH AUTHORITY AND JURISDICTION TO RULE ON CONSTITUTIONALITY OF STATUTE, PRESIDENTIAL DECREE OR EXECUTIVE ORDER. It is settled that Regional Trial Courts have the authority and jurisdiction to consider the constitutionality of a statute, presidential decree, or executive order. The Constitution vests the power of judicial review or the power to declare a law, treaty, international or executive agreement, presidential decree, order, instruction, ordinance, or regulation not only in this Court, but in all Regional Trial Courts . . . . Furthermore, B.P. Blg. 129 grants Regional Trial Courts the authority to rule on the conformity of laws or treaties with the Constitution. 2.ID.; ID.; ID.; NOTICE TO SOLICITOR GENERAL, MANDATORY. It is basic legal construction that where words of command such as "shall," "must," or "ought" are employed, they are generally and ordinarily regarded as mandatory. Thus, where, as in Rule 64, Section 3 of the Rules of Court, the word "shall" is used, a mandatory duty is imposed, which the courts ought to enforce. The purpose of the mandatory notice in Rule 64, Section 3 is to enable the Solicitor General to decide whether or not his intervention in the action assailing the validity of a law or treaty is necessary. To deny the Solicitor General such notice would be tantamount to depriving him of his day in court. We must stress that, contrary to petitioners' stand, the mandatory notice requirement is not limited to actions involving declaratory relief and similar remedies. The rule itself provides that such notice is required in "any action" and not just actions involving declaratory relief. Where there is no ambiguity in the words used in the rule, there is no room for construction. In all actions assailing the validity of a statute, treaty, presidential decree, order, or proclamation, notice to the Solicitor General is mandatory. 3.ID.; ID.; ID.; EFFECT OF FAILURE TO NOTIFY SOLICITOR GENERAL; CASE AT BAR. In this case, the Solicitor General was never notified about Civil Case No. 14725. Nor did the trial court ever require him to appear in person or by a representative or to file any pleading or memorandum on the constitutionality of the assailed decree. Hence, the Court of Appeals did not err in holding that lack of the required notice made it

improper for the trial court to pass upon the constitutional validity of the questioned presidential decrees.
HTcADC

4.ID.; SUPREME COURT; REQUISITES FOR EXERCISE OF JUDICIAL REVIEW. Jurisprudence has laid down the following requisites for the exercise of this power: First, there must be before the Court an actual case calling for the exercise of judicial review. Second, the question before the Court must be ripe for adjudication. Third, the person challenging the validity of the act must have standing to challenge. Fourth, the question of constitutionality must have been raised at the earliest opportunity, and lastly, the issue of constitutionality must be the very lis mota of the case. 5.ID.; ACTIONS; COURTS, AS A RULE, WILL NOT RESOLVE CONSTITUTIONALITY OF LAW IF CONTROVERSY CAN BE SETTLED ON OTHER GROUNDS. As a rule, the courts will not resolve the constitutionality of a law, if the controversy can be settled on other grounds. The policy of the courts is to avoid ruling on constitutional questions and to presume that the acts of the political departments are valid, absent a clear and unmistakable showing to the contrary. To doubt is to sustain. This presumption is based on the doctrine of separation of powers. This means that the measure had first been carefully studied by the legislative and executive departments and found to be in accord with the Constitution before it was finally enacted and approved. 6.ID.; ID.; ID.; CASE AT BAR. The present case was instituted primarily for accounting and specific performance. The Court of Appeals correctly ruled that PNB's obligation to render an accounting is an issue, which can be determined, without having to rule on the constitutionality of P.D. No. 579. In fact there is nothing in P.D. No. 579, which is applicable to PNB's intransigence in refusing to give an accounting. The governing law should be the law on agency, it being undisputed that PNB acted as petitioners' agent. In other words, the requisite that the constitutionality of the law in question be the very lis mota of the case is absent. Thus we cannot rule on the constitutionality of P.D. No. 579. 7.STATUTORY CONSTRUCTION; IMPLIED REPEAL, NOT FAVORED. Petitioners further contend that the passage of R.A. No. 7202 rendered P.D. No. 579 unconstitutional, since R.A. No. 7202 affirms that under P.D. 579, the due process clause of the Constitution and the right of the sugar planters not to be deprived of their property without just compensation were violated. A perusal of the text of R.A. No. 7202 shows that the repealing clause of said law merely reads: "SEC. 10. All laws, acts, executive orders and circulars in conflict herewith are hereby repealed or modified accordingly." The settled rule of statutory construction is that repeals by implication are not favored. R.A. No. 7202 cannot be deemed to have repealed P.D. No. 579. In addition, the power to declare a law unconstitutional does not lie with the legislature, but with the courts.

Assuming arguendo that R.A. No. 7202 did indeed repeal P.D. No. 579, said repeal is not a legislative declaration finding the earlier law unconstitutional. 8.ID.; EVIDENCE; FINDINGS OF FACT BY COURT OF APPEALS, CONCLUSIVE AND BINDING. Findings of fact by the Court of Appeals are conclusive and binding upon this Court unless said findings are not supported by the evidence. Our jurisdiction in a petition for review under Rule 45 of the Rules of Court is limited only to reviewing questions of law and factual issues are not within its province. In view of the aforequoted finding of fact, no manifest error is chargeable to the respondent court for refusing to pierce the veil of corporate fiction. 9.CIVIL LAW; OBLIGATIONS AND CONTRACTS; COMPENSATION; REQUISITES. For legal compensation to take place, the requirements set forth in Article 1278 and 1279 of the Civil Code must be present. Said articles read as follows: "Art. 1278. Compensation shall take place when two persons, in their own right, are creditors and debtors of each other. Art. 1279. In order that compensation may be proper, it is necessary: (1) That each one of the obligors be bound principally, and that he be at the same time a principal creditor of the other; (2) That both debts consist in a sum of money, or if the things due are consumable, they be of the same kind, and also of the same quality if the latter has been stated; (3) That the two debts are due; (4) That they be liquidated and demandable; (5) That over neither of them there be any retention or controversy, commenced by third persons and communicated in due time to the debtor." 10.ID.; ID.; ID.; CASE AT BAR. In the present case, set-off or compensation cannot take place between the parties because: First, neither of the parties are mutually creditors and debtors of each other. Under P.D. No. 579, neither PNB nor PHILEX could retain any difference claimed by the Mirasols in the price of sugar sold by the two firms, P.D. No. 579 prescribed where the profits from the sales are to be paid . . . . Thus, as correctly found by the Court of Appeals, "there was nothing with which PNB was supposed to have off-set Mirasols' admitted indebtedness." Second, compensation cannot take place where one claim, as in the instant case, is still the subject of litigation, as the same cannot be deemed liquidated.

11.REMEDIAL LAW; EVIDENCE; FACTUAL FINDINGS OF TRIAL COURT, AFFIRMED BY APPELLATE COURT, CONCLUSIVE ON APPEAL. With respect to the duress allegedly employed by PNB, which impugned petitioners' consent to the dacion en pago, both the trial court and the Court of Appeals found that there was no evidence to support said claim. Factual findings of the trial court, affirmed by the appellate court, are conclusive upon this Court.

12.CIVIL LAW; DAMAGES; MORAL DAMAGES FOR BREACH OF CONTRACT; FRAUD OR BAD FAITH MUST BE DULY PROVED; CASE AT BAR. An agent's failure to render an accounting to his principal is contrary to Article 1891 of the Civil Code. The erring agent is liable for damages under Article 1170 of the Civil Code . . . . Article 1170 of the Civil Code, however, must be construed in relation to Article 2217 of said Code . . . . Moral damages are explicitly authorized in breaches of contract where the defendant acted fraudulently or in bad faith. Good faith, however, is always presumed and any person who seeks to be awarded damages due to the acts of another has the burden of proving that the latter acted in bad faith, with malice, or with ill motive. In the instant case, petitioners have failed to show malice or bad faith on the part of PNB in failing to render an accounting. Absent such showing, moral damages cannot be awarded. 13.ID.; ID.; ATTORNEY'S FEES; BAD FAITH MUST BE PROVED. Under Article 2208 (5) of the Civil Code, attorney's fees are allowed in the absence of stipulation only if "the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff's plainly valid, just, and demandable claim." As earlier stated, petitioners have not proven bad faith on the part of PNB and PHILEX.

DECISION

QUISUMBING, J :
p

This is a petition for review on certiorari of the decision of the Court of Appeals dated July 22, 1996, in CA-G.R. CV No. 38607, as well as of its resolution of January 23, 1997, denying petitioners' motion for reconsideration. The challenged decision reversed the judgment of the Regional Trial Court of Bacolod City, Branch 42 in Civil Case No. 14725. The factual background of this case, as gleaned from the records, is as follows: The Mirasols are sugarland owners and planters. In 1973-1974, they produced 70,501.08 piculs 1 of sugar, 25,662.36 of which were assigned for export. The following crop year, their acreage planted to the same crop was lower, yielding 65,100 piculs of sugar, with 23,696.40 piculs marked for export. Private respondent Philippine National Bank (PNB) financed the Mirasols' sugar production venture for crop years, 1973-1974 and 1974-1975 under a crop loan financing scheme. Under said scheme, the Mirasols signed Credit Agreements, a Chattel Mortgage on Standing Crops, and a Real Estate Mortgage in favor of PNB. The Chattel Mortgage empowered PNB as the petitioners' attorney-in-fact to negotiate and to sell the latter's

sugar in both domestic and export markets and to apply the proceeds to the payment of their obligations to it. Exercising his law-making powers under Martial Law, then President Ferdinand Marcos issued Presidential Decree (P.D.) No. 579 2 in November, 1974. The decree authorized private respondent Philippine Exchange Co., Inc. (PHILEX) to purchase sugar allocated for export to the United States and to other foreign markets. The price and quantity was determined by the Sugar Quota Administration, PNB, the Department of Trade and Industry, and finally, by the Office of the President. The decree further authorized PNB to finance PHILEX's purchases. Finally, the decree directed that whatever profit PHILEX might realize from sales of sugar abroad was to be remitted to a special fund of the national government, after commissions, overhead expenses and liabilities had been deducted. The government offices and entities tasked by existing laws and administrative regulations to oversee the sugar export pegged the purchase price of export sugar in crop years 1973-1974 and 1974-1975 at P180.00 per picul. PNB continued to finance the sugar production of the Mirasols for crop years 1975-1976 and 1976-1977. These crop loans and similar obligations were secured by real estate mortgages over several properties of the Mirasols and chattel mortgages over standing crops. Believing that the proceeds of their sugar sales to PNB, if properly accounted for, were more than enough to pay their obligations, petitioners asked PNB for an accounting of the proceeds of the sale of their export sugar. PNB ignored the request. Meanwhile, petitioners continued to avail of other loans from PNB and to make unfunded withdrawals from their current accounts with said bank. PNB then asked petitioners to settle their due and demandable accounts. As a result of these demands for payment, petitioners on August 4, 1977, conveyed to PNB real properties valued at P1,410,466.00 by way of dacion en pago, leaving an unpaid overdrawn account of P1,513,347.78. On August 10, 1982, the balance of outstanding sugar crop and other loans owed by petitioners to PNB stood at P15,964,252.93. Despite demands, the Mirasols failed to settle said due and demandable accounts. PNB then proceeded to extrajudicially foreclose the mortgaged properties. After applying the proceeds of the auction sale of the mortgaged realties, PNB still had a deficiency claim of P12,551,252.93. Petitioners continued to ask PNB to account for the proceeds of the sale of their export sugar for crop years 1973-1974 and 1974-1975, insisting that said proceeds, if properly liquidated, could offset their outstanding obligations with the bank. PNB remained adamant in its stance that under P.D. No. 579, there was nothing to account since under said law, all earnings from the export sales of sugar pertained to the National Government and were subject to the disposition of the President of the Philippines for public purposes.

On August 9, 1979, the Mirasols filed a suit for accounting, specific performance, and damages against PNB with the Regional Trial Court of Bacolod City, docketed as Civil Case No. 14725. On June 16, 1987, the complaint was amended to implead PHILEX as party-defendant. The parties agreed at pre-trial to limit the issues to the following:
"1.The constitutionality and/or legality of Presidential Decrees numbered 338, 579, and 1192; "2.The determination of the total amount allegedly due the plaintiffs from the defendants corresponding to the allege(d) unliquidated cost price of export sugar during crop years 1973-1974 and 1974-1975." 3

After trial on the merits, the trial court decided as follows:

"WHEREFORE, the foregoing premises considered, judgment is hereby rendered in favor of the plaintiffs and against the defendants Philippine National Bank (PNB) and Philippine Exchange Co., Inc. (PHILEX): (1)Declaring Presidential Decree 579 enacted on November 12, 1974 and all circulars, as well as policies, orders and other issuances issued in furtherance thereof, unconstitutional and therefore, NULL and VOID being in gross violation of the Bill of Rights; (2)Ordering defendants PNB and PHILEX to pay, jointly and severally, plaintiffs the whole amount corresponding to the residue of the unliquidated actual cost price of 25,662 piculs in export sugar for crop year 1973-1974 at an average price of P300.00 per picul, deducting therefrom however, the amount of P180.00 already paid in advance plus the allowable deductions in service fees and other charges; (3)And also, for the same defendants to pay, jointly and severally, same plaintiffs the whole amount corresponding to the unpaid actual price of 14,596 piculs of export sugar for crop year 1974-1975 at an average rate of P214.14 per picul minus however, the sum of P180.00 per picul already paid by the defendants in advance and the allowable deducting (sic) in service fees and other charges.
CHDTIS

"The unliquidated amount of money due the plaintiffs but withheld by the defendants, shall earn the legal rate of interest at 12% per annum computed from the date this action was instituted until fully paid; and, finally

(4)Directing the defendants PNB and PHILEX to pay, jointly and severally, plaintiffs the sum of P50,000.00 in moral damages and the amount of P50,000.00 as attorney's fees, plus the costs of this litigation. "SO ORDERED." 4

The same was, however, modified by a Resolution of the trial court dated May 14, 1992, which added the following paragraph:
"This decision should however, be interpreted without prejudice to whatever benefits that may have accrued in favor of the plaintiffs with the passage and approval of Republic Act 7202 otherwise known as the 'Sugar Restitution Law,' authorizing the restitution of losses suffered by the plaintiffs from Crop year 1974-1975 to Crop year 1984-1985 occasioned by the actuations of government-owned and controlled agencies. (Emphasis in the original). "SO ORDERED." 5

The Mirasols then filed an appeal with the respondent court, docketed as CA-G.R CV No. 38607, faulting the trial court for not nullifying the dacion en pago and the mortgage contracts, as well as the foreclosure of their mortgaged properties. Also faulted was the trial court's failure to award them the full money claims and damages sought from both PNB and PHILEX. On July 22, 1996, the Court of Appeals reversed the trial court as follows:
"WHEREFORE, this Court renders judgment REVERSING the appealed Decision and entering the following verdict: "1.Declaring the dacion en pago and the foreclosure of the mortgaged properties valid; "2.Ordering the PNB to render an accounting of the sugar account of the Mirasol[s] specifically stating the indebtedness of the latter to the former and the proceeds of Mirasols' 1973-1974 and 1974-1975 sugar production sold pursuant to and in accordance with P.D. 579 and the issuances therefrom; "3.Ordering the PNB to recompute in accordance with RA 7202 Mirasols' indebtedness to it crediting to the latter payments already made as well as the auction price of their foreclosed real estate and stipulated value of their properties ceded to PNB in the dacon (sic) en pago;

"4.Whatever the result of the recomputation of Mirasols' account, the outstanding balance or the excess payment shall be governed by the pertinent provisions of RA 7202. "SO ORDERED." 6

On August 28, 1996, petitioners moved for reconsideration, which the appellate court denied on January 23, 1997. Hence, the instant petition, with petitioners submitting the following issues for our resolution:
"1.Whether the Trial Court has jurisdiction to declare a statute unconstitutional without notice to the Solicitor General where the parties have agreed to submit such issue for the resolution of the Trial Court. "2..Whether PD 579 and subsequent issuances 7 thereof are unconstitutional. "3.Whether the Honorable Court of Appeals committed manifest error in not applying the doctrine of piercing the corporate veil between respondents PNB and PHILEX. "4.Whether the Honorable Court of Appeals committed manifest error in upholding the validity of the foreclosure on petitioners property and in upholding the validity of the dacion en pago in this case. "5.Whether the Honorable Court of Appeals committed manifest error in not awarding damages to petitioners grounds relied upon the allowance of the petition. (Underscored in the original)" 8

On the first issue. It is settled that Regional Trial Courts have the authority and jurisdiction to consider the constitutionality of a statute, presidential decree, or executive order. 9 The Constitution vests the power of judicial review or the power to declare a law, treaty, international or executive agreement, presidential decree, order, instruction, ordinance, or regulation not only in this Court, but in all Regional Trial Courts 10 In J.M. Tuason and Co. v. Court of Appeals, 3 SCRA 696 (1961) we held:
"Plainly, the Constitution contemplates that the inferior courts should have jurisdiction in cases involving constitutionality of any treaty or law, for it speaks of appellate review of final judgments of inferior courts in cases where such constitutionality happens to be in issue." 11

Furthermore, B.P. Blg. 129 grants Regional Trial Courts the authority to rule on the conformity of laws or treaties with the Constitution, thus:

"SECTION 19.Jurisdiction in civil cases. Regional Trial Courts shall exercise exclusive original jurisdiction: (1)In all civil actions in which the subject of the litigations is incapable of pecuniary estimation;"

The pivotal issue, which we must address, is whether it was proper for the trial court to have exercised judicial review. Petitioners argue that the Court of Appeals erred in finding that it was improper for the trial court to have declared P.D. No. 579 12 unconstitutional, since petitioners had not complied with Rule 64, Section 3, of the Rules of Court. Petitioners contend that said Rule specifically refers only to actions for declaratory relief and not to an ordinary action for accounting, specific performance, and damages. Petitioners' contentions are bereft of merit. Rule 64, Section 3 of the Rules of Court provides:
"SECTION 3.Notice to Solicitor General. In any action which involves the validity of a statute, or executive order or regulation, the Solicitor General shall be notified by the party attacking the statute, executive order, or regulation, and shall be entitled to be heard upon such question."

This should be read in relation to Section 1 [c] of P.D. No. 478, 13 which states in part:
"SECTION 1.Functions and Organizations (1) The Office of the Solicitor General shall . . . have the following specific powers and functions:
SDECAI

xxx xxx xxx "[c]Appear in any court in any action involving the validity of any treaty, law, executive order or proclamation, rule or regulation when in his judgment his intervention is necessary or when requested by the court."

It is basic legal construction that where words of command such as "shall," "must," or "ought" are employed, they are generally and ordinarily regarded as mandatory. 14 Thus, where, as in Rule 64, Section 3 of the Rules of Court, the word "shall" is used, a mandatory duty is imposed, which the courts ought to enforce. The purpose of the mandatory notice in Rule 64, Section 3 is to enable the Solicitor General to decide whether or not his intervention in the action assailing the validity of a law or treaty is necessary. To deny the Solicitor General such notice would be tantamount to depriving him of his day in court. We must stress that, contrary to petitioners' stand, the mandatory notice requirement is not limited to actions involving declaratory relief and similar remedies. The rule itself provides that such notice is required in "any action"

and not just actions involving declaratory relief. Where there is no ambiguity in the words used in the rule, there is no room for construction. 15 In all actions assailing the validity of a statute, treaty, presidential decree, order, or proclamation, notice to the Solicitor General is mandatory. In this case, the Solicitor General was never notified about Civil Case No. 14725. Nor did the trial court ever require him to appear in person or by a representative or to file any pleading or memorandum on the constitutionality of the assailed decree. Hence, the Court of Appeals did not err in holding that lack of the required notice made it improper for the trial court to pass upon the constitutional validity of the questioned presidential decrees. As regards the second issue, petitioners contend that P.D. No. 579 and its implementing issuances are void for violating the due process clause and the prohibition against the taking of private property without just compensation. Petitioners now ask this Court to exercise its power of judicial review. Jurisprudence has laid down the following requisites for the exercise of this power: First, there must be before the Court an actual case calling for the exercise of judicial review. Second, the question before the Court must be ripe for adjudication. Third, the person challenging the validity of the act must have standing to challenge. Fourth, the question of constitutionality must have been raised at the earliest opportunity, and lastly, the issue of constitutionality must be the very lis mota of the case. 16 As a rule, the courts will not resolve the constitutionality of a law, if the controversy can be settled on other grounds. 17 The policy of the courts is to avoid ruling on constitutional questions and to presume that the acts of the political departments are valid, absent a clear and unmistakable showing to the contrary. To doubt is to sustain. This presumption is based on the doctrine of separation of powers. This means that the measure had first been carefully studied by the legislative and executive departments and found to be in accord with the Constitution before it was finally enacted and approved. 18 The present case was instituted primarily for accounting and specific performance. The Court of Appeals correctly ruled that PNB's obligation to render an accounting is an issue, which can be determined, without having to rule on the constitutionality of P.D. No. 579. In fact there is nothing in P.D. No. 579, which is applicable to PNB's intransigence in refusing to give an accounting. The governing law should be the law on agency, it being undisputed that PNB acted as petitioners' agent. In other words, the requisite that the constitutionality of the law in question be the very lis mota of the case is absent. Thus we cannot rule on the constitutionality of P.D. No. 579. Petitioners further contend that the passage of R.A. No. 7202 19 rendered P.D. No. 579 unconstitutional, since R.A. No. 7202 affirms that under P.D. 579, the due process clause

of the Constitution and the right of the sugar planters not to be deprived of their property without just compensation were violated. A perusal of the text of RA. No. 7202 shows that the repealing clause of said law merely reads:
"SECTION 10.All laws, acts, executive orders and circulars in conflict herewith are hereby repealed or modified accordingly."

The settled rule of statutory construction is that repeals by implication are not favored. 20 R.A. No. 7202 cannot be deemed to have repealed P.D. No. 579. In addition, the power to declare a law unconstitutional does not lie with the legislature, but with the courts. 21 Assuming arguendo that R.A. No. 7202 did indeed repeal P.D. No. 579, said repeal is not a legislative declaration finding the earlier law unconstitutional. To resolve the third issue, petitioners ask us to apply the doctrine of piercing the veil of corporate fiction with respect to PNB and PHILEX. Petitioners submit that PHILEX was a wholly-owned subsidiary of PNB prior to the latter's privatization. We note, however, that the appellate court made the following finding of fact:
"1.PNB and PHILEX are separate juridical persons and there is no reason to pierce the veil of corporate personality. Both existed by virtue of separate organic acts. They had separate operations and different purposes and powers."
22

Findings of fact by the Court of Appeals are conclusive and binding upon this Court unless said findings are not supported by the evidence. 23 Our jurisdiction in a petition for review under Rule 45 of the Rules of Court is limited only to reviewing questions of law and factual issues are not within its province. 24 In view of the aforequoted finding of fact, no manifest error is chargeable to the respondent court for refusing to pierce the veil of corporate fiction. On the fourth issue, the appellate court found that there were two sets of accounts between petitioners and PNB, namely:
"1.The accounts relative to the loan financing scheme entered into by the Mirasols with PNB (PNB's Brief, p. 16) On the question of how much the PNB lent the Mirasols for crop years 1973-1974 and 1974-1975, the evidence recited by the lower court in its decision was deficient. We are offered (sic) PNB the amount of FIFTEEN MILLION NINE HUNDRED SIXTY FOUR THOUSAND TWO HUNDRED FIFTY TWO PESOS and NINETY THREE Centavos (Ps15,964,252.93) but this is the alleged balance the Mirasols owe PNB covering the years 1975 to 1982.

"2.The account relative to the Mirasol's current account Numbers 5186 and 5177 involving the amount of THREE MILLION FOUR HUNDRED THOUSAND Pesos (P3,400,000.00) PNB claims against the Mirasols. (PNB's Brief, p. 17) "In regard to the first set of accounts, besides the proceeds from PNB's sale of sugar (involving the defendant PHILEX in relation to the export portion of the stock), the PNB foreclosed the Mirasols' mortgaged properties realizing therefrom in 1982 THREE MILLION FOUR HUNDRED THIRTEEN THOUSAND Pesos (P3,413,000.00), the PNB itself having acquired the properties as the highest bidder. "As to the second set of accounts, PNB proposed, and the Mirasols accepted, a dacion en pago scheme by which the Mirasols conveyed to PNB pieces of property valued at ONE MILLION FOUR HUNDRED TEN THOUSAND FOUR HUNDRED SIXTY-SIX Pesos (Ps1,410,466.00) (PNB's Brief, pp. 1617)." 25

Petitioners now claim that the dacion en pago and the foreclosure of their mortgaged properties were void for want of consideration. Petitioners insist that the loans granted them by PNB from 1975 to 1982 had been fully paid by virtue of legal compensation. Hence, the foreclosure was invalid and of no effect, since the mortgages were already fully discharged. It is also averred that they agreed to the dacion only by virtue of a martial law Arrest, Search, and Seizure Order (ASSO). We find petitioners' arguments unpersuasive. Both the lower court and the appellate court found that the Mirasols admitted that they were indebted to PNB in the sum stated in the latter's counterclaim. 26 Petitioners nonetheless insist that the same can be offset by the unliquidated amounts owed them by PNB for crop years 1973-74 and 1974-75. Petitioners' argument has no basis in law. For legal compensation to take place, the requirements set forth in Articles 1278 and 1279 of the Civil Code must be present. Said articles read as follows:
"ARTICLE 1278.Compensation shall take place when two persons, in their own right, are creditors and debtors of each other. "ARTICLE 1279.In order that compensation may be proper, it is necessary: (1)That each one of the obligors be bound principally, and that he be at the same time a principal creditor of the other;

(2)That both debts consist in a sum of money, or if the things due are consumable, they be of the same kind, and also of the same quality if the latter has been stated; (3)That the two debts are due; (4)That they be liquidated and demandable; (5)That over neither of them there be any retention or controversy, commenced by third persons and communicated in due time to the debtor."

In the present case, set-off or compensation cannot take place between the parties because: First, neither of the parties are mutually creditors and debtors of each other. Under P.D. No. 579, neither PNB nor PHILEX could retain any difference claimed by the Mirasols in the price of sugar sold by the two firms. P.D. No. 579 prescribed where the profits from the sales are to be paid, to wit:
"SECTION 7.. . . After deducting its commission of two and one-half (2-1/2%) percent of gross sales, the balance of the proceeds of sugar trading operations for every crop year shall be set aside by the Philippine Exchange Company, Inc,. as profits which shall be paid to a special fund of the National Government subject to the disposition of the President for public purposes."

Thus, as correctly found by the Court of Appeals, "there was nothing with which PNB was supposed to have off-set Mirasols' admitted indebtedness." 27 Second, compensation cannot take place where one claim, as in the instant case, is still the subject of litigation, as the same cannot be deemed liquidated. 28 With respect to the duress allegedly employed by PNB, which impugned petitioners' consent to the dacion en pago, both the trial court and the Court of Appeals found that there was no evidence to support said claim. Factual findings of the trial court, affirmed by the appellate court, are conclusive upon this Court. 29 On the fifth issue, the trial court awarded petitioners P50,000.00 in moral damages and P50,000.00 in attorney's fees. Petitioners now theorize that it was error for the Court of Appeals to have deleted these awards, considering that the appellate court found PNB breached its duty as an agent to render an accounting to petitioners. An agent's failure to render an accounting to his principal is contrary to Article 1891 of the Civil Code. 30 The erring agent is liable for damages under Article 1170 of the Civil Code, which states:

"Those who in the performance of their obligations are guilty of fraud, negligence, or delay, and those who in any manner contravene the tenor thereof, are liable for damages."

Article 1170 of the Civil Code, however, must be construed in relation to Article 2217 of said Code which reads:
"Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant's wrongful act or omission."

Moral damages are explicitly authorized in breaches of contract where the defendant acted fraudulently or in bad faith. 31 Good faith, however, is always presumed and any person who seeks to be awarded damages due to the acts of another has the burden of proving that the latter acted in bad faith, with malice, or with ill motive. In the instant case, petitioners have failed to show malice or bad faith 32 on the part of PNB in failing to render an accounting. Absent such showing, moral damages cannot be awarded. Nor can we restore the award of attorney's fees and costs of suit in favor of petitioners. Under Article 2208 (5) of the Civil Code, attorney's fees are allowed in the absence of stipulation only if "the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff's plainly valid, just, and demandable claim." As earlier stated, petitioners have not proven bad faith on the part of PNB and PHILEX.
IECcaA

WHEREFORE, the instant petition is DENIED and the assailed decision of the respondent court in CA-G.R. CV 38607 AFFIRMED. Costs against petitioners. SO ORDERED.

EN BANC
[G.R. No. L-52245. January 22, 1980.] PATRICIO DUMLAO, ROMEO B. IGOT, and ALFREDO SALAPANTAN, JR., petitioners, vs. COMMISSION ON ELECTIONS, respondent. Raul M . Gonzales for petitioners. Office of the Solicitor General for respondent.

DECISION

MELENCIO-HERRERA, J :
p

This is a Petition for Prohibition with Preliminary Injunction and/or Restraining Order filed by petitioners, in their own behalf and all others allegedly similarly situated, seeking to enjoin respondent Commission on Elections (COMELEC) from implementing certain provisions of Batas Pambansa Blg. 51, 52, and 53 for being unconstitutional. The Petition alleges that petitioner, Patricio Dumlao, is a former Governor of Nueva Vizcaya, who has filed his certificate of candidacy for said position of Governor in the forthcoming elections of January 30, 1980. Petitioner, Romeo B. Igot, is a taxpayer, a qualified voter and a member of the Bar who, as such, has taken his oath to support the Constitution and obey the laws of the land. Petitioner, Alfredo Salapantan, Jr., is also a taxpayer, a qualified voter, and a resident of San Miguel, Iloilo.
cdasia

Petitioner Dumlao specifically questions the constitutionality of section 4 of Batas Pambansa Blg. 52 as discriminatory and contrary to the equal protection and due process guarantees of the Constitution. Said Section 4 provides:
"Sec. 4.Special Disqualification. In addition to violation of section 10 of Art. XII-C of the Constitution and disqualification mentioned in existing laws, which are hereby declared as disqualification for any of the elective officials enumerated in section 1 hereof. Any retired elective provincial, city of municipal official who has received payment of the retirement benefits to which he is entitled under the law and who shall have been 65 years of age at the commencement of the term of office to

which he seeks to be elected, shall not be qualified to run for the same elective local office from which he has retired." (Paragraphing and emphasis supplied)

Petitioner Dumlao alleges that the aforecited provision is directed insidiously against him, and that the classification provided therein is based on "purely arbitrary grounds and, therefore, class legislation." For their part, petitioners Igot and Salapantan, Jr. assail the validity of the following statutory provisions:
"Sec. 7.Term of office. Unless sooner removed for cause, all local elective officials hereinabove mentioned shall hold office for a term of six (6) years. which shall commence on the first Monday of March 1980." . . ." Batas Pambansa Blg. 51 "Sec. 4.. . . "Any person who has committed any act of disloyalty to the State, including acts amounting to subversion, insurrection, rebellion or other similar crimes, shall not be qualified to be a candidate for any of the offices covered by this Act, or to participate in any partisan political activity therein: provided, that a judgment of conviction for any of the aforementioned crimes shall be conclusive evidence of such fact and. the filing of charges for the commission of such crimes before a civil court or military tribunal after preliminary investigation shall be prima facie evidence of such fact. ". . . (Batas Pambansa Blg. 52) (Paragraphing and emphasis supplied). "Section 1.Election of certain Local Officials. . . . The election shall be held on January 30, 1980." (Batas Pambansa, Blg. 52). "Section 6.Election and Campaign Period. The election period shall be fixed by the Commission on Elections in accordance with Section 6, Art. XII-C of the Constitution. The period of campaign shall commence on December 29, 1979 and terminate on January 28, 1980." (ibid.)

In addition to the above-cited provisions, petitioners Igot and Salapantan, Jr. also question the accreditation of some political parties by respondent COMELEC, as authorized by Batas Pambansa Blg. 53, on the ground that it is contrary to section 9(1), Art. XII(C) of the Constitution, which provides that a "bona fide candidate for any public office shall be free from any form of harassment and discrimination."

The question of accreditation will not be taken up in this case but in that of Bacalso, et als., vs. COMELEC et als. (G.R. No. L-52232) where the issue has been squarely raised.
cdasia

Petitioners then pray that the statutory provisions they have challenged be declared null and void for being violative of the Constitution. I.The procedural aspect. At the outset, it should be stated that this Petition suffers from basic procedural infirmities, hence, traditionally unacceptable for judicial resolution. For one, there is a misjoinder of parties and actions. Petitioner Dumlao's interest is alien to that of petitioners Igot and Salapantan. Petitioner Dumlao does not join petitioners Igot and Salapantan in the burden of their complaint, nor do the latter join Dumlao in his. They, respectively, contest completely different statutory provisions. Petitioner Dumlao has joined this suit in his individual capacity as a candidate. The action of petitioners Igot and Salapantan is more in the nature of a taxpayer's suit. Although petitioners plead time constraints as the reason of their joint Petition, it would have required only a modicum more of effort for petitioner Dumlao, on one hand, and petitioners Igot and Salapantan, on the other, to have filed separate suits, in the interest of orderly procedure. For another, there are standards that have to be followed in the exercise of the function of judicial review, namely: (1) the existence of an appropriate case; (2) an interest personal and substantial by the party raising the constitutional question; (3) the plea that the function be exercised at the earliest opportunity; and (4) the necessity that the constitutional question be passed upon in order to decide the case (People vs. Vera, 65 Phil. 56 [1937]). It may be conceded that the third requisite has been complied with, which is, that the parties have raised the issue of constitutionality early enough in their pleadings. This Petition, however, has fallen far short of the other three criteria. A.Actual case and controversy. It is basic that the power of judicial review is limited to the determination of actual cases and controversies. Petitioner Dumlao assails the constitutionality of the first paragraph of section 4 of Batas Pambansa Blg. 52, quoted earlier, as being contrary to the equal protection clause guaranteed by the Constitution, and seeks to prohibit respondent COMELEC from implementing said provision. Yet, Dumlao has not been adversely affected by the application of that provision. No petition seeking Dumlao's disqualification has been filed before the COMELEC. There is no ruling of that constitutional body on the matter, which

this Court is being asked to review on Certiorari. His is a question posed in the abstract, a hypothetical issue, and in effect, a petition for an advisory opinion from this Court to be "rendered without the benefit of a detailed factual record." Petitioner Dumlao's case is clearly within the primary jurisdiction (see concurring Opinion of now Chief Justice Fernando in Peralta vs. Comelec, 82 SCRA 30, 96 [1978]) of respondent COMELEC as provided for in section 2, Art. XII-C, for the Constitution the pertinent portion of which reads:
"Section 2.The Commission on Elections shall have the following power and functions. 1). . . 2)Be the sole judge of all contests relating to the elections, returns and qualifications of all members of the National Assembly and elective provincial and city officials." (Emphasis supplied)

The aforequoted provision must also be related to section 11 of Art. XII-C, which provides:
"Section 11.Any decision, order, or ruling of the Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from his receipt of a copy thereof."

B.Proper party. The long-standing rule has been that "the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement" (People vs. Vera, supra). In the case of petitioners Igot and Salapantan, it was only during the hearing, not in their Petition, that Igot is said to be a candidate for Councilor. Even then, it cannot be denied that neither one has been convicted nor charged with acts of disloyalty to the State, nor disqualified from being candidates for local elective positions. Neither one of them has been alleged to have been adversely affected by the operation of the statutory provisions they assail as unconstitutional. Theirs is a generalized grievance. They have no personal nor substantial interest at stake. In the absence of any litigate interest, they can claim no locus standi in seeking judicial redress.
LibLex

It is true that petitioners Igot and Salapantan have instituted this case as a taxpayer's suit, and that the rule enunciated in People vs. Vera, above stated, has been relaxed in Pascual vs. The Secretary of Public Works (110 Phil. 331 [1960], thus:

". . . it is well settled that the validity of a statute may be contested only by one who will sustain a direct injury in consequence of its enforcement. Yet, there are many decisions nullifying, at the instance of taxpayers, laws providing for the disbursement of public funds, upon the theory that 'the expenditure of public funds, by an officer of the State for the purpose of administering an unconstitutional act constitutes a misapplication of such funds,' which may be enjoined at the request of a taxpayer."

In the same vein, it has been held:

"In the determination of the degree of interest essential to give the requisite standing to attack the constitutionality of a statute, the general rule is that not only persons individually affected, but also taxpayers have sufficient interest in preventing the illegal expenditure of moneys raised by taxation and they may, therefore, question the constitutionality of statutes requiring expenditure of public moneys." (Philippine Constitution Association, Inc., et als., vs. Gimenez, et als. 15 SCRA 479 [1965]).

However, the statutory provisions questioned in this case, namely, sec. 7, BP Blg. 51, and sections 4, 1, and 6 BP Blg. 52, do not directly involve the disbursement of public funds. While, concededly, the elections to be held involve the expenditure of public moneys, nowhere in their Petition do said petitioners allege that their tax money is "being extracted and spent in violation of specific constitutional protections against abuses of legislative power" (Flast v. Cohen, 392 U.S., 83 [1960]), or that there is a misapplication of such funds by respondent COMELEC (see Pascual vs. Secretary of Public Works, 110 Phil. 331 [1960]), or that public money is being deflected to any improper purpose. Neither do petitioners seek to restrain respondent from wasting public funds through the enforcement of an invalid or unconstitutional law. (Philippine Constitution Association vs. Mathay, 18 SCRA 300 [1966]), citing Philippine Constitution Association vs. Gimenez, 15 SCRA 479 [1965]). Besides, the institution of a taxpayer's suit, per se, is no assurance of judicial review. As held by this Court in Tan vs. Macapagal (43 SCRA 677 [1972]), speaking through our present Chief Justice, this Court is vested with discretion as to whether or not a taxpayer's suit should be entertained. C.Unavoidability of constitutional question. Again upon the authority of People vs. Vera, "it is a well-settled ruled that the constitutionality of an act of the legislature will not be determined by the courts unless that question is properly raised an presented in appropriate cases and is necessary to a determination of the case; i.e., the issue of constitutionality must be the very lis mota presented."

We have already stated that, by the standards set forth in People vs. Vera, the present is not an "appropriate case" for either petitioner Dumlao or for petitioners Igot and Salapantan. They are actually without cause of action. It follows that the necessity for resolving the issue of constitutionality is absent, and procedural regularity would require that his suit be dismissed. II.The substantive viewpoint. We have resolved, however, to rule squarely on two of the challenged provisions, the Courts not being entirely without discretion in the matter. Thus, adherence to the strict procedural standard was relaxed in Tinio vs. Mina (26 SCRA 512 [1968]); Edu vs. Ericta (35 SCRA 481 [1970]); and in Gonzalez vs. Comelec (27 SCRA 835 [1969]), the Opinion in the Tinio and Gonzales cases having been penned by our present Chief Justice. The reasons which have impelled us are the paramount public interest involved and the proximity of the elections which will be held only a few days hence. Petitioner Dumlao's contention that section 4 of BP Blg. 52 is discriminatory against him personally is belied by the fact that several petitions for the disqualification of other candidates for local positions based on the challenged provision have already been filed with the COMELEC (as listed in p. 15, respondent's Comment). This tellingly overthrows Dumlao's contention of intentional or purposeful discrimination.
LexLib

The assertion that Section 4 of BP Blg. 52 is contrary to the safeguard of equal protection is neither well taken. The constitutional guarantee of equal protection of the laws is subject to rational classification. If the groupings are based on reasonable and real differentiations, one class can be treated and regulated differently from another class. For purposes of public service, employees 65 years of age, have been validly classified differently from younger employees. Employees attaining that age are subject to compulsory retirement, while those of younger ages are not so compulsorily retirable. In respect of election to provincial, city, or municipal positions, to require that candidates should not be more than 65 years of age at the time they assume office, if applicable to everyone, might or might not be a reasonable classification although, as the Solicitor General has intimated, a good policy of the law should be to promote the emergence of younger blood in our political elective echelons. On the other hand, it might be that persons more than 65 years old may also be good elective local officials. Coming now to the case of retirees. Retirement from government service may or may not be a reasonable disqualification for elective local officials. For one thing, there can also be retirees from government service at ages, say below 65. It may neither be reasonable to disqualify retirees, aged 65, for a 65-year old retiree could be a good local official just like one, aged 65, who is not a retiree.

But, in the case of a 65-year old elective local official, who has retired from a provincial, city or municipal office, there is reason to disqualify him from running for the same office from which he had retired, as provided for in the challenged provision. The need for new blood assumes relevance. The tiredness of the retiree for government work is present, and what is emphatically significant is that the retired employee has already declared himself tired an unavailable for the same government work, but, which, by virtue of a change of mind, he would like to assume again. It is for the very reason that inequality will neither result from the application of the challenged provision. Just as that provision does not deny equal protection, neither does it permit such denial (see People vs. Vera, 65 Phil. 56 [1933]). Persons similarly situated are similarly treated. In fine, it bears reiteration that the equal protection clause does not forbid all legal classification. What is proscribes is a classification which is arbitrary and unreasonable. That constitutional guarantee is not violated by a reasonable classification is germane to the purpose of the law and applies to all those belonging to the same class (Peralta vs. Comelec, 82 SCRA 30 [1978] citing Felwa vs. Salas, 18 SCRA 606 [1966]; Rafael v. Embroidery and Apparel Control and Inspection Board, 21 SCRA 336 [1967]; Inchong, etc., et al. vs. Hernandez, 101 Phil. 1155 [1957]). The purpose of the law is to allow the emergence of younger blood in local governments. The classification in question being pursuant to that purpose, it cannot be considered invalid "even if at times, it may be susceptible to the objection that it is marred by theoretical inconsistencies: (Chief Justice Fernando, The Constitution of the Philippines, 1977 ed., p. 547). There is an additional consideration. Absent herein is a showing of the clear invalidity of the questioned provision. Well accepted is the rule that to justify the nullification of a law, there must be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal breach. Courts are practically unanimous in the pronouncement that laws shall not be declared invalid unless the conflict with the Constitution is clear beyond reasonable doubt (Peralta vs. COMELEC, 82 SCRA 55 [1978], citing Cooper vs. Telfair, 4 Dall. 14; Dodd, Cases on Constitutional Law, 3rd ed. 1942, 56). Lastly, it is within the competence of the legislature to prescribe qualifications for one who desires to become a candidate for office provided they are reasonable, as in this case. In so far as the petition of Igot and Salapantan are concerned, the second paragraph of section 4 of Batas Pambansa Blg. 52, quoted in full earlier, and which they challenged, may be divided in two parts. The first provides:
"ajudgment of conviction for any of the aforementioned crimes shall be conclusive evidence of such fact. . . . "

The supremacy of the Constitution stands out as the cardinal principle. We are aware of the presumption of validity that attached to a challenged statute, of the well-settled principle that "all reasonable doubts should be resolved in favor of constitutionality," and

that Courts will not set aside a statute as constitutionally defective "except in a clear case." (People vs. Vera, supra). We are constrained to hold that this in one such clear case.
Cdphil

Explicit is the constitutional provision that, in all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel (Article IV, section 19, 1973 Constitution). An accusation, according to the fundamental law, is not synonymous with guilt. The challenged proviso contravenes the constitutional presumption of innocence, as a candidate is disqualified from running from public office on the ground alone that charges have been filed against him before a civil or military tribunal. It condemns before one is fully heard. In ultimate effect, except as to the degree of proof, no distinction is made between a person convicted of acts of disloyalty and one against whom charges have been filed for such acts, as both of them would be ineligible to run for public office. A person disqualified to run for public office on the ground that charges have been filed against him is virtually placed in the same category as a person already convicted of a crime with the penalty of arresto, which carries with it the accessory penalty of suspension of the right to hold office during the term of the sentence (Art. 44, Revised Penal Code). And although the filing of charges is considered as but prima facie evidence, and therefore, may be rebutted, yet, there is "clear and present danger" that because the proximity of the elections, time constraints will prevent one charged with acts of disloyalty from offering contrary proof to overcome the prima facie evidence against him. Additionally, it is best that evidence pro and con of acts of disloyalty be aired before the Courts rather than before an administrative body such as the COMELEC. A highly possible conflict of finding between two government bodies, to the extreme detriment of a person charged, will thereby be avoided. Furthermore, a legislative/administrative determination of guilt should not be allowed to be substituted for a judicial determination.

Being infected with constitutional infirmity, a partial declaration of nullity of only that objectionable portion is mandated. It is separable from the first portion of the second paragraph of section 4 of Batas Pambansa Blg. 52 which can stand by itself. WHEREFORE, 1) the first paragraph of section 4 of Batas Pambansa Bilang 52 is hereby declared valid. Said paragraph reads:
"SEC. 4.Special disqualification. In addition to violation of Section 10 of Article XII(C) of the Constitution and disqualifications mentioned in existing laws which are hereby declared as disqualifications for any of the elective officials enumerated in Section 1 hereof, any retired elective provincial, city or

municipal official, who has received payment of the retirement benefits to which he is entitled under the law and who shall have been 65 years of age at the commencement of the term of office to which he seeks to be elected, shall not be qualified to run for the same elective local office from which he has retired."

2)That portion of the second paragraph of section 4 of Batas Pambansa Bilang 52 providing that ". . . the filing of charges for the commission of such crimes before a civil court or military tribunal after preliminary investigation shall be prima facie evidence of such fact", is hereby declared null and void, for being violative of the constitutional presumption of innocence guaranteed to an accused. SO ORDERED.

EN BANC
[G.R. No. 147780. May 10, 2001.] PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO, petitioners, vs. SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents. [G.R. No. 147781. May 10, 2001.] MIRIAM DEFENSOR-SANTIAGO, petitioner, vs. ANGELO REYES, SECRETARY OF NATIONAL DEFENSE, ET AL., respondents. [G.R. No. 147799. May 10, 2001.] RONALDO A. LUMBAO, petitioner, vs. SECRETARY HERNANDO PEREZ, GENERAL DIOMEDIO VILLANUEVA, P/DIR. LEANDRO MENDOZA and P/SR. SUPT. REYNALDO BERROYA, respondents. [G.R. No. 147810. May 10, 2001.] THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner, vs. THE DEPARTMENT OF JUSTICE, SECRETARY HERNANDO PEREZ, THE ARMED FORCES OF THE PHILIPPINES, GENERAL DIOMEDIO VILLANUEVA, THE PHILIPPINE NATIONAL POLICE, and DIRECTOR GENERAL LEANDRO MENDOZA, respondents.

RESOLUTION

MELO, J :
p

On May 1, 2001, President Macapagal-Arroyo, faced by an "angry and violent mob armed with explosives, firearms, bladed weapons, clubs, stones and other deadly weapons" assaulting and attempting to break into Malacaang, issued Proclamation No.

38 declaring that there was a state of rebellion in the National Capital Region. She likewise issued General Order No. 1 directing the Armed Forces of the Philippines and the Philippine National Police to suppress the rebellion in the National Capital Region. Warrantless arrests of several alleged leaders and promoters of the "rebellion" were thereafter effected.
TaEIcS

Aggrieved by the warrantless arrests, and the declaration of a "state of rebellion," which allegedly gave a semblance of legality to the arrests, the following four related petitions were filed before the Court (1)G.R. No. 147780 for prohibition, injunction, mandamus, and habeas corpus (with an urgent application for the issuance of temporary restraining order and/or writ of preliminary injunction) filed by Panfilo M. Lacson, Michael Ray B. Aquino, and Cezar O. Mancao; (2) G.R. No. 147781 for mandamus and/or review of the factual basis for the suspension of the privilege of the writ of habeas corpus, with prayer for a temporary restraining order filed by Miriam Defensor-Santiago; (3) G.R. No. 147799 for prohibition and injunction with prayer for a writ of preliminary injunction and/or restraining order filed by Ronaldo A. Lumbao; and (4) G.R. No. 147810 for certiorari and prohibition filed by the political party Laban ng Demokratikong Pilipino. All the foregoing petitions assail the declaration of a state of rebellion by President Gloria Macapagal-Arroyo and the warrantless arrests allegedly effected by virtue thereof, as having no basis both in fact and in law. Significantly, on May 6, 2001, President Macapagal-Arroyo ordered the lifting of the declaration of a "state of rebellion" in Metro Manila. Accordingly, the instant petitions have been rendered moot and academic. As to petitioners' claim that the proclamation of a "state of rebellion" is being used by the authorities to justify warrantless arrests, the Secretary of Justice denies that it has issued a particular order to arrest specific persons in connection with the "rebellion." He states that what is extant are general instructions to law enforcement officers and military agencies to implement Proclamation No. 38. Indeed, as stated in respondents' Joint Comments:
[I]t is already the declared intention of the Justice Department and police authorities to obtain regular warrants of arrests from the courts for all acts committed prior to and until May 1, 2001 which means that preliminary investigations will henceforth be conducted. (Comment, G.R. No. 147780, p. 28; G.R. No. 147781, p. 18; G.R. No. 147799, p. 16; G.R. No. 147810, p. 24)

With this declaration, petitioners' apprehensions as to warrantless arrests should be laid to rest.

In quelling or suppressing the rebellion, the authorities may only resort to warrantless arrests of persons suspected of rebellion, as provided under Section 5, Rule 113 of the Rules of Court, if the circumstances so warrant. The warrantless arrest feared by petitioners is, thus, not based on the declaration of a "state of rebellion." Moreover, petitioners' contention in G.R. No. 147780 (Lacson Petition), 147781 (Defensor-Santiago Petition), and 147799 (Lumbao Petition) that they are under imminent danger of being arrested without warrant do not justify their resort to the extraordinary remedies of mandamus and prohibition, since an individual subjected to warrantless arrest is not without adequate remedies in the ordinary course of law. Such an individual may ask for a preliminary investigation under Rule 112 of the Rules of Court, where he may adduce evidence in his defense, or he may submit himself to inquest proceedings to determine whether or not he should remain under custody and correspondingly be charged in court. Further, a person subject of a warrantless arrest must be delivered to the proper judicial authorities within the periods provided in Article 125 of the Revised Penal Code, otherwise the arresting officer could be held liable for delay in the delivery of detained persons. Should the detention be without legal ground, the person arrested can charge the arresting officer with arbitrary detention. All this is without prejudice to his filing an action for damages against the arresting officer under Article 32 of the Civil Code. Verily, petitioners have a surfeit of other remedies which they can avail themselves of, thereby making the prayer for prohibition and mandamus improper at this time (Sections 2 and 3, Rule 65, Rules of Court). Aside from the foregoing reasons, several considerations likewise inevitably call for the dismissal of the petitions at bar.
CAScIH

G.R. No. 147780 In connection with their alleged impending warrantless arrest, petitioners Lacson, Aquino, and Mancao pray that the "appropriate court before whom the informations against petitioners are filed be directed to desist from arraigning and proceeding with the trial of the case, until the instant petition is finally resolved." This relief is clearly premature considering that as of this date, no complaints or charges have been filed against any of the petitioners for any crime. And in the event that the same are later filed, this Court cannot enjoin criminal prosecution conducted in accordance with the Rules of Court, for by that time any arrest would have been in pursuance of a duly issued warrant. As regards petitioners' prayer that the hold departure orders issued against them be declared null and void ab initio, it is to be noted that petitioners are not directly assailing the validity of the subject hold departure orders in their petition. They are not even expressing intention to leave the country in the near future. The prayer to set aside the same must be made in proper proceedings initiated for that purpose.

Anent petitioners' allegations ex abundante ad cautelam in support of their application for the issuance of a writ of habeas corpus, it is manifest that the writ is not called for since its purpose is to relieve petitioners from unlawful restraint (Ngaya-an v. Balweg, 200 SCRA 149 [1991]), a matter which remains speculative up to this very day. G.R. No. 147781 The petition herein is denominated by petitioner Defensor-Santiago as one for mandamus. It is basic in matters relating to petitions for mandamus that the legal right of the petitioner to the performance of a particular act which is sought to be compelled must be clear and complete. Mandamus will not issue unless the right to relief is clear at the time of the award (Palileo v. Ruiz Castro, 85 Phil. 272). Up to the present time, petitioner Defensor-Santiago has not shown that she is in imminent danger of being arrested without a warrant. In point of fact, the authorities have categorically stated that petitioner will not be arrested without a warrant. G.R. No. 147799 Petitioner Lumbao, leader of the People's Movement against Poverty (PMAP), for his part, argues that the declaration of a "state of rebellion" is violative of the doctrine of separation of powers, being an encroachment on the domain of the judiciary which has the constitutional prerogative to "determine or interpret" what took place on May 1, 2001, and that the declaration of a state of rebellion cannot be an exception to the general rule on the allocation of the governmental powers. We disagree. To be sure, Section 18, Article VII of the Constitution expressly provides that "[t]he President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion . . ." Thus, we held in Integrated Bar of the Philippines v. Hon. Zamora, (G.R. No. 141284, August 15, 2000):
. . . The factual necessity of calling out the armed forces is not easily quantifiable and cannot be objectively established since matters considered for satisfying the same is a combination of several factors which are not always accessible to the courts. Besides the absence of textual standards that the court may use to judge necessity, information necessary to arrive at such judgment might also prove unmanageable for the courts. Certain pertinent information might be difficult to verify, or wholly unavailable to the courts. In many instances, the evidence upon which the President might decide that there is a need to call out the armed forces may be of a nature not constituting technical proof. On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather information, some of which may be classified as highly

confidential or affecting the security of the state. In the exercise of the power to call, on-the-spot decisions may be imperatively necessary in emergency situations to avert great loss of human lives and mass destruction of property. . . . (at pp. 22-23)

The Court, in a proper case, may look into the sufficiency of the factual basis of the exercise of this power. However, this is no longer feasible at this time, Proclamation No. 38 having been lifted.

G.R. No. 147810 Petitioner Laban ng Demokratikong Pilipino is not a real party-in-interest. The rule requires that a party must show a personal stake in the outcome of the case or an injury to himself that can be redressed by a favorable decision so as to warrant an invocation of the court's jurisdiction and to justify the exercise of the court's remedial powers in his behalf (KMU Labor Center v. Garcia, Jr., 239 SCRA 386 [1994]). Here, petitioner has not demonstrated any injury to itself which would justify resort to the Court. Petitioner is a juridical person not subject to arrest. Thus, it cannot claim to be threatened by a warrantless arrest. Nor is it alleged that its leaders, members, and supporters are being threatened with warrantless arrest and detention for the crime of rebellion. Every action must be brought in the name of the party whose legal right has been invaded or infringed, or whose legal right is under imminent threat of invasion or infringement.
HITAEC

At best, the instant petition may be considered as an action for declaratory relief, petitioner claiming that its right to freedom of expression and freedom of assembly is affected by the declaration of a "state of rebellion" and that said proclamation is invalid for being contrary to the Constitution. However, to consider the petition as one for declaratory relief affords little comfort to petitioner, this Court not having jurisdiction in the first instance over such a petition. Section 5[1], Article VIII of the Constitution limits the original jurisdiction of the Court to cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. WHEREFORE, premises considered, the petitions are hereby DISMISSED. However, in G.R. No. 147780, 147781, and 147799, respondents, consistent and congruent with their undertaking earlier adverted to, together with their agents, representatives, and all persons acting for and in their behalf, are hereby enjoined from arresting petitioners therein without the required judicial warrant for all acts committed in relation to or in connection with the May 1, 2001 siege of Malacaang.

SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban and Gonzaga-Reyes, JJ., concur. Quisumbing, Buena, Ynares-Santiago and De Leon, Jr., JJ., are on leave. Vitug, J., please see separate opinion. Kapunan and Sandoval-Gutierrez, JJ., see dissenting opinion. Panganiban, J., join the dissent of J. Kapunan.

Separate Opinions
VITUG, J.: I concur insofar as the resolution enjoins any continued warrantless arrests for acts related to, or connected with, the May 1st incident but respectfully dissent from the order of dismissal of the petitions for being said to be moot and academic. The petitions have raised important constitutional issues that, in my view, must likewise be fully addressed. KAPUNAN, J., dissenting: The right against unreasonable searches and seizure has been characterized as belonging "in the catalog of indispensable freedoms."
Among deprivation of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police. 1

Invoking the right against unreasonable searches and seizures, petitioners Panfilo Lacson, Michael Ray Aquino and Cezar O. Mancao II now seek a temporary restraining order and/or injunction from the Court against their impending warrantless arrests upon the order of the Secretary of Justice. 2 Petitioner Laban ng Demokratikong Pilipino (LDP), likewise, seeks to enjoin the arrests of its senatorial candidates, namely, Senator Juan Ponce-Enrile, Senator Miriam Defensor-Santiago, Senator Gregorio B. Honasan and General Panfilo Lacson. 3 Separate petitioners were also filed by Senator Juan Ponce

Enrile, 4 Former Ambassador Ernesto M. Maceda, 5 Senator Miriam Defensor-Santiago, 6 Senator Gregorio B. Honasan, 7 and the Integrated Bar of the Philippines (IBP). 8 Briefly, the order for the arrests of these political opposition leaders and police officers stems from the following facts: On April 25, 2001, former President Joseph Estrada was arrested upon the warrant issued by the Sandiganbayan in connection with the criminal case for plunder filed against him. Several hundreds of policemen were deployed to effect his arrest. At the time, a number of Mr. Estrada's supporters, who were then holding camp outside his residence in Greenhills Subdivision, sought to prevent his arrest. A skirmish ensued between them and the police. The police had to employ batons and water hoses to control the rock-throwing pro-Estrada rallyists and allow the sheriffs to serve the warrant. Mr. Estrada and his son and co-accused, Mayor Jinggoy Estrada, were then brought to Camp Crame where, with full media coverage, their fingerprints were obtained and their mug shots taken. Later that day, and on the succeeding days, a huge gathered at the EDSA Shrine to show its support for the deposed President. Senators Enrile, Santiago, Honasan, opposition senatorial candidates including petitioner Lacson, as well as other political personalities, spoke before the crowd during these rallies. In the meantime, on April 28, 2001, Mr. Estrada and his son were brought to the Veterans Memorial Medical Center for a medical check-up. It was announced that from there, they would be transferred to Fort Sto. Domingo in Sta. Rosa, Laguna. In the early morning of May 1, 2001, the crowd at EDSA decided to march to Malacaang Palace. The Armed Forces of the Philippines (AFP) was called to reinforce the Philippine National Police (PNP) to guard the premises of the presidential residence. The marchers were able to penetrate the barricades put up by the police at various points leading to Mendiola and were able to reach Gate 7 of Malacaang. As they were being dispersed with warning shots, tear gas and water canons, the rallyists hurled stones at the police authorities. A melee erupted. Scores of people, including some policemen, were hurt. At noon of the same day, after the crowd in Mendiola had been dispersed, President Gloria Macapagal-Arroyo issued Proclamation No. 38 declaring a "state of rebellion" in Metro Manila:
Presidential Proclamation No. 38 DECLARING STATE OF REBELLION IN THE NATIONAL CAPITAL REGION

WHEREAS, the angry and violent mob, armed with explosives, firearms, bladed weapons, clubs, stones and other deadly weapons, in great part coming from the mass gathering at the EDSA Shrine, and other armed groups, having been agitated and incited and, acting upon the instigation and under the command and direction of known and unknown leaders, have and continue to assault and attempt to break into Malacaang with the avowed purpose of overthrowing the duly constituted Government and forcibly seize power, and have and continue to rise publicly, shown open hostility, and take up arms against the duly constituted Government for the purpose of removing from the allegiance to the Government certain bodies of the Armed Forces of the Philippines and the Philippine National Police, and to deprive the President of the Republic of the Philippines, wholly and partially, of her powers and prerogatives which constitute the continuing crime of rebellion punishable under Article 134 of the Revised Penal Code;
cIADaC

WHEREAS, armed groups recruited by known and unknown leaders, conspirators, and plotters have continue (sic) to rise publicly by the use of arms to overthrow the duly constituted Government and seize political power; WHEREAS, under Article VII, Section 18 of the Constitution, whenever necessary, the President as the Commander-in-Chief of all armed forces of the Philippines, may call out such armed forces to suppress the rebellion; NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me by law hereby recognize and confirm the existence of an actual and on-going rebellion compelling me to declare a state of rebellion; In view of the foregoing, I am issuing General Order No. 1 in accordance with Section 18, Article VII of the Constitution calling upon the Armed Forces of the Philippines and the Philippine National police to suppress and quell the rebellion. City of Manila, May 1, 2001.

The President likewise issued General Order No. 1 which reads:

GENERAL ORDER NO. 1 DIRECTING THE ARMED FORCES OF THE PHILIPPINES AND THE PHILIPPINE NATIONAL POLICE TO SUPPRESS THE REBELLION IN THE NATIONAL CAPITAL REGION WHEREAS, the angry and violent mob, armed with explosives, firearms, bladed weapons, clubs, stones and other deadly weapons, in great part coming from the mass gathering at the EDSA Shrine, and other armed groups, having been agitated and incited and, acting upon the instigation and under the

command and direction of known and unknown leaders, have and continue to assault and attempt to break into Malacaang with the avowed purpose of overthrowing the duly constituted Government and forcibly seize political power, and have and continue to rise publicly, show open hostility, and take up arms against the duly constituted Government certain bodies of the Armed Forces of the Philippines and the Philippine National Police, and to deprive the President of the Republic of the Philippines, wholly and partially, of her powers and prerogatives which constitute the continuing crime of rebellion punishable under Article 134 of the Revised Penal Code; WHEREAS, armed groups recruited by known and unknown leaders, conspirators, and plotters have continue (sic) to rise publicly by the use of arms to overthrow the duly constituted Government and seize political power;

WHEREAS, under Article VII, Section 18 of the Constitution, whenever necessary, the President as the Commander-in-Chief of all armed forces of the Philippines, may call out such armed forces to suppress the rebellion;
DHIaTS

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under the Constitution as President of the Republic of the Philippines and Commander-in-Chief of all armed forces of the Philippines and pursuant to Proclamation No. 38, dated May 1, 2001, do hereby call upon the Armed Forces of the Philippines and the Philippine national police to suppress and quell the rebellion. I hereby direct the Chief of Staff of the Armed Forces of the Philippines and the Chief of the Philippine National Police and the officers and men of the Armed Forces of the Philippines and the Philippine National Police to immediately carry out the necessary and appropriate actions and measures to suppress and quell the rebellion with due regard to constitutional rights. City of Manila, May 1, 2001.

Pursuant to the proclamation, several key leaders of the opposition were ordered arrested. Senator Enrile was arrested without warrant in his residence at around 4:00 in the afternoon. Likewise arrested without warrant the following day was former Ambassador Ernesto Maceda. Senator Honasan and Gen. Lacson were also ordered arrested but the authorities have so far failed to apprehend them. Ambassador Maceda was temporarily released upon recognizance while Senator Ponce Enrile was ordered released by the Court on cash bond. The basic issue raised by the consolidated petitions is whether the arrest or impending arrest without warrant, pursuant to a declaration of "state of rebellion" by the President of the above-mentioned persons and unnamed other persons similarly situated suspected of

having committed rebellion is illegal, being unquestionably a deprivation of liberty and violative of the Bill of Rights under the Constitution. The declaration of a "state of rebellion" is supposedly based on Section 18, Article VII of the Constitution which reads:
The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.
ECaSIT

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.

Section 18 grants the President, as Commander-in-Chief, the power to call out the armed forces in cases of (1) lawless violence, (2) rebellion and (3) invasion. 9 In the latter two cases, i.e., rebellion or invasion, the President may, when public safety requires, also (a)

suspend the privilege of the writ of habeas corpus, or (b) place the Philippines or any part thereof under martial law. However, in the exercise of this calling out power as Commander-in-Chief of the armed forces, the Constitution does not require the President to make a declaration of a "state of rebellion" (or, for that matter, of lawless violence or invasion). The term "state of rebellion" has no legal significance. It is vague and amorphous and does not give the President more power than what the Constitution says, i. e, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. As Justice Mendoza observed during the hearing of this case, such a declaration is "legal surplusage." But whatever the term means, it cannot diminish or violate constitutionally-protected rights, such as the right to due process, 10 the rights to free speech and peaceful assembly to petition the government for redress of grievances, 11 and the right against unreasonable searches and seizures, 12 among others. In Integrated Bar of the Philippines vs. Zamora, et al., 13 the Court held that:
. . . [T]he distinction (between the calling out power, on one hand, and the power to suspend the privilege of the write of habeas corpus and to declare martial law, on the other hand) places the calling out power in a different category from the power to declare martial law and the power to suspend the privilege of the writ of habeas corpus, otherwise, the framers of the Constitution would have simply lumped together the three powers and provided for their revocation and review without any qualification. Expressio unius est exclusio alterius. xxx xxx xxx The reason for the difference in the treatment of the aforementioned powers highlights the intent to grant the President the widest leeway and broadest discretion in using the "calling out" power because it is considered as the lesser and more benign power compared to the power to suspend the privilege of the writ of habeas corpus and the power to impose martial law, both of which involve the curtailment and suppression of certain basic civil rights and individual freedoms, and thus necessitating affirmation by Congress and, in appropriate cases, review by this Court.

On the other hand, if the motive behind the declaration of a "state of rebellion" is to arrest persons without warrant and detain them without bail and, thus, skirt the Constitutional safeguards for the citizens' civil liberties, the so called "state of rebellion" partakes the nature of martial law without declaring it as such. It is a truism that a law or rule may itself be fair or innocuous on its face, yet, if it is applied and administered by public authority with an evil eye so as to practically make it unjust and oppressive, it is within the prohibition of the Constitution. 14 In an ironic sense, a "state of rebellion" declared as a subterfuge to effect warrantless arrest and detention for an unbailable offense places a

heavier burden on the people's civil liberties than the suspension of the privilege of the writ of habeas corpus and the declaration of martial law because in the latter case, builtin safeguards are automatically set on motion: (1) The period for martial law or suspension is limited to a period not exceeding sixty day; (2) The President is mandated to submit a report to Congress within forty-eight hours from the proclamation or suspension; (3) The proclamation or suspension is subject to review by Congress, which may revoke such proclamation or suspension. If Congress is not in session, it shall convene in 24 hours without need for call; and (4) The sufficiency of the factual basis thereof or its extension is subject to review by the Supreme Court in an appropriate proceeding. 15 No right is more fundamental than the right to life and liberty. Without these rights, all other individual rights may not exist. Thus, the very first section in our Constitution's Bill of Rights, Article III, reads:
SECTION 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

And to assure the fullest protection of the right, more especially against government impairment, Section 2 thereof provides:
SECTION 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.
TIEHSA

Indeed, there is nothing in Section 18 which authorizes the President or any person acting under her direction to make unwarranted arrests. The existence of "lawless violence, invasion or rebellion" only authorizes the President to call out the "armed forces to prevent or suppress lawless violence, invasion or rebellion." Not even the suspension of the privilege of the writ of habeas corpus or the declaration of martial law authorizes the President to order the arrest of any person. The only significant consequence of the suspension of the writ of habeas corpus is to divest the courts of the power to issue the writ whereby the detention of the person is put in issue. It does not by itself authorize the President to order the arrest of a person. And even then, the Constitution in Section 18, Article VII makes the following qualifications:

The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.

In the instant case, the President did not suspend the writ of habeas corpus. Nor did she declare martial law. A declaration of a "state of rebellion," at most, only gives notice to the nation that it exists, and that the armed forces may be called to prevent or suppress it, as in fact she did. Such declaration does not justify any deviation from the Constitutional proscription against unreasonable searches and seizures. As a general rule, an arrest may be made only upon a warrant issued by a court. In very circumscribed instances, however, the Rules of Court allow warrantless arrests. Section 5, Rule 113 provides:
SECTION 5. Arrest without warrant; when lawful. A police officer or a private person may, without a warrant, arrest a person: (a)When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b)When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and xxx xxx xxx In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112.

It must be noted that the above are exceptions to the constitutional norm enshrined in the Bill of Rights that a person may only be arrested on the strength of a warrant of arrest issued by a "judge" after determining "personally" the existence of "probable cause" after examination under oath or affirmation of the complainant and the witnesses he may produce. Its requirements should, therefore, be scrupulously met:
The right of a person to be secure against any unreasonable seizure of his body and any deprivation of his liberty is a most basic and fundamental one. The statute or rule which allows exceptions to the requirement of warrants of arrests is strictly construed. Any exception must clearly fall within the situations when securing a warrant would be absurd or is manifestly unnecessary as provided by the Rule. We cannot liberally construe the rule on arrests without warrant or

extend its application beyond the cases specifically provided by law. To do so would infringe upon personal liberty and set back a basic right so often violated and so deserving of full protection. 16

A warrantless arrest may be justified only if the police officer had facts and circumstances before him which, had they been before a judge, would constitute adequate basis for a finding of probable cause of the commission of an offense and that the person arrested is probably guilty of committing the offense. That is why the Rules of Criminal Procedure require that when arrested, the person "arrested has committed, is actually committing, or is attempting to commit an offense" in the presence of the arresting officer. Or if it be a case of an offense which had "just been committed," that the police officer making the arrest "has personal knowledge of facts or circumstances that the person to be arrested has committed it." Petitioners were arrested or sought to be arrested without warrant for acts of rebellion ostensibly under Section 5 of Rule 113. Respondents' theory is based on Umil vs. Ramos, 17 where this Court held:
The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof or in connection therewith constitute direct assault against the State and are in the nature of continuing crimes. 18

Following this theory, it is argued that under Section 5(a), a person who "has committed, is actually committing, or is attempting to commit" rebellion and may be arrested without a warrant at any time so long as the rebellion persists. Reliance on Umil is misplaced. The warrantless arrests therein, although effected a day or days after the commission of the violent acts of petitioners therein, were upheld by the Court because at the time of their respective arrests, they were members of organizations such as the Communist Party of the Philippines, the New Peoples Army and the National United Front Commission, then outlawed groups under the Anti-Subversion Act. Their mere membership in said illegal organizations amounted to committing the offense of subversion 19 which justified their arrests without warrants. In contrast, it has not been alleged that the persons to be arrested for their alleged participation in the "rebellion" on May 1, 2001 are members of an outlawed organization intending to overthrow the government. Therefore, to justify a warrantless arrest under Section 5(a), there must be a showing that the persons arrested or to be arrested has committed, is actually committing or is attempting to commit the offense of rebellion. 20 In other words, there must be an overt act constitutive of rebellion taking place in the presence of the arresting officer. In United States vs. Samonte, 21 the term" in his [the arresting officer's] presence" was defined thus:

An offense is said to be committed in the presence or within the view of an arresting officer or private citizen when such officer or person sees the offense, even though at a distance, or hears the disturbance created thereby and proceeds at once to the scene thereof; or the offense is continuing, or has not been consummated, at the time the arrest is made. 22

This requirement was not complied with particularly in the arrest of Senator Enrile. In the Court's Resolution of May 5, 2001 in the petition for habeas corpus filed by Senator Enrile, the Court noted that the sworn statements of the policemen who purportedly arrested him were hearsay. 23 Senator Enrile was arrested two (2) days after he delivered allegedly seditious speeches. Consequently, his arrest without warrant cannot be justified under Section 5(b) which states that an arrest without a warrant is lawful when made after an offense has just been committed and the arresting officer or private person has probable cause to believe based on personal knowledge of facts and circumstances that the person arrested has committed the offense. At this point, it must be stressed that apart from being inapplicable to the cases at bar, Umil is not without any strong dissents. It merely re-affirmed Garcia-Padilla vs. Enrile, 24 a case decided during the Marcos martial law regime. 25 It cannot apply when the country is supposed to be under the regime of freedom and democracy. The separate opinions of the following Justices in the motion for reconsideration of said case 26 are apropos:
FERNAN, C.J., concurring and dissenting: Secondly, warrantless arrests may not be allowed if the arresting officers are not sure what particular provision of law had been violated by the person arrested. True it is that law enforcement agents and even prosecutors are not all adept at the law. However, erroneous perception, not to mention ineptitude among their ranks, especially if it would result in the violation of any right of a person, may not be tolerated. That the arrested person has the "right to insist during the pre-trial or trial on the merits" (Resolution, p. 18) that he was exercising a right which the arresting officer considered as contrary to law, is beside the point. No person should be subjected to the ordeal of a trial just because the law enforcers wrongly perceived his action. 27 (Emphasis supplied) GUTIERREZ, JR., J., concurring and dissenting opinion Insofar as G.R. No. 81567 is concerned, I join the other dissenting Justices in their observations regarding "continuing offenses." To base warrantless arrests on the doctrine of continuing offense is to give a license for the illegal detention of persons on pure suspicion. Rebellion, insurrection, or sedition are political offenses where the line between overt acts and simple advocacy or adherence to a belief is extremely thin. If a court has convicted an accused of rebellion and he is found roaming around, he may be arrested. But until a person is proved

guilty, I fail to see how anybody can jump to a personal conclusion that the suspect is indeed a rebel and must be picked up on sight whenever seen. The grant of authority in the majority opinion is too broad. If warrantless searches are to be validated, it should be Congress and not this Court which should draw strict and narrow standards. Otherwise, the non-rebels who are critical, noisy, or obnoxious will be indiscriminately lumped up with those actually taking up arms against the Government. The belief of law enforcement authorities, no matter how well-grounded on past events, that the petitioner would probably shoot other policemen whom he may meet does not validate warrantless arrests. I cannot understand why the authorities preferred to bide their time. await the petitioner's surfacing from underground, and ounce on him with no legal authority instead of securing warrants of arrest for his apprehension. 28 (Underscoring supplied) CRUZ, J., concurring and dissenting: I submit that the affirmation by this Court of the Garcia-Padilla decision to justify the illegal arrests made in the cases before us is a step back to that shameful past when individual rights were wantonly and systematically violated by the Marcos dictatorship. It seems some of us have short memories of that repressive regime, but I for one am not one to forget so soon. As the ultimate defender of the Constitution, this Court should not gloss over the abuses of those who, out of mistaken zeal, would violate individual liberty in the dubious name of national security. Whatever their ideology and even if it be hostile to ours, the petitioners are entitled to the protection of the Bill of Rights, no more and no less than any other person in this country. That is what democracy is all about. 29 (Underscoring supplied)

FELICIANO, J., concurring and dissenting: 12.My final submission, is that, the doctrine of "continuing crimes," which has its own legitimate function to serve in our criminal law jurisprudence, cannot be invoked for weakening and dissolving the constitutional guarantee against warrantless arrest. Where no overt acts comprising all or some of the elements of the offense charged are shown to have been committed by the person arrested without warrant, the "continuing crime" doctrine should not be used to dress up the pretense that a crime, begun or committed elsewhere, continued to be committed by the person arrested in the presence of the arresting officer. The capacity for mischief of such a utilization of the "continuing crimes" doctrine, is infinitely increased where the crime charged does not consist of unambiguous criminal acts with a definite beginning and end in time and space (such as the killing or wounding of a person or kidnapping and illegal detention or arson) but rather of such problematic offenses as membership in or affiliation with or becoming a member of, a subversive association or organization. For in such

cases, the overt constitutive acts may be morally neutral in themselves, and the unlawfulness of the acts a function of the aims or objectives of the organization involved. Note, for instance, the following acts which constitute prima facie evidence of "membership in any subversive association:"
ESDcIA

a)Allowing himself to be listed as a member in any book or any of the lists, records, correspondence, or any other document of the organization; b)Subjecting himself to the discipline of such or association or organization in any form whatsoever; c)Giving financial contribution to such association or organization in dues, assessments, loans or in any other forms; xxx xxx xxx f)Conferring with officers or other members of such association or organization in furtherance of any plan or enterprise thereof ; xxx xxx xxx g)Preparing documents, pamphlets, leaflets, books, or any other type of publication to promote the objectives and purposes of such association or organization; xxx xxx xxx k)Participating in any way in the activities, planning action, objectives, or purposes of such association or organization. It may well be, as the majority implies, that the constitutional rule against warrantless arrests and seizures makes the law enforcement work of police agencies more difficult to carry out. It is not our Court's function, however, and the Bill of Rights was not designed, to make life easy for police forces but rather to protect the liberties of private individuals. Our police forces must simply learn to live with the requirements of the Bill of Rights, to enforce the law by modalities which themselves comply with the fundamental law. Otherwise they are very likely to destroy, whether through sheer ineptness or excess of zeal, the very freedoms which make our policy worth protecting and saving. 30 (Underscoring supplied)

It is observed that a sufficient period has lapsed between the fateful day of May 1, 2001 up to the present. If respondents have ample evidence against petitioners, then they should forthwith file the necessary criminal complaints in order that the regular procedure can be followed and the warrants of arrest issued by the courts in the normal course. When practicable, resort to the warrant process is always to be preferred because "it

interposes an orderly procedure involving 'judicial impartiality' whereby a neutral and detached magistrate can make informed and deliberate determination on the issue of probable cause." 31 The neutrality, detachment and independence that judges are supposed to possess is precisely the reason the framers of the 1987 Constitution have reposed upon them alone the power to issue warrants of arrest. To vest the same to a branch of government, which is also charged with prosecutorial powers, would make such branch the accused's adversary and accuser, his judge and jury. 32 A declaration of a state of rebellion does not relieve the State of its burden of proving probable cause. The declaration does not constitute a substitute for proof. It does not in any way bind the courts, which must still judge for itself the existence of probable cause. Under Section 18, Article VII, the determination of the existence of a state of rebellion for purposes of proclaiming martial law or the suspension of the privilege of the writ of habeas corpus rests for which the President is granted ample, though not absolute, discretion. Under Section 2, Article III, the determination of probable cause is a purely legal question of which courts are the final arbiters. Justice Secretary Hernando Perez is reported to have announced that the lifting of the "state of rebellion" on May 7, 2001 does not stop the police from making warrantless arrests. 33 If this is so, the pernicious effects of the declaration on the people's civil liberties have not abated despite the lifting thereof. No one exactly knows who are in the list or who prepared the list of those to be arrested for alleged complicity in the "continuing" crime of "rebellion" defined as such by executive fiat. The list of the perceived leaders, financiers and supporters of the "rebellion" to be arrested and incarcerated could expand depending on the appreciation of the police. The coverage and duration of effectivity of the orders of arrest are thus so open-ended and limitless as to place in constant and continuing peril the people's Bill of Rights. It is of no small significance that four of the petitioners are opposition candidates for the Senate. Their campaign activities have been to a large extent immobilized. If the arrests and orders of arrest against them are illegal, then their Constitutional right to seek public office, as well as the right of the people to choose their officials, is violated. In view of the transcendental importance and urgency of the issues raised in these cases affecting as they do the basic liberties of the citizens enshrined in our Constitution, it behooves us to rule thereon now, instead of relegating the cases to trial courts which unavoidably may come up with conflicting dispositions, the same to reach this Court inevitably for final ruling. As we aptly pronounced in Salonga vs. Cruz Pao: 34
The Court also has the duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has the symbolic function of

educating bench and bar on the extent of protection given by constitutional guarantees.

Petitioners look up in urgent supplication to the Court, considered the last bulwark of democracy, for relief. If we do not act promptly, justly and fearlessly, to whom will they turn to? WHEREFORE, I vote as follows: (1)Give DUE COURSE to and GRANT the petitions; (2)Declare as NULL and VOID the orders of arrest issued against petitioners; (3)Issue a WRIT OF INJUNCTION enjoining respondents, their agents and all other persons acting for and in their behalf from effecting warrantless arrests against petitioners and all other persons similarly situated on the basis of Proclamation No. 38 and General Order No. 1 of the President. SO ORDERED. SANDOVAL-GUTIERREZ, J., dissenting: The exercise of certain powers by the President in an atmosphere of civil unrest may sometimes raise constitutional issues. If such powers are used arbitrarily and capriciously, they may degenerate into the worst form of despotism. It is on this premise that I express my dissent. The chain of events which led to the present constitutional crisis are as follows: On March 2, 2001, the Supreme Court rendered the landmark decision that would bar further questions on the legitimacy of Gloria Macapagal-Arroyo's presidency. 1 In a unanimous decision, the Court declared that Joseph Ejercito Estrada had effectively resigned his post and that Macapagal-Arroyo is the legitimate President of the Philippines. Estrada was stripped of all his powers and presidential immunity from suit. Knowing that a warrant of arrest may at any time be issued against Estrada, his loyalists rushed to his residence in Polk Street, North Greenhills Subdivision, San Juan, Metro Manila. They conducted vigil in the vicinity swearing that no one can take away their "president." Then the dreadful day for the Estrada loyalists came.

On April 25, 2001, the Third Division of the Sandiganbayan issued warrants of arrest against Estrada, his son Jinggoy, Charlie "Atong" Ang, Edward Serapio, Yolanda Ricaforte, Alma Alfaro, Eleuterio Tan and Delia Rajas. 2 Emotions ran high as an estimated 10,000 Estrada loyalists, ranging from tattooed teenagers of Tondo to wellheeled Chinese, gathered in Estrada's neighborhood. 3 Supporters turned hysterical. Newspapers captured pictures of raging men and wailing women. 4 When policemen came, riots erupted. Police had to use their batons as well as water hoses to control the rock-throwing Estrada loyalists. 5 It took the authorities about four hours to implement the warrant of arrest. At about 3:30 o'clock in the afternoon of the same day, Philippine National Police (PNP) Chief, Director General Leandro R. Mendoza, with the aid of PNP's Special Action Force and reinforcements from the Philippine Army and Marines, implemented the warrant of arrest against Estrada. 6 Like a common criminal, Estrada was fingerprinted and had his mug shots taken at the detention center of the former Presidential Anti-Organized Task Force at Camp Crame. The shabby treatment, caught on live TV cameras nationwide, had sparked off a wave of protest all over the country. Even international news agencies like CNN and BBC were appalled over the manner of Estrada's arrest calling it "overkill." In a taped message aired over radio and television, Estrada defended himself and said, "I followed the rule of law to the letter. I asked our people now to tell the powers to respect our constitution and the rule of law."

Being loyal to the end, the supporters of Estrada followed him to Camp Crame. About 3,000 of them massed up in front of the camp. They were shouting "Edsa Three! Edsa Three! They vowed not to leave the place until Estrada is released. When asked how long they planned to stay, the protesters said, "Kahit isang buwan, kahit isang taon." 7 At about 6:00 o'clock in the afternoon, also of the same day, the PNP's anti-riot squads dispersed them. Thus, they proceeded to the Edsa Shrine in Mandaluyong City where they joined forces with hundreds more who came from North Greenhills. 8 Hordes of Estrada loyalists began gathering at the historic shrine. On April 27, 2001, the crowd at Edsa begun to swell in great magnitude. Estrada loyalists from various sectors, most of them obviously belonging to the "masses," brought with them placards and streamers denouncing the manner of arrest done to the former president. 9 In the afternoon, buses loaded with loyalists from the nearby provinces arrived at the Edsa Shrine. One of their leaders said that the Estrada supporters will stay at Edsa Shrine until the former president gets justice from the present administration. 10

An estimated 1,500 PNP personnel from the different parts of the metropolis were deployed to secure the area. 11 On April 28, 2001, the PNP and the Armed Forces declared a "nationwide red alert." 12 Counter-intelligence agents checked on possible defectors from the military top officials. Several senators were linked to an alleged junta plot. During the rally, several Puwersa Ng Masa candidates delivered speeches before the crowd. Among those who showed up at the rally were Senators Miriam DefensorSantiago, Gregorio Honasan, Juan Ponce Enrile, Edgardo Angara, Vicente Sotto and former PNP Director General Panfilo Lacson and former Ambassador Ernesto Maceda.
13

On April 30, 2001, the government started to prepare its forces. A 2,000-strong military force backed up by helicopter gunships, Scorpion tanks and armored combat vehicles stood ready to counter any attempt by Estrada loyalists to mount a coup. And to show that it meant business, the task force parked two MG-520 attack helicopters armed to the teeth with rockets on the parade ground at Camp Aguinaldo, Quezon City. Also deployed were two armored personnel carriers and troops in camouflage uniforms. 14 Over 2,500 soldiers from the army, navy, and air force were formed into Task Force Libra to quell the indignant Estrada loyalists. 15 On May 1, 2001, at about 1:30 o'clock in the morning, the huge crowd at Edsa started their march to Malacaang. 16 Along the way, they overran the barricades set up by the members of the PNP Crowd Dispersal Control Management. 17 Shortly past 5:00 o'clock in the morning of the same day, the marchers were at the gates of Malacaang chanting, dancing, singing and waving flags. 18 At around 10:00 o'clock in the morning, the police, with the assistance of combat-ready soldiers, conducted dispersal operations. Some members of the dispersal team were unceasingly firing their high-powered firearms in the air, while the police, armed with truncheons and shields, were slowly pushing the protesters away from the gates of Malacaang. Television footages showed protesters hurling stones and rocks on the advancing policemen, shouting invectives against them and attacking them with clubs. They burned police cars, a motorcycle, three pick-ups owned by a television station, construction equipment and a traffic police outpost along Mendiola Street. 19 They also attacked Red Cross vans, destroyed traffic lights, and vandalized standing structures. Policemen were seen clubbing protesters, hurling back stones, throwing teargas under the fierce midday sun, and firing guns towards the sky. National Security Adviser Roilo Golez said the Street had to be cleared of rioters at all costs because "this is like an arrow, a dagger going all the way to (Malacaang) Gate 7." 20 Before noontime of that same day, the Estrada loyalists were driven away.

The violent street clashes prompted President Macapagal-Arroyo to place Metro Manila under a "state of rebellion." Presidential Spokesperson Rigoberto Tiglao told reporters, "We are in a state of rebellion. This is not an ordinary demonstration." 21 After the declaration, there were threats of arrests against those suspected of instigating the march to Malacaang. At about 3:30 o'clock in the afternoon, Senator Juan Ponce Enrile was arrested in his house in Dasmarias Village, Makati City by a group led by Reynaldo Berroya, Chief of the Philippine National Police Intelligence Group. 22 Thereafter, Berroya and his men proceeded to hunt re-electionist Senator Gregorio Honasan, former PNP Chief Panfilo Lacson, former Ambassador Ernesto Maceda, Brig. Gen. Jake Malajakan, Senior Superintendents Michael Ray Aquino and Cesar Mancao II, Ronald Lumbao and Cesar Tanega of the People's Movement Against Poverty (PMAP).] 23 Justice Secretary Hernando Perez said that he was "studying" the possibility of placing Senator Miriam Defensor Santiago "under the Witness protection program." Director Victor Batac, former Chief of the PNP Directorate for Police Community Relations, and Senior Superintendent Diosdado Valeroso, of the Philippine Center for Transnational Crime, surrendered to Berroya. Both denied having plotted the siege. On May 2, 2001, former Ambassador Ernesto Maceda was arrested. The above scenario presents three crucial queries: First, is President Macapagal-Arroyo's declaration of a "state of rebellion" constitutional? Second, was the implementation of the warrantless arrests on the basis of the declaration of a "state of rebellion" constitutional? And third, did the rallyists commit rebellion at the vicinity of Malacaang Palace on May 1, 2001? The first and second queries involve constitutional issues, hence, the basic yardstick is the 1987 Constitution of the Philippines. The third query requires a factual analysis of the events which culminated in the declaration of a state of rebellion; hence, an examination of Article 134 of the Revised Penal Code is in order. On May 7, 2001, President Macapagal-Arroyo issued Proclamation No. 39, "DECLARING THAT THE STATE OF REBELLION IN THE NATIONAL CAPITAL REGION HAS CEASED TO EXIST", which in effect has lifted the previous Proclamation No. 38. I beg to disagree with the majority opinion in ruling that the instant petitions have been rendered moot and academic with the lifting by the President of the declaration of a "state of rebellion".

I believe that such lifting should not render moot and academic the very serious and unprecedented constitutional issues at hand, considering their grave implications involving the basic human rights and civil liberties of our people. A resolution of these issues becomes all the more necessary since, as reported in the papers, there are saturation drives (sonas) being conducted by the police wherein individuals in Metro Manila are picked up without warrants of arrest. Moreover, the acts sought to be declared illegal and unconstitutional are capable of being repeated by the respondents. In Salva v. Makalintal (G.R. No. 132603, Sept. 18, 2000), this Court held that "courts will decide a question otherwise moot and academic if it is 'capable of repetition, yet evading review' . . ." I & II President Macapagal-Arroyo's declaration of a "state of rebellion" and the implementation of the warrantless arrests premised on the said declaration are unconstitutional. Nowhere in the Constitution can be found a provision which grants upon the executive the power to declare a "state of rebellion," much more, to exercise on the basis of such declaration the prerogatives which a president may validly do under a state of martial law. President Macapagal-Arroyo committed a constitutional short cut. She disregarded the clear provisions of the Constitution which provide:
"SECTION 18.The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual bases of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released." 24

Obviously, the power of the President in cases when she assumed the existence of rebellion is properly laid down by the Constitution. I see no reason or justification for the President's deviation from the concise and plain provisions. To accept the theory that the President could disregard the applicable statutes, particularly that which concerns arrests, searches and seizures, on the mere declaration of a "state of rebellion" is in effect to place the Philippines under martial law without a declaration of the executive to that effect and without observing the proper procedure. This should not be countenanced. In a society which adheres to the rule of law, resort to extra-constitutional measures is unnecessary where the law has provided everything for any emergency or contingency. For even if it may be proven beneficial for a time, the precedent it sets is pernicious as the law may, in a little while, be disregarded again on the same pretext but for evil purposes. Even in time of emergency, government action may vary in breath and intensity from more normal times, yet it need not be less constitutional. 25 My fear is rooted in history. Our nation had seen the rise of a dictator into power. As a matter of fact, the changes made by the 1986 Constitutional Commission on the martial law text of the Constitution were to a large extent a reaction against the direction which the Supreme Court took during the regime of President Marcos. 26 Now, if this Court would take a liberal view, and consider that the declaration of a "state of rebellion" carries with it the prerogatives given to the President during a "state of martial law," then, I say, the Court is traversing a very dangerous path. It will open the way to those who, in the end, would turn our democracy into a totalitarian rule. History must not be allowed to repeat itself. Any act which gears towards possible dictatorship must be severed at its inception.

The implementation of warrantless arrests premised on the declaration of a "state of rebellion" is unconstitutional and contrary to existing laws. The Constitution provides that "the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizure of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized." 27 If a state of martial law "does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians, where civil courts are able to function, nor automatically suspend the privilege of the writ," 28(a) then it is with more reason, that a mere declaration of a state of rebellion could not bring about the suspension of the operation of the Constitution or of the writ of habeas corpus. Neither can we find the implementation of the warrantless arrests justified under the Revised Rules on Criminal Procedure. Pertinent is Section 5, Rule 113, thus:
"SECTION 5.Arrest without warrant, when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a)When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. (b)When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts and circumstances that the person to be arrested has committed it; and xxx xxx xxx."

Petitioners cannot be considered "to have committed, is actually committing, or is attempting to commit an offense" at the time they were hunted by Berroya for the implementation of the warrantless arrests. None of them participated in the riot which took place in the vicinity of the Malacaang Palace. Some of them were on their respective houses performing innocent acts such as watching television, resting etc. The sure fact however is that they were not in the presence of Berroya. Clearly, he did not see whether they had committed, were committing or were attempting to commit the crime of rebellion. But of course, I cannot lose sight of the legal implication of President Macapagal-Arroyo's declaration of a "state of rebellion." Rebellion is a continuing offense and a suspected insurgent or rebel may be arrested anytime as he is considered to be committing the crime. Nevertheless, assuming ex gratia argumenti that the declaration of a state of rebellion is constitutional, it is imperative that the said declaration be reconsidered. In view of the changing times, the dissenting opinion of the noted jurist, Justice Isagani Cruz, in Umil v. Ramos, 28 quoted below must be given a second look.

"I dissent insofar as the ponencia affirms the ruling in Garcia-Padilla vs. Enrile that subversion is a continuing offense, to justify the arrest without warrant of any person at any time as long as the authorities say he has been placed under surveillance on suspicion of the offense. That is a dangerous doctrine. A person may be arrested when he is doing the most innocent acts, as when he is only washing his hands, or taking his supper, or even when he is sleeping, on the ground that he is committing the 'continuing' offense of subversion. Libertarians were appalled when that doctrine was imposed during the Marcos regime. I am alarmed that even now this new Court is willing to sustain it. I strongly urge my colleagues to discard it altogether as one of the disgraceful vestiges of the past dictatorship and uphold the rule guaranteeing the right of the people against unreasonable searches and seizures. We can do no less if we are really to reject the past oppression and commit ourselves to the true freedom. Even if it be argued that the military should be given every support in our fight against subversion, I maintain that that fight must be waged honorably, in accordance with the Bill of Rights. I do not believe that in fighting the enemy we must adopt the ways of the enemy, which are precisely what we are fighting against. I submit that our more important motivation should be what are we fighting for."

I need not belabor that at the time some of the suspected instigators were arrested, (the others are still at-large), a long interval of time already passed and hence, it cannot be legally said that they had just committed an offense. Neither can it be said that Berroya or any of his men had "personal knowledge of facts or circumstances that the persons to be arrested have committed a crime." That would be far from reality. III The acts of the rallyists at the vicinity of Malacaang Palace on May 1, 2001 do not constitute rebellion. Article 134 of the Revised Penal Code reads:
"ARTICLE 134.Rebellion or insurrection How committed. The crime of rebellion or insurrection is committed by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, of any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives." (As amended by RA No. 6968, O.G. 52, p. 9864, 1990)

From the foregoing provisions, the elements of the crime of rebellion may be deduced, thus: first, that there be (a) public uprising and (b) taking arms against the government; second, that the purpose of the uprising or movement is either (a) to remove from the allegiance to said government or its laws (1) the territory of the Philippines or any part thereof; or (2) any body of land, naval or other armed forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers or prerogatives. 29

Looking at the events on a magnified scale, I am convinced that the two elements of the crime of rebellion are lacking. First, there was no "taking of arms" against the government. To my mind, "taking arms" connotes the multitude's deliberate and conscious resort to arms or weapons for the purpose of aiding them in accomplishing any of the purposes of rebellion. Admittedly, the Estrada loyalists pelted the policemen with rocks and stones and attacked them with sticks and clubs, but such was merely a result of the heightening tension between opposite camps during the period of dispersal. The stones, rocks, sticks, clubs and other improvised weapons were not deliberately resorted to by the Estrada loyalists to further any of the purposes of rebellion. They availed of them, at the precise moment of dispersal (this explains why their weapons were those which could be easily gathered on the street) and only for the purpose of stopping the policemen from dispersing them. In this age of modernity, one who intends to overthrow the government will not only settle for stones, woods, rocks, sticks or clubs as means to disable the government. It will be extremely pathetic and the result will only be in vain. Unlike a true rebellion which is organized, what happened at the vicinity of Malacaang was merely a riot, a mob violence, or a tumultuous uprising. At this juncture, it bears stressing that the crime of rebellion is a vast movement of men and a complex net of intrigues and plots. 30 It must be distinguished from riot and offenses connected with mob violence. In rebellion/insurrection, there is an organized and armed uprising against authority. 31 Second, the purpose of the Estrada loyalists was neither (a) to remove from the allegiance to the government or its laws (1) the territory of the Philippines or any part thereof; or (2) any part of land, naval or other armed forces; nor (b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers or prerogatives. I looked at the chronology of events, and one thing surfaced the Estrada loyalists mainly demanded that their beloved "president" should not be incarcerated. The crowd at Edsa swelled in great magnitude on April 25, 2001, the day Estrada was arrested. In fact, when they followed Erap at Camp Crame, they were shouting "Edsa! Edsa! and they vowed not to leave until Estrada is released." 32

One must not be swayed by the theory of respondents that the purpose of those people who gathered in Edsa and marched to Malacaang was to commit rebellion. For sure, there were a thousand and one reasons why they proceeded to Edsa. In determining their purpose, one must trace the roots, what prompted them to go to Edsa? They were the Estrada loyalists who wanted him to be freed. If indeed there were minorities who advocated another cause, the same should not be considered as the prevailing one in the determination of what crime was committed. Facts should not be stretched just to build a case of rebellion. This runs counter to the principle of due process.

As a final word, I subscribe to the principle that the rule of law implies the precept that similar cases be treated similarly. Men can not regulate their actions by means of rule if this precept is not followed. Edsa I, Edsa II and Edsa III are all public uprisings. Statements urging people to overthrow the government were uttered in all these occasions. Injuries were sustained, policemen were attacked, standing structures were vandalized . . . in all these scenarios, one cannot be said to be extremely away from the other. The only difference is that the first two succeeded, while the last failed. This should not result to an unbridled or unlimited exercise of power by the duly constituted authorities. It is during these trying times that fealty to the Constitution is strongly demanded from all, especially the authorities concerned. WHEREFORE, I vote to give DUE COURSE to the petitions and GRANT the same and to enjoin the respondents from arresting the petitioners in G.R. Nos. 147780, 147781, and 147799 without the corresponding warrants. SO ORDERED.

EN BANC
[G.R. No. 159085. February 3, 2004.] SANLAKAS, represented by REP. J.V. Bautista, and PARTIDO NG MANGGAGAWA, represented by REP. RENATO MAGTUBO, petitioners, vs. EXECUTIVE SECRETARY ANGELO REYES, GENERAL NARCISO ABAYA, DIR. GEN. HERMOGENES EBDANE, respondents. [G.R. No. 159103. February 3, 2004.] SOCIAL JUSTICE SOCIETY (SJS) OFFICERS/MEMBERS namely, SAMSON S. ALCANTARA, ED VINCENT S. ALBANO, RENE B. GOROSPE, EDWIN R. SANDOVAL and RODOLFO D. MAPILE, petitioners, vs. HON. EXECUTIVE SECRETARY ALBERTO G. ROMULO, HON. SECRETARY OF JUSTICE SIMEON DATUMANONG, HON. SECRETARY OF NATIONAL DEFENSE ANGELO REYES, and HON. SECRETARY JOSE LINA, JR., respondents. [G.R. No. 159185. February 3, 2004.] REP. ROLEX T. SUPLICO, REP. CARLOS M. PADILLA, REP. CELSO L. LOBREGAT, REP. HUSSIN U. AMIN, REP. ABRAHAM KAHLIL B. MITRA, REP. EMMYLOU J. TALINO-SANTOS, and REP. GEORGILU R. YUMUL-HERMIDA, petitioners, vs. PRESIDENT GLORIA MACAPAGAL-ARROYO; and EXECUTIVE SECRETARY ALBERTO G. ROMULO, respondents. [G.R. No. 159196. February 3, 2004.] AQUILINO Q. PIMENTEL, JR. as a Member of the Senate, petitioner, vs. SECRETARY ALBERTO ROMULO, AS EXECUTIVE SECRETARY; SECRETARY ANGELO REYES, AS SECRETARY OF NATIONAL DEFENSE; GENERAL NARCISO ABAYA, AS CHIEF OF STAFF OF THE ARMED FORCES; SECRETARY JOSE LINA, et al., respondents.

DECISION

TINGA, J :
p

They came in the middle of the night. Armed with high-powered ammunitions and explosives, some three hundred junior officers and enlisted men of the Armed Forces of the Philippines (AFP) stormed into the Oakwood Premiere apartments in Makati City in the wee hours of July 27, 2003. Bewailing the corruption in the AFP, the soldiers demanded, among other things, the resignation of the President, the Secretary of Defense and the Chief of the Philippine National Police (PNP). 1 In the wake of the Oakwood occupation, the President issued later in the day Proclamation No. 427 and General Order No. 4, both declaring "a state of rebellion" and calling out the Armed Forces to suppress the rebellion. Proclamation No. 427 reads in full:
PROCLAMATION NO. 427 DECLARING A STATE OF REBELLION WHEREAS, certain elements of the Armed Forces of the Philippines, armed with high-powered firearms and explosives, acting upon the instigation and command and direction of known and unknown leaders, have seized a building in Makati City, put bombs in the area, publicly declared withdrawal of support for, and took arms against the duly constituted Government, and continue to rise publicly and show open hostility, for the purpose of removing allegiance to the Government certain bodies of the Armed Forces of the Philippines and the Philippine National Police, and depriving the President of the Republic of the Philippines, wholly or partially, of her powers and prerogatives which constitute the crime of rebellion punishable under Article 134 of the Revised Penal Code, as amended;
aTCADc

WHEREAS, these misguided elements of the Armed Forces of the Philippines are being supported, abetted and aided by known and unknown leaders, conspirators and plotters in the government service and outside the government; WHEREAS, under Section 18, Article VII of the present Constitution, whenever it becomes necessary, the President, as the Commander-in-Chief of the Armed Forces of the Philippines, may call out such Armed Forces to suppress the rebellion; NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me by law, hereby confirm the existence of an actual and ongoing rebellion, compelling me to declare a state of rebellion.

In view of the foregoing, I am issuing General Order No. 4 in accordance with Section 18, Article VII of the Constitution, calling out the Armed Forces of the Philippines and the Philippine National Police to immediately carry out the necessary actions and measures to suppress and quell the rebellion with due regard to constitutional rights.

General Order No. 4 is similarly worded:

GENERAL ORDER NO. 4 DIRECTING THE ARMED FORCES OF THE PHILIPPINES AND THE PHILIPPINE NATIONAL POLICE TO SUPPRESS REBELLION WHEREAS, certain elements of the Armed Forces of the Philippines, armed with high-powered firearms and explosives, acting upon the instigation and command and direction of known and unknown leaders, have seized a building in Makati City, put bombs in the area, publicly declared withdrawal of support for, and took arms against the duly constituted Government, and continue to rise publicly and show open hostility, for the purpose of removing allegiance to the Government certain bodies of the Armed Forces of the Philippines and the Philippine National Police, and depriving the President of the Republic of the Philippines, wholly or partially, of her powers and prerogatives which constitute the crime of rebellion punishable under Article 134 et seq. of the Revised Penal Code, as amended; WHEREAS, these misguided elements of the Armed Forces of the Philippines are being supported, abetted and aided by known and unknown leaders, conspirators and plotters in the government service and outside the government; WHEREAS, under Section 18, Article VII of the present Constitution, whenever it becomes necessary, the President, as the Commander-in-Chief of all Armed Forces of the Philippines, may call out such Armed Forces to suppress the rebellion; NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me by the Constitution as President of the Republic of the Philippines and Commander-in-Chief of all the armed forces of the Philippines and pursuant to Proclamation No. 427 dated July 27, 2003, do hereby call upon the Armed Forces of the Philippines and the Philippine National Police to suppress and quell the rebellion. I hereby direct the Chief of the Armed Forces of the Philippines and the Chief of the Philippine National Police and the officers and men of the Armed Forces of the Philippines and the Philippine National Police to immediately carry out the necessary and appropriate actions and measures to suppress and quell the rebellion with due regard to constitutional rights.

By the evening of July 27, 2003, the Oakwood occupation had ended. After hours-long negotiations, the soldiers agreed to return to barracks. The President, however, did not immediately lift the declaration of a state of rebellion and did so only on August 1, 2003, through Proclamation No. 435:
DECLARING THAT THE STATE OF REBELLION HAS CEASED TO EXIST WHEREAS, by virtue of Proclamation No. 427 dated July 27, 2003, a state of rebellion was declared; WHEREAS, by virtue of General Order No. 4 dated July 27, 2003, which was issued on the basis of Proclamation No. 427 dated July 27, 2003, and pursuant to Article VII, Section 18 of the Constitution, the Armed Forces of the Philippines and the Philippine National Police were directed to suppress and quell the rebellion; WHEREAS, the Armed Forces of the Philippines and the Philippine National Police have effectively suppressed and quelled the rebellion. NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Philippines, by virtue of the powers vested in me by law, hereby declare that the state of rebellion has ceased to exist.

In the interim, several petitions were filed before this Court challenging the validity of Proclamation No. 427 and General Order No. 4. In G.R. No. 159085 (Sanlakas and PM v. Executive Secretary, et al.), 2 party-list organizations Sanlakas and Partido ng Manggagawa (PM), contend that Section 18, Article VII of the Constitution does not require the declaration of a state of rebellion to call out the armed forces. 3 They further submit that, because of the cessation of the Oakwood occupation, there exists no sufficient factual basis for the proclamation by the President of a state of rebellion for an indefinite period. 4 Petitioners in G.R. No. 159103 (SJS Officers/Members P. Hon. Executive Secretary, et al.) are officers/members of the Social Justice Society (SJS), "Filipino citizens, taxpayers, law professors and bar reviewers." 5 Like Sanlakas and PM, they claim that Section 18, Article VII of the Constitution does not authorize the declaration of a state of rebellion. 6 They contend that the declaration is a "constitutional anomaly" that "confuses, confounds and misleads" because "[o]verzealous public officers, acting pursuant to such proclamation or general order, are liable to violate the constitutional right of private citizens." 7 Petitioners also submit that the proclamation is a circumvention of the report requirement under the same Section 18, Article VII, commanding the President to submit a report to Congress within 48 hours from the proclamation of martial law. 8 Finally, they

contend that the presidential issuances cannot be construed as an exercise of emergency powers as Congress has not delegated any such power to the President. 9 In G.R. No. 159185 (Rep. Suplico et al. v. President Macapagal-Arroyo and Executive Secretary Romulo), petitioners brought suit as citizens and as Members of the House of Representatives whose rights, powers and functions were allegedly affected by the declaration of a state of rebellion. 10 Petitioners do not challenge the power of the President to call out the Armed Forces. 11 They argue, however, that the declaration of a state of rebellion is a "superfluity," and is actually an exercise of emergency powers. 12 Such exercise, it is contended, amounts to a usurpation of the power of Congress granted by Section 23 (2), Article VI of the Constitution. 13 In G.R. No. 159196 (Pimentel v. Romulo, et al.), petitioner Senator assails the subject presidential issuances as "an unwarranted, illegal and abusive exercise of a martial law power that has no basis under the Constitution." 14 In the main, petitioner fears that the declaration of a state of rebellion "opens the door to the unconstitutional implementation of warrantless arrests" for the crime of rebellion. 15

Required to comment, the Solicitor General argues that the petitions have been rendered moot by the lifting of the declaration. 16 In addition, the Solicitor General questions the standing of the petitioners to bring suit. 17 The Court agrees with the Solicitor General that the issuance of Proclamation No. 435, declaring that the state of rebellion has ceased to exist, has rendered the case moot. As a rule, courts do not adjudicate moot cases, judicial power being limited to the determination of "actual controversies." 18 Nevertheless, courts will decide a question, otherwise moot, if it is "capable of repetition yet evading review." 19 The case at bar is one such case. Once before, the President on May 1, 2001 declared a state of rebellion and called upon the AFP and the PNP to suppress the rebellion through Proclamation No. 38 and General Order No. 1. On that occasion, "an angry and violent mob armed with explosives, firearms, bladed weapons, clubs, stones and other deadly weapons' assaulted and attempted to break into Malacaang." 20 Petitions were filed before this Court assailing the validity of the President's declaration. Five days after such declaration, however, the President lifted the same. The mootness of the petitions in Lacson v. Perez and accompanying cases 21 precluded this Court from addressing the constitutionality of the declaration.

To prevent similar questions from reemerging, we seize this opportunity to finally lay to rest the validity of the declaration of a state of rebellion in the exercise of the President's calling out power, the mootness of the petitions notwithstanding. Only petitioners Rep. Suplico et al. and Sen. Pimentel, as Members of Congress, have standing to challenge the subject issuances. In Philippine Constitution Association v. Enriquez, 22 this Court recognized that:
To the extent the powers of Congress are impaired, so is the power of each member thereof, since his office confers a right to participate in the exercise of the powers of that institution. An act of the Executive which injures the institution of Congress causes a derivative but nonetheless substantial injury, which can be questioned by a member of Congress. In such a case, any member of Congress can have a resort to the courts.

Petitioner Members of Congress claim that the declaration of a state of rebellion by the President is tantamount to an exercise of Congress' emergency powers, thus impairing the lawmakers' legislative powers. Petitioners also maintain that the declaration is a subterfuge to avoid congressional scrutiny into the President's exercise of martial law powers. Petitioners Sanlakas and PM, and SJS Officers/Members, have no legal standing or locus standi to bring suit. "Legal standing" or locus standi has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. . . . The gist of the question of standing is whether a party alleges "such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions." 23 Petitioners Sanlakas and PM assert that:
2.As a basic principle of the organizations and as an important plank in their programs, petitioners are committed to assert, defend, protect, uphold, and promote the rights, interests, and welfare of the people, especially the poor and marginalized classes and sectors of Philippine society. Petitioners are committed to defend and assert human rights, including political and civil rights, of the citizens. 3.Members of the petitioner organizations resort to mass actions and mobilizations in the exercise of their Constitutional rights to peaceably assemble and their freedom of speech and of expression under Section 4, Article III of the 1987 Constitution, as a vehicle to publicly ventilate their grievances

and legitimate demands and to mobilize public opinion to support the same. 24 [Emphasis in the original.]

Petitioner party-list organizations claim no better right than the Laban ng Demokratikong Pilipino, whose standing this Court rejected in Lacson v. Perez.
. . . petitioner has not demonstrated any injury to itself which would justify the resort to the Court. Petitioner is a juridical person not subject to arrest. Thus, it cannot claim to be threatened by a warrantless arrest. Nor is it alleged that the leaders, members, and supporters are being threatened with warrantless arrest and detention for the crime of rebellion. Every action must be brought in the name of the party whose legal rights has been invaded or infringed, or whose legal right is under imminent threat of invasion or infringement. At best, the instant petition may be considered as an action for declaratory relief, petitioner claiming that it[']s right to freedom of expression and freedom of assembly is affected by the declaration of a "state of rebellion" and that said proclamation is invalid for being contrary to the Constitution. However, to consider the petition as one for declaratory relief affords little comfort to petitioner, this Court not having jurisdiction in the first instance over such a petition. Section 5 [1], Article VIII of the Constitution limits the original jurisdiction of the court to cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. 25

Even assuming that petitioners are "people's organizations," this status would not vest them with the requisite personality to question the validity of the presidential issuances, as this Court made clear in Kilosbayan v. Morato: 26
The Constitution provides that "the State shall respect the role of independent people's organizations to enable the people to pursue and protect, within the democratic framework, their legitimate and collective interests and aspirations through peaceful and lawful means," that their right to "effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged." (Art. XIII, 1516) These provisions have not changed the traditional rule that only real parties in interest or those with standing, as the case may be, may invoke the judicial power. The jurisdiction of this Court, even in cases involving constitutional questions, is limited by the "case and controversy" requirement of Art. VIII, 5. This requirement lies at the very heart of the judicial function. It is what differentiates decision-making in the courts from decision-making in the political departments of the government and bars the bringing of suits by just any party. 27

That petitioner SJS officers/members are taxpayers and citizens does not necessarily endow them with standing. A taxpayer may bring suit where the act complained of directly involves the illegal disbursement of public funds derived from taxation. 28 No such illegal disbursement is alleged. On the other hand, a citizen will be allowed to raise a constitutional question only when he can show that he has personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action; and the injury is likely to be redressed by a favorable action. 29 Again, no such injury is alleged in this case. Even granting these petitioners have standing on the ground that the issues they raise are of transcendental importance, the petitions must fail. It is true that for the purpose of exercising the calling out power the Constitution does not require the President to make a declaration of a state of rebellion. Section 18, Article VII provides:
Sec. 18.The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis for the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor

authorize the conferment of the jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. [Emphasis supplied.]

The above provision grants the President, as Commander-in-Chief, a "sequence" of "graduated power[s]." 30 From the most to the least benign, these are: the calling out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare martial law. In the exercise of the latter two powers, the Constitution requires the concurrence of two conditions, namely, an actual invasion or rebellion, and that public safety requires the exercise of such power. 31 However, as we observed in Integrated Bar of the Philippines v. Zamora, 32 "[t]hese conditions are not required in the exercise of the calling out power. The only criterion is that 'whenever it becomes necessary,' the President may call the armed forces 'to prevent or suppress lawless violence, invasion or rebellion.'" Nevertheless, it is equally true that Section 18, Article VII does not expressly prohibit the President from declaring a state of rebellion. Note that the Constitution vests the President not only with Commander-in-Chief powers but, first and foremost, with Executive powers. Section 1, Article VII of the 1987 Philippine Constitution states: "The executive power shall be vested in the President. . . ." As if by exposition, Section 17 of the same Article provides: "He shall ensure that the laws be faithfully executed." The provisions trace their history to the Constitution of the United States. The specific provisions of the U.S. Constitution granting the U.S. President executive and commander-in-chief powers have remained in their original simple form since the Philadelphia Constitution of 1776, Article II of which states in part:
Section 1.1.The Executive Power shall be vested in a President of the United States of America . . . . xxx xxx xxx Section 2.1.The President shall be Commander in Chief of the Army and Navy of the United States. . . .

xxx xxx xxx Section 3.. . . he shall take care that the laws be faithfully executed. . . . [Article II Executive Power]

Recalling in historical vignettes the use by the U.S. President of the above-quoted provisions, as juxtaposed against the corresponding action of the U.S. Supreme Court, is instructive. Clad with the prerogatives of the office and endowed with sovereign powers, which are drawn chiefly from the Executive Power and Commander-in-Chief provisions, as well as the presidential oath of office, the President serves as Chief of State or Chief of Government, Commander-in-Chief, Chief of Foreign Relations and Chief of Public Opinion. 33 First to find definitive new piers for the authority of the Chief of State, as the protector of the people, was President Andrew Jackson. Coming to office by virtue of a political revolution, Jackson, as President not only kept faith with the people by driving the patricians from power. Old Hickory, as he was fondly called, was the first President to champion the indissolubility of the Union by defeating South Carolina's nullification effort. 34 The Federal Tariff Acts of 1828 and 1832 that Congress enacted did not pacify the hotspurs from South Carolina. Its State Legislature ordered an election for a convention, whose members quickly passed an Ordinance of Nullification. The Ordinance declared the Tariff Acts unconstitutional, prohibited South Carolina citizens from obeying them after a certain date in 1833, and threatened secession if the Federal Government sought to oppose the tariff laws. The Legislature then implemented the Ordinance with bristling punitive laws aimed at any who sought to pay or collect customs duties. 35 Jackson bided his time. His task of enforcement would not be easy. Technically, the President might send troops into a State only if the Governor called for help to suppress an insurrection, which would not occur in the instance. The President could also send troops to see to it that the laws enacted by Congress were faithfully executed. But these laws were aimed at individual citizens, and provided no enforcement machinery against violation by a State. Jackson prepared to ask Congress for a force bill. 36 In a letter to a friend, the President gave the essence of his position. He wrote: ". . . when a faction in a State attempts to nullify a constitutional law of Congress, or to destroy the Union, the balance of the people composing this Union have a perfect right to coerce them to obedience." Then in a Proclamation he issued on December 10, 1832, he called upon South Carolinians to realize that there could be no peaceable interference with the execution of the laws, and dared them, "disunion by armed force is treason. Are you ready to incur its guilt?" 37

The Proclamation frightened nullifiers, non-nullifiers and tight-rope walkers. Soon, State Legislatures began to adopt resolutions of agreement, and the President announced that the national voice from Maine on the north to Louisiana on the south had declared nullification and accession "confined to contempt and infamy." 38 No other President entered office faced with problems so formidable, and enfeebled by personal and political handicaps so daunting, as Abraham Lincoln. Lincoln believed the President's power broad and that of Congress explicit and restricted, and sought some source of executive power not failed by misuse or wrecked by sabotage. He seized upon the President's designation by the Constitution as Commander-in-Chief, coupled it to the executive power provision and joined them as "the war power" which authorized him to do many things beyond the competence of Congress. 39 Lincoln embraced the Jackson concept of the President's independent power and duty under his oath directly to represent and protect the people. In his Message of July 4, 1861, Lincoln declared that "the Executive found the duty of employing the war power in defense of the government forced upon him. He could not but perform the duty or surrender the existence of the Government . . . ." This concept began as a transition device, to be validated by Congress when it assembled. In less than two-years, it grew into an independent power under which he felt authorized to suspend the privilege of the writ of habeas corpus, issue the Emancipation Proclamation, and restore reoccupied States. 40 Lincoln's Proclamation of April 15, 1861, called for 75,000 troops. Their first service, according to the proclamation, would be to recapture forts, places and property, taking care "to avoid any devastation, any destruction of or interference with property, or any disturbance of peaceful citizens." 41 Early in 1863, the U.S. Supreme Court approved President Lincoln's report to use the war powers without the benefit of Congress. The decision was handed in the celebrated Prize Cases 42 which involved suits attacking the President's right to legally institute a blockade. Although his Proclamation was subsequently validated by Congress, the claimants contended that under international law, a blockade could be instituted only as a measure of war under the sovereign power of the State. Since under the Constitution only Congress is exclusively empowered to declare war, it is only that body that could impose a blockade and all prizes seized before the legislative declaration were illegal. By a 5 to 4 vote, the Supreme Court upheld Lincoln's right to act as he had. 43 In the course of time, the U.S. President's power to call out armed forces and suspend the privilege of the writ of habeas corpus without prior legislative approval, in case of invasion, insurrection, or rebellion came to be recognized and accepted. The United States introduced the expanded presidential powers in the Philippines through the

Philippine Bill of 1902. 44 The use of the power was put to judicial test and this Court held that the case raised a political question and said that it is beyond its province to inquire into the exercise of the power. 45 Later, the grant of the power was incorporated in the 1935 Constitution. 46 Elected in 1884, Grover Cleveland took his ascent to the presidency to mean that it made him the trustee of all the people. Guided by the maxim that "Public office is a public trust," which he practiced during his incumbency, Cleveland sent federal troops to Illinois to quell striking railway workers who defied a court injunction. The injunction banned all picketing and distribution of handbills. For leading the strikes and violating the injunction, Debs, who was the union president, was convicted of contempt of court. Brought to the Supreme Court, the principal issue was by what authority of the Constitution or statute had the President to send troops without the request of the Governor of the State. 47 In In Re: Eugene Debs, et a1, 48 the Supreme Court upheld the contempt conviction. It ruled that it is not the government's province to mix in merely individual present controversies. Still, so it went on, "whenever wrongs complained of are such as affect the public at large, and are in respect of matters which by the Constitution are entrusted to the care of the Nation and concerning which the Nation owes the duty to all citizens of securing to them their common rights, then the mere fact that the Government has no pecuniary interest in the controversy is not sufficient to exclude it from the Courts, or prevent it from taking measures therein to fully discharge those constitutional duties." 49 Thus, Cleveland's course had the Court's attest. Taking off from President Cleveland, President Theodore Roosevelt launched what political scientists dub the "stewardship theory." Calling himself "the steward of the people," he felt that the executive power "was limited only by the specific restrictions and prohibitions appearing in the Constitution, or impleaded by Congress under its constitutional powers." 50

The most far-reaching extension of presidential power "T.R." ever undertook to employ was his plan to occupy and operate Pennsylvania's coal mines under his authority as Commander-in-Chief. In the issue, he found means other than force to end the 1902 hardcoal strike, but he had made detailed plans to use his power as Commander-in-Chief to wrest the mines from the stubborn operators, so that coal production would begin again.
51

Eventually, the power of the State to intervene in and even take over the operation of vital utilities in the public interest was accepted. In the Philippines, this led to the incorporation of Section 6, 52 Article XIII of the 1935 Constitution, which was later

carried over with modifications in Section 7, 53 Article XIV of the 1973 Constitution, and thereafter in Section 18, 54 Article XII of the 1987 Constitution. The lesson to be learned from the U.S. constitutional history is that the Commander-inChief powers are broad enough as it is and become more so when taken together with the provision on executive power and the presidential oath of office. Thus, the plenitude of the powers of the presidency equips the occupant with the means to address exigencies or threats which undermine the very existence of government or the integrity of the State. In The Philippine Presidency A Study of Executive Power, the late Mme. Justice Irene R. Cortes, proposed that the Philippine President was vested with residual power and that this is even greater than that of the U.S. President. She attributed this distinction to the "unitary and highly centralized" nature of the Philippine government. She noted that, "There is no counterpart of the several states of the American union which have reserved powers under the United States constitution." Elaborating on the constitutional basis for her argument, she wrote:
. . . The [1935] Philippine [C]onstitution establishes the three departments of the government in this manner: "The legislative power shall be vested in a Congress of the Philippines which shall consist of a Senate and a House of Representatives." "The executive power shall be vested in a President of the Philippines." The judicial powers shall be vested in one Supreme Court and in such inferior courts as may be provided by law." These provisions not only establish a separation of powers by actual division but also confer plenary legislative, executive, and judicial powers. For as the Supreme Court of the Philippines pointed out in Ocampo v. Cabangis, "a grant of legislative power means a grant of all the legislative power; and a grant of the judicial power means a grant of all the judicial power which may be exercised under the government." If this is true of the legislative power which is exercised by two chambers with a combined membership [at that time] of more than 120 and of the judicial power which is vested in a hierarchy of courts, it can equally if not more appropriately apply to the executive power which is vested in one official the president. He personifies the executive branch. There is a unity in the executive branch absent from the two other branches of government. The president is not the chief of many executives. He is the executive. His direction of the executive branch can be more immediate and direct than the United States president because he is given by express provision of the constitution control over all executive departments, bureaus and offices. 55

The esteemed justice conducted her study against the backdrop of the 1935 Constitution, the framers of which, early on, arrived at a general opinion in favor of a strong Executive in the Philippines." 56 Since then, reeling from the aftermath of martial law, our most recent Charter has restricted the President's powers as Commander-in-Chief. The same, however, cannot be said of the President's powers as Chief Executive.

In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into jurisprudence. There, the Court, by a slim 8-7 margin, upheld the President's power to forbid the return of her exiled predecessor. The rationale for the majority's ruling rested on the President's
. . . unstated residual powers which are implied from the grant of executive power and which are necessary for her to comply with her duties under the Constitution. The powers of the President are not limited to what are expressly enumerated in the article on the Executive Department and in scattered provisions of the Constitution. This is so, notwithstanding the avowed intent of the members of the Constitutional Commission of 1986 to limit the powers of the President as a reaction to the abuses under the regime of Mr. Marcos, for the result was a limitation of specific powers of the President, particularly those relating to the commander-in-chief clause, but not a diminution of the general grant of executive power. 57 [Emphasis supplied. Italics in the original.]

Thus, the President's authority to declare a state of rebellion springs in the main from her powers as chief executive and, at the same time, draws strength from her Commander-inChief powers. Indeed, as the Solicitor General accurately points out, statutory authority for such a declaration may be found in Section 4, Chapter 2 (Ordinance Power), Book III (Office of the President) of the Revised Administrative Code of 1987, which states:
SEC. 4.Proclamations. Acts of the President fixing a date or declaring a status or condition of public moment or interest, upon the existence of which the operation of a specific law or regulation is made to depend, shall be promulgated in proclamations which shall have the force of an executive order. [Emphasis supplied.]

The foregoing discussion notwithstanding, in calling out the armed forces, a declaration of a state of rebellion is an utter superfluity. 58 At most, it only gives notice to the nation that such a state exists and that the armed forces may be called to prevent or suppress it. 59 Perhaps the declaration may wreak emotional effects upon the perceived enemies of the State, even on the entire nation. But this Court's mandate is to probe only into the legal consequences of the declaration. This Court finds that such a declaration is devoid of any legal significance. For all legal intents, the declaration is deemed not written. Should there be any "confusion" generated by the issuance of Proclamation No. 427 and General Order No. 4, we clarify that, as the dissenters in Lacson correctly pointed out, the mere declaration of a state of rebellion cannot diminish or violate constitutionally protected rights. 60 Indeed, if a state of martial law does not suspend the operation of the Constitution or automatically suspend the privilege of the writ of habeas corpus, 61 then it is with more reason that a simple declaration of a state of rebellion could not bring about these conditions. 62 At any rate, the presidential issuances themselves call for the suppression of the rebellion "with due regard to constitutional rights."

For the same reasons, apprehensions that the military and police authorities may resort to warrantless arrests are likewise unfounded. In Lacson vs. Perez, supra, majority of the Court held that "[i]n quelling or suppressing the rebellion, the authorities may only resort to warrantless arrests of persons suspected of rebellion, as provided under Section 5, Rule 113 of the Rules of Court, 63 if the circumstances so warrant. The warrantless arrest feared by petitioners is, thus, not based on the declaration of a 'state of rebellion.'" 64 In other words, a person may be subjected to a warrantless arrest for the crime of rebellion whether or not the President has declared a state of rebellion, so long as the requisites for a valid warrantless arrest are present. It is not disputed that the President has full discretionary power to call out the armed forces and to determine the necessity for the exercise of such power. While the Court may examine whether the power was exercised within constitutional limits or in a manner constituting grave abuse of discretion, none of the petitioners here have, by way of proof, supported their assertion that the President acted without factual basis. 65 The argument that the declaration of a state of rebellion amounts to a declaration of martial law and, therefore, is a circumvention of the report requirement, is a leap of logic. There is no indication that military tribunals have replaced civil courts in the "theater of war" or that military authorities have taken over the functions of civil government. There is no allegation of curtailment of civil or political rights. There is no indication that the President has exercised judicial and legislative powers. In short, there is no illustration that the President has attempted to exercise or has exercised martial law powers. Nor by any stretch of the imagination can the declaration constitute an indirect exercise of emergency powers, which exercise depends upon a grant of Congress pursuant to Section 23 (2), Article VI of the Constitution:
Sec. 23.(1) . . . . (2)In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.

The petitions do not cite a specific instance where the President has attempted to or has exercised powers beyond her powers as Chief Executive or as Commander-in-Chief. The President, in declaring a state of rebellion and in calling out the armed forces, was merely exercising a wedding of her Chief Executive and Commander-in-Chief powers. These are purely executive powers, vested on the President by Sections 1 and 18, Article VII, as opposed to the delegated legislative powers contemplated by Section 23 (2), Article VI.

EN BANC
[G.R. No. 96541. August 24, 1993.] DEAN JOSE JOYA, CARMEN GUERRERO NAKPIL, ARMIDA SIGUION REYNA, PROF. RICARTE M. PURUGANAN, IRMA POTENCIANO, ADRIAN CRISTOBAL, INGRID SANTAMARIA, CORAZON FIEL, AMBASSADOR E. AGUILAR CRUZ, FLORENCIO R. JACELA, JR., MAURO MALANG, FEDERICO AGUILAR ALCUAZ, LUCRECIA R. URTULA, SUSANO GONZALES, STEVE SANTOS, EPHRAIM SAMSON, SOLER SANTOS, ANG KIU KOK, KERIMA POLOTAN, LUCRECIA KASILAG, LIGAYA DAVID PEREZ, VIRGILIO ALMARIO, LIWAYWAY A. ARCEO, CHARITO PLANAS, HELENA BENITEZ, ANNA MARIA L. HARPER, ROSALINDA OROSA, SUSAN CALO MEDINA, PATRICIA RUIZ, BONNIE RUIZ, NELSON NAVARRO, MANDY NAVASERO, ROMEO SALVADOR, JOSEPHINE DARANG, and PAZ VETO PLANAS, petitioners, vs. PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), CATALINO MACARAIG, JR., in his official capacity, and/or the Executive Secretary, and CHAIRMAN MATEO A.T. CAPARAS, respondents. M.M. Lazaro & Associates for petitioners. The Solicitor General for respondents. SYLLABUS 1.REMEDIAL LAW; SUPREME COURT; POWER OF JUDICIAL REVIEW; REQUISITES. The rule is settled that no question involving the constitutionality or validity of a law or governmental act may be heard and decided by the court unless there is compliance with the legal requisites for judicial inquiry, namely: that the question must be raised by the proper party; that there must be an actual case or controversy; that the question must be raised at the earliest possible opportunity; and, that the decision on the constitutional or legal question must be necessary to the determination of the case itself. 2.ID.; ID.; ID.; TERMS "LEGAL STANDING" AND "INTEREST," DEFINED; EXCEPTIONS TO THE LEGAL STANDING RULE; RELAXATION OF THE RULE NOT WARRANTED. The Court will exercise its power of judicial review only if the case is brought before it by a party who has the legal standing to raise the constitutional or legal question. "Legal standing" means a personal and substantial interest in the case

such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The term "interest" is material interest, an interest in issue and to be affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest. Moreover, the interest of the party plaintiff must be personal and not one based on a desire to vindicate the constitutional right of some third and unrelated party. There are certain instances however when this Court has allowed exceptions to the rule on legal standing, as when a citizen brings a case for mandamus to procure the enforcement of a public duty for the fulfillment of a public right recognized by the Constitution, and when a taxpayer questions the validity of a governmental act authorizing the disbursement of public funds. We need to emphasize that this Court has the discretion to take cognizance of a suit which does not satisfy the requirements of an actual case or legal standing when paramount public interest is involved. We find however that there is no such justification in the petition at bar to warrant the relaxation of the rule. 3.ID.; ACTIONS; MUST BE PROSECUTED IN THE NAME OF THE REAL PARTYIN-INTEREST. We have held that one having no right or interest to protect cannot invoke the jurisdiction of the court as party-plaintiff in an action. This is premised on Sec. 2, Rule 3, of the Rules of Court which provides that every action must be prosecuted and defended in the name of the real party-in-interest, and that all persons having interest in the subject of the action and in obtaining the relief demanded shall be joined as plaintiffs. 4.ID.; ID.; WRIT OF MANDAMUS; WHEN AVAILABLE. Although this action is also one of mandamus filed by concerned citizens, it does not fulfill the criteria for a mandamus suit. In Legaspi v. Civil Service Commission, this Court laid down the rule that a writ of mandamus may be issued to a citizen only when the public right to be enforced and the concomitant duty of the state are unequivocably set forth in the Constitution. In the case at bar, petitioners are not after the fulfillment of a positive duty required of respondent officials under the 1987 Constitution. What they seek is the enjoining of an official act because it is constitutionally infirmed. Moreover, petitioners' claim for the continued enjoyment and appreciation by the public of the artworks is at most a privilege and is unenforceable as a constitutional right in this action for mandamus. 5.ID.; ID.; CASE AT BAR CANNOT BE CONSIDERED AS A TAXPAYER'S SUIT. A taxpayer's suit can prosper only if the governmental acts being questioned involve disbursement of public funds upon the theory that the expenditure of public funds by an officer of the state for the purpose of administering an unconstitutional act constitutes a misapplication of such funds, which may be enjoined at the request of a taxpayer. Obviously, petitioners are not challenging any expenditure involving public funds but the disposition of what they allege to be public properties. It is worthy to note that petitioners

admit that the paintings and antique silverware were acquired from private sources and not with public money. 6.ID.; ID.; ISSUES RAISED ON THE PRESENT PETITION, NOW MOOT AND ACADEMIC. For a court to exercise its power of adjudication, there must be an actual case or controversy one which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution; the case must not be moot or academic or based on extra-legal or other similar considerations not cognizable by a court of justice. A case becomes moot and academic when its purpose has become stale, such as the case before us. Since the purpose of this petition for prohibition is to enjoin respondent public officials from holding the auction sale of the artworks on a particular date 11 January 1991 which is long past, the issues raised in the petition have become moot and academic. 7.ADMINISTRATIVE LAW; FINDINGS OF ADMINISTRATIVE OFFICIALS AND AGENCIES ON SPECIFIC MATTERS WHERE THEY ACQUIRED EXPERTISE, GENERALLY BINDING AND CONTROLLING. This Court takes note of the certification issued by the Director of the Museum that the Italian paintings and silverware subject of this petition do not constitute protected cultural properties and are not among those listed in the Cultural Properties Register of the National Museum. We agree with the certification of the Director of the Museum. Under the law, it is the Director of the Museum who is authorized to undertake the inventory, registration, designation or classification, with the aid of competent experts, of important cultural properties and national cultural treasures. Findings of administrative officials and agencies who have acquired expertise because their jurisdiction is confined to specific matters are generally accorded not only respect but at times even finality if such findings are supported by substantial evidence and are controlling on the reviewing authorities because of their acknowledged expertise in the fields of specialization to which they are assigned.

DECISION

BELLOSILLO, J :
p

All thirty-five (35) petitioners in this Special Civil Action for Prohibition and Mandamus with Prayer for Preliminary Injunction and/or Restraining Order seek to enjoin the Presidential Commission on Good Government (PCGG) from proceeding with the auction sale scheduled on 11 January 1991 by Christie's of New York of the Old Masters Paintings and 18th and 19th century silverware seized from Malacaang and the Metropolitan Museum of Manila and placed in the custody of the Central Bank.

The antecedents: On 9 August 1990, Mateo A.T. Caparas, then Chairman of PCGG, wrote then President Corazon C. Aquino, requesting her for authority to sign the proposed Consignment Agreement between the Republic of the Philippines through PCGG and Christie, Manson and Woods International, Inc. (Christie's of New York, or CHRISTIE'S) concerning the scheduled sale on 11 January 1991 of eighty-two (82) Old Masters Paintings and antique silverware seized from Malacaang and the Metropolitan Museum of Manila alleged to be part of the ill-gotten wealth of the late President Marcos, his relatives and cronies.
cdrep

On 14 August 1990, then President Aquino, through former Executive Secretary Catalino Macaraig, Jr., authorized Chairman Caparas to sign the Consignment Agreement allowing Christie's of New York to auction off the subject art pieces for and in behalf of the Republic of the Philippines. On 15 August 1990, PCGG through Chairman Caparas, representing the Government of the Republic of the Philippines, signed the Consignment Agreement with Christie's of New York. According to the agreement, PCGG shall consign to CHRISTIE'S for sale at public auction the eighty-two (82) Old Masters Paintings then found at the Metropolitan Museum of Manila as well as the silverware contained in seventy-one (71) cartons in the custody of the Central Bank of the Philippines, and such other property as may subsequently be identified by PCGG and accepted by CHRISTIE'S to be subject to the provisions of the agreement. 1 On 26 October 1990, the Commission on Audit (COA) through then Chairman Eufemio C. Domingo submitted to President Aquino the audit findings and observations of COA on the Consignment Agreement of 15 August 1990 to the effect that: (a) the authority of former PCGG Chairman Caparas to enter into the Consignment Agreement was of doubtful legality; (b) the contract was highly disadvantageous to the government; (c) PCGG had a poor track record in asset disposal by auction in the U.S.; and, (d) the assets subject of auction were historical relics and had cultural significance, hence, their disposal was prohibited by law. 2 On 15 November 1990, PCGG through its new Chairman David M. Castro, wrote President Aquino defending the Consignment Agreement and refuting the allegations of COA Chairman Domingo. 3 On the same date, Director of National Museum Gabriel S. Casal issued a certification that the items subject of the Consignment Agreement did not fall within the classification of protected cultural properties and did not specifically qualify as part of the Filipino cultural heritage. 4 Hence, this petition originally filed on 7 January 1991 by Dean Jose Joya, Carmen Guerrero Nakpil, Armida Siguion Reyna, Prof. Ricarte M. Puruganan, Irma Potenciano, Adrian Cristobal, Ingrid Santamaria, Corazon Fiel, Ambassador E. Aguilar Cruz, Florencio R. Jacela, Jr., Mauro Malang, Federico Aguilar Alcuaz, Lucrecia R. Urtula, Susano Gonzales, Steve Santos, Ephraim Samson,

Soler Santos, Ang Kiu Kok, Kerima Polotan, Lucrecia Kasilag, Ligaya David Perez, Virgilio Almario and Liwayway A. Arceo.

After the oral arguments of the parties on 9 January 1991, we issued immediately our resolution denying the application for preliminary injunction to restrain the scheduled sale of the artworks on the ground that petitioners had not presented a clear legal right to a restraining order and that proper parties had not been impleaded. On 11 January 1991, the sale at public auction proceeded as scheduled and the proceeds of $13,302,604.86 were turned over to the Bureau of Treasury. 5 On 5 February 1991, on motion of petitioners, the following were joined as additional petitioners: Charito Planas, Helena Benitez, Ana Maria L. Harper, Rosalinda Orosa, Susan Calo Medina, Patricia Ruiz, Bonnie Ruiz, Nelson Navarro, Mandy Navasero, Romeo Salvador, Josephine Darang and Paz Veto Planas. On the other hand, Catalino Macaraig, Jr., in his capacity as former Executive Secretary, the incumbent Executive Secretary, and Chairman Mateo A. T. Caparas were impleaded as additional respondents. Petitioners raise the following issues: (a) whether petitioners have legal standing to file the instant petition; (b) whether the Old Masters Paintings and antique silverware are embraced in the phrase "cultural treasure of the nation" which is under the protection of the state pursuant to the 1987 Constitution and/or "cultural properties" contemplated under R.A. 4846, otherwise known as "The Cultural Properties Preservation and Protection Act;" (c) whether the paintings and silverware are properties of public dominion which can be disposed of through the joint concurrence of the President and Congress; (d) whether respondent PCGG has the jurisdiction and authority to enter into an agreement with Christie's of New York for the sale of the artworks; (e) whether PCGG has complied with the due process clause and other statutory requirements for the exportation and sale of the subject items; and, (f) whether the petition has become moot and academic, and if so, whether the above issues warrant resolution from this Court.
LexLib

The issues being interrelated, they will be discussed jointly hereunder. However, before proceeding, we wish to emphasize that we admire and commend petitioners' zealous concern to keep and preserve within the country great works of art by well-known old masters. Indeed, the value of art cannot be gainsaid. For, by serving as a creative medium through which man can express his innermost thoughts and unbridled emotions while, at the same time, reflecting his deep-seated ideals, art has become a true expression of beauty, joy, and life itself. Such artistic creations give us insights into the artists' cultural heritage the historic past of the nation and the era to which they belong in their

triumphant, glorious, as well as troubled and turbulent years. It must be for this reason that the framers of the 1987 Constitution mandated in Art. XIV, Sec. 14, that it is the solemn duty of the state to "foster the preservation, enrichment, and dynamic evolution of a Filipino national culture based on the principle of unity in diversity in a climate of free artistic and intellectual expression." And, in urging this Court to grant their petition, petitioners invoke this policy of the state on the protection of the arts. But, the altruistic and noble purpose of the petition notwithstanding, there is that basic legal question which must first be resolved: whether the instant petition complies with the legal requisites for this Court to exercise its power of judicial review over this case. The rule is settled that no question involving the constitutionality or validity of a law or governmental act may be heard and decided by the court unless there is compliance with the legal requisites for judicial inquiry, namely: that the question must be raised by the proper party; that there must be an actual case or controversy; that the question must be raised at the earliest possible opportunity; and, that the decision on the constitutional or legal question must be necessary to the determination of the case itself. 6 But the most important are the first two (2) requisites. On the first requisite, we have held that one having no right or interest to protect cannot invoke the jurisdiction of the court as party-plaintiff in an action. 7 This is premised on Sec. 2, Rule 3, of the Rules of Court which provides that every action must be prosecuted and defended in the name of the real party-in-interest, and that all persons having interest in the subject of the action and in obtaining the relief demanded shall be joined as plaintiffs. The Court will exercise its power of judicial review only if the case is brought before it by a party who has the legal standing to raise the constitutional or legal question. "Legal standing" means a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The term "interest" is material interest, an interest in issue and to be affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental interest. 8 Moreover, the interest of the party plaintiff must be personal and not one based on a desire to vindicate the constitutional right of some third and unrelated party. 9 There are certain instances however when this Court has allowed exceptions to the rule on legal standing, as when a citizen brings a case for mandamus to procure the enforcement of a public duty for the fulfillment of a public right recognized by the Constitution, 10 and when a taxpayer questions the validity of a governmental act authorizing the disbursement of public funds. 11 Petitioners claim that as Filipino citizens, taxpayers and artists deeply concerned with the preservation and protection of the country's artistic wealth, they have the legal personality to restrain respondents Executive Secretary and PCGG from acting contrary to their

public duty to conserve the artistic creations as mandated by the 1987 Constitution, particularly Art. XIV, Secs. 14 to 18, on Arts and Culture, and R.A. 4846 known as "The Cultural Properties Preservation and Protection Act," governing the preservation and disposition of national and important cultural properties. Petitioners also anchor their case on the premise that the paintings and silverware are public properties collectively owned by them and by the people in general to view and enjoy as great works of art. They allege that with the unauthorized act of PCGG in selling the art pieces, petitioners have been deprived of their right to public property without due process of law in violation of the Constitution. 12 Petitioners' arguments are devoid of merit. They lack basis in fact and in law. They themselves allege that the paintings were donated by private persons from different parts of the world to the Metropolitan Museum of Manila Foundation, which is a non-profit and non-stock corporation established to promote non-Philippine arts. The foundation's chairman was former First Lady Imelda R. Marcos, while its president was Bienvenido R. Tantoco. On this basis, the ownership of these paintings legally belongs to the foundation or corporation or the members thereof, although the public has been given the opportunity to view and appreciate these paintings when they were placed on exhibit.
llcd

Similarly, as alleged in the petition, the pieces of antique silverware were given to the Marcos couple as gifts from friends and dignitaries from foreign countries on their silver wedding anniversary, an occasion personal to them. When the Marcos administration was toppled by the revolutionary government, these paintings and silverware were taken from Malacaang and the Metropolitan Museum of Manila and transferred to the Central Bank Museum. The confiscation of these properties by the Aquino administration however should not be understood to mean that the ownership of these paintings has automatically passed on to the government without complying with constitutional and statutory requirements of due process and just compensation. If these properties were already acquired by the government, any constitutional or statutory defect in their acquisition and their subsequent disposition must be raised only by the proper parties the true owners thereof whose authority to recover emanates from their proprietary rights which are protected by statutes and the Constitution. Having failed to show that they are the legal owners of the artworks or that the valued pieces have become publicly owned, petitioners do not possess any clear legal right whatsoever to question their alleged unauthorized disposition. Further, although this action is also one of mandamus filed by concerned citizens, it does not fulfill the criteria for a mandamus suit. In Legaspi v. Civil Service Commission, 13 this Court laid down the rule that a writ of mandamus may be issued to a citizen only when the public right to be enforced and the concomitant duty of the state are unequivocably set forth in the Constitution. In the case at bar, petitioners are not after the fulfillment of a positive duty required of respondent officials under the 1987 Constitution. What they seek is the enjoining of an official act because it is

constitutionally infirmed. Moreover, petitioners' claim for the continued enjoyment and appreciation by the public of the artworks is at most a privilege and is unenforceable as a constitutional right in this action for mandamus. Neither can this petition be allowed as a taxpayer's suit. Not every action filed by a taxpayer can qualify to challenge the legality of official acts done by the government. A taxpayer's suit can prosper only if the governmental acts being questioned involve disbursement of public funds upon the theory that the expenditure of public funds by an officer of the state for the purpose of administering an unconstitutional act constitutes a misapplication of such funds, which may be enjoined at the request of a taxpayer. 14 Obviously, petitioners are not challenging any expenditure involving public funds but the disposition of what they allege to be public properties. It is worthy to note that petitioners admit that the paintings and antique silverware were acquired from private sources and not with public money.

Anent the second requisite of actual controversy, petitioners argue that this case should be resolved by this Court as an exception to the rule on moot and academic cases; that although the sale of the paintings and silver has long been consummated and the possibility of retrieving the treasure trove is nil, yet the novelty and importance of the issues raised by the petition deserve this Court's attention. They submit that the resolution by the Court of the issues in this case will establish future guiding principles and doctrines on the preservation of the nation's priceless artistic and cultural possessions for the benefit of the public as a whole. 15 For a court to exercise its power of adjudication, there must be an actual case or controversy one which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution; the case must not be moot or academic or based on extra-legal or other similar considerations not cognizable by a court of justice. 16 A case becomes moot and academic when its purpose has become stale, 17 such as the case before us. Since the purpose of this petition for prohibition is to enjoin respondent public officials from holding the auction sale of the artworks on a particular date 11 January 1991 which is long past, the issues raised in the petition have become moot and academic.
LLpr

At this point, however, we need to emphasize that this Court has the discretion to take cognizance of a suit which does not satisfy the requirements of an actual case or legal standing when paramount public interest is involved. 18 We find however that there is no such justification in the petition at bar to warrant the relaxation of the rule. Section 2 of R.A. 4846, as amended by P.D. 374, declares it to be the policy of the state to preserve and protect the important cultural properties and national cultural treasures of

the nation and to safeguard their intrinsic value. As to what kind of artistic and cultural properties are considered by the State as involving public interest which should therefore be protected, the answer can be gleaned from a reading of the reasons behind the enactment of R.A. 4846:
"WHEREAS, the National Museum has the difficult task, under existing laws and regulations, of preserving and protecting the cultural properties of the nation; "WHEREAS, innumerable sites all over the country have since been excavated for cultural relics, which have passed on to private hands, representing priceless cultural treasure that properly belongs to the Filipino people as their heritage; "WHEREAS, it is perhaps impossible now to find an area in the Philippines, whether government or private property, which has not been disturbed by commercially-minded diggers and collectors, literally destroying part of our historic past; "WHEREAS, because of this the Philippines has been charged as incapable of preserving and protecting her cultural legacies; "WHEREAS, the commercialization of Philippine relics from the contact period, the Neolithic Age, and the Paleolithic Age, has reached a point perilously placing beyond reach of savants the study and reconstruction of Philippine prehistory; and "WHEREAS, it is believed that more stringent regulation on movement and a limited form of registration of important cultural properties and of designated national cultural treasures is necessary, and that regardless of the item, any cultural property exported or sold locally must be registered with the National Museum to control the deplorable situation regarding our national cultural properties and to implement the Cultural Properties Law" (Emphasis ours)

Clearly, the cultural properties of the nation which shall be under the protection of the state are classified as the "important cultural properties" and the "national cultural treasures." "Important cultural properties" are cultural properties which have been singled out from among the innumerable cultural properties as having exceptional historical and cultural significance to the Philippines but are not sufficiently outstanding to merit the classification of national cultural treasures. 19 On the other hand, a "national cultural treasure" is a unique object found locally, possessing outstanding historical, cultural, artistic and/or scientific value which is highly significant and important to this country and nation. 20 This Court takes note of the certification issued by the Director of the Museum that the Italian paintings and silverware subject of this petition do not constitute protected cultural properties and are not among those listed in the Cultural Properties Register of the National Museum.
llcd

We agree with the certification of the Director of the Museum. Under the law, it is the Director of the Museum who is authorized to undertake the inventory, registration, designation or classification, with the aid of competent experts, of important cultural properties and national cultural treasures. 21 Findings of administrative officials and agencies who have acquired expertise because their jurisdiction is confined to specific matters are generally accorded not only respect but at times even finality if such findings are supported by substantial evidence and are controlling on the reviewing authorities because of their acknowledged expertise in the fields of specialization to which they are assigned. 22 In view of the foregoing, this Court finds no compelling reason to grant the petition. Petitioners have failed to show that respondents Executive Secretary and PCGG exercised their functions with grave abuse of discretion or in excess of their jurisdiction. WHEREFORE, for lack of merit, the petition for prohibition and mandamus is DISMISSED. SO ORDERED.

EN BANC
[G.R. No. 101083. July 30, 1993.] JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and represented by their parents ANTONIO and RIZALINA OPOSA, ROBERT A NICOLE SADIUA, minor, represented by her parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD and PATRISHA, all surnamed FLORES, minors and represented by their parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor, represented by her parents SIGFRID and DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all surnamed MISA, minors and represented by their parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PASIGAN, minor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO, minor, represented by her parents JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor, represented by her parents FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO, minor, represented by her parents JOSE and ANGELA DESAMPARADO, CARLO JOAQUIN T. NARVASA, minor, represented by his parents GREGORIO II and CRISTINE CHARITY NARVASA, MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed SAENZ, minors, represented by their parents ROBERTO and AURORA SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING, minors, represented by their parents MARIO and HAYDEE KING, DAVID, FRANCISCO and THERESE VICTORIA, all surnamed ENDRIGA, minors, represented by their parents BALTAZAR and TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA, minors, represented by their parents ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all surnamed CARDAMA, minors, represented by their parents MARIO and LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL and IMEE LYN, all surnamed OPOSA, minors and represented by their parents RICARDO and MARISSA OPOSA, PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented by their parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and FRANCISCO, all surnamed BIBAL, minors, represented by their parents FRANCISCO, JR. and MILAGROS BIBAL, and THE

PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners, vs. THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the Department of Environment and Natural Resources, and THE HONORABLE ERIBERTO U. ROSARIO, Presiding Judge of the RTC, Makati, Branch 66, respondents. Oposa Law Office for petitioners. The Solicitor General for respondents. SYLLABUS 1.CONSTITUTIONAL LAW; DECLARATION OF PRINCIPLES AND STATE POLICIES; RIGHT TO A BALANCED AND HEALTHFUL ECOLOGY, CONSTRUED. The complaint focuses on one specific fundamental legal right the right to a balanced and healthful ecology which, for the first time in our nation's constitutional history, is solemnly incorporated in the fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides: "SEC. 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature." This right unites with the right to health which is provided for in the preceding section of the same article: "SEC. 15. The State shall protect and promote the right to health of the people and instill health consciousness among them." While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-perpetuation aptly and fittingly stressed by the petitioners the advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the second, the day would not be too far when all else would be lost not only for the present generation, but also for those to come generations which stand to inherit nothing but parched earth incapable of sustaining life. The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment.

2.ID.; ID.; TIMBER LICENSES; NATURE THEREOF; NON-IMPAIRMENT CLAUSE MAY NOT BE INVOKED; CASE AT BAR. all licenses may thus be revoked or rescinded by executive action. It is not a contract, property or a property right protected by the due process clause of the Constitution. In Tan vs. Director of Forestry, (125 SCRA 302, 325 [1983]) This Court held: ". . . A timber license is an instrument by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. A timber license is not a contract within the purview of the due process clause; it is only a license or privilege, which can be validly withdrawn whenever dictated by public interest or public welfare as in this case. 'A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract between the authority, federal, state, or municipal, granting it and the person to whom it is granted; neither is it property or a property right, nor does it create a vested right; nor is it taxation' (37 C.J. 168). Thus, this Court held that the granting of license does not create irrevocable rights, neither is it property or property rights (People vs. Ong Tin, 54 O.G. 7576) . . ." We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: (190 SCRA 673 684 [1990]) ". . . Timber licenses, permits and license agreements are the principal instruments by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. And it can hardly be gainsaid that they merely evidence a privilege granted by the State to qualified entities, and do not vest in the latter a permanent or irrevocable right to the particular concession area and the forest products therein. They may be validly amended, modified, replaced or rescinded by the Chief Executive when national interests so require. Thus, they are not deemed contracts within the purview of the due process of law clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302]." Since timber licenses are not contracts, the non-impairment clause, which reads: "SEC. 10. No law impairing the obligation of contracts shall be passed." In the second place, even if it is to be assumed that the same are contracts, the instant case does not involve a law or even an executive issuance declaring the cancellation or modification of existing timber licenses. Hence, the non-impairment clause cannot as yet be invoked. Nevertheless, granting further that a law has actually been passed mandating cancellations or modifications, the same cannot still be stigmatized as a violation of the non-impairment clause. This is because by its very nature and purpose, such a law could have only been passed in the exercise of the police power of the state for the purpose of advancing the right of the people to a balanced and healthful ecology, promoting their health and enhancing the general welfare. In Abe vs. Foster Wheeler Corp., (110 Phil. 198, 203 [1960]) this Court stated: "The freedom of contract, under our system of government, is not meant to be absolute. The same is understood to be subject to reasonable legislative regulation aimed at the promotion of public health, moral, safety and welfare. In other words, the constitutional guaranty of non-impairment of obligations of contract is limited by the exercise of the police power of the State, in the interest of public health, safety, moral and general welfare." The reason for this is emphatically set forth in Nebia vs. New York, (291 U.S. 502, 523, 78 L. ed. 940 947-949) quoted in Philippine American Life

Insurance Co. vs. Auditor General, (22 SCRA 135, 146-147 [1968]) to wit: "'Under our form of government the use of property and the making of contracts are normally matters of private and not of public concern. The general rule is that both shall be free of governmental interference. But neither property rights nor contract rights are absolute; for government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm. Equally fundamental with the private right is that of the public to regulate it in the common interest.'" In court, the non-impairment clause must yield to the police power of the state. (Ongsiako vs. Gamboa, 86 Phil. 50 [1950]; Abe vs. Foster Wheeler Corp., supra; Phil. American Life Insurance Co. vs. Auditor General, supra; Alalyan vs. NLRC, 24 scra 172 [1968]; Victoriano vs. Elizalde Rope Workers Union, 59 SCRA 54 [1974]; Kabiling vs. National Housing Authority, 156 SCRA 623 [1987]). 3.ID.; JUDICIAL REVIEW; NO LONGER IMPAIRED BY THE POLITICAL QUESTION DOCTRINE; RATIONALE. It must, nonetheless, be emphasized that the political question doctrine is no longer the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects executive and legislative actions from judicial inquiry or review. The second paragraph of section 1, Article VIII of the Constitution states that: "Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." Commenting on this provision in his book, Philippine Political Law, Mr. Justice Isagani A. Cruz, a distinguished member of this Court, says: "The first part of the authority represents the traditional concept of judicial power, involving the settlement of conflicting rights as conferred by law. The second part of the authority represents a broadening of judicial power to enable the courts of justice to review what was before forbidden territory, to wit, the discretion of the political departments of the government. As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to rule upon even the wisdom of the decisions of the executive and the legislature and to declare their acts invalid for lack or excess of jurisdiction because tainted with grave abuse of discretion. The catch, of course, is the meaning of 'grave abuse of discretion,' which is a very elastic phrase that can expand or contract according to the disposition of the judiciary." In Daza vs. Singson, (180 SCRA 496, 501-502 [1989]. See also Coseteng vs. Mitra, 187 SCRA 377 [1990]; Gonzales vs. Macaraig, 191 SCRA 844 [1991]; Bengzon vs. Senate Blue Ribbon Committee, 203 SCRA 767 [1991]) Mr. Justice Cruz, now speaking for this Court, noted: "In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even if we were to assume that the issue presented before us was political in nature, we would still not be precluded from resolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political question. Article VII, Section 1, of the Constitution clearly provides: . . ."

4.REMEDIAL LAW; PLEADINGS; CAUSE OF ACTION, DEFINED; CASE AT BAR. the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as clear as the DENR's duty under its mandate and by virtue of its powers and functions under E.O. No. 192 and the Administrative Code of 1987 to protect and advance the said right. A denial or violation of that right by the other who has the correlative duty or obligation to respect or protect the same gives rise to a cause of action. Petitioners maintain that the granting of the TLAs, which they claim was done with grave abuse of discretion, violated their right to a balanced and healthful ecology; hence, the full protection thereof requires that no further TLAs should be renewed or granted. A cause of action is defined as: ". . . an act or omission of one party in violation of the legal right or rights of the other; and its essential elements are legal right of the plaintiff, correlative obligation of the defendant, and act or omission of the defendant in violation of said legal right." (Marao Sugar Central Co. vs. Barrios, 79 Phil. 666 [1947]; Community Investment and Finance Corp. vs. Garcia, 88 Phil. 215 [1951]; Remitere vs. vda. de Yulo, 16 SCRA 251 [1966]; Caseas vs. Rosales, 19 SCRA 462 [1967]; Virata vs. Sandiganbayan, 202 SCRA 680 [1991]; Madrona vs. Rosal, 204 SCRA 1 [1991]. 5.ID.; ID.; MOTION TO DISMISS; LACK OF CAUSE OF ACTION, AS A GROUND; RULE; CASE AT BAR. It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails to state a cause of action, the question submitted to the court for resolution involves the sufficiency of the facts alleged in the complaint itself. No other matter should be considered; furthermore, the truth or falsity of the said allegations is beside the point for the truth thereof is deemed hypothetically admitted. The only issue to be resolved in such a case is: admitting such alleged facts to be true, may the court render a valid judgment in accordance with the prayer in the complaint? In Militante vs. Edrosolano, this Court laid down the rule that the judiciary should "exercise the utmost care and circumspection in passing upon a motion to dismiss on the ground of the absence thereof [cause of action] lest, by its failure to manifest a correct appreciation of the facts alleged and deemed hypothetically admitted, what the law grants or recognizes is effectively nullified. If that happens, there is a blot on the legal order. The law itself stands in disrepute." After a careful examination of the petitioners' complaint, We find the statements under the introductory affirmative allegations, as well as the specific averments under the subheading CAUSE OF ACTION, to be adequate enough to show, prima facie, the claimed violation of their rights. On the basis thereof, they may thus be granted, wholly or partly, the reliefs prayed for. FELICIANO, J., concurring: 1.REMEDIAL LAW; ACTIONS; LOCUS STANDI, CONSTRUED; CASE AT BAR. The Court explicitly states that petitioners have the locus standi necessary to sustain

the bringing and maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of petitioners' claim that their suit is properly regarded as a class suit. I understand locus standi to refer to the legal interest which a plaintiff must have in the subject matter of the suit. Because of the very broadness of the concept of "class" here involved membership in this "class" appears to embrace everyone living in the country whether now or in the future it appears to me that everyone who may be expected to benefit from the course of action petitioners seek to require public respondents to take, is vested with the necessary locus standi. The Court may be seen therefore to be recognizing a beneficiaries' right of action in the field of environmental protection, as against both the public administrative agency directly concerned and the private persons or entities operating in the field or sector of activity involved. Whether such a beneficiaries' right of action may be found under any and all circumstances, or whether some failure to act, in the first instance, on the part of the governmental agency concerned must be shown ("prior exhaustion of administrative remedies"), is not discussed in the decision and presumably is left for future determination in an appropriate case. 2.CONSTITUTIONAL LAW; DECLARATION OF PRINCIPLES AND STATE POLICIES; RIGHT TO "A BALANCE AND HEALTHFUL ECOLOGY"; INTERPRETATION. The Court has also declared that the complaint has alleged and focused upon "one specific fundamental legal right the right to a balanced and healthful ecology" (Decision, p. 14). There is no question that "the right to a balanced and healthful ecology" is "fundamental" and that, accordingly, it has been "constitutionalized." But although it is fundamental in character, I suggest, with very great respect, that it cannot be characterized as "specific," without doing excessive violence to language. It is in fact very difficult to fashion language more comprehensive in scope and generalized in character than a right to "a balanced and healthful ecology." The list of particular claims which can be subsumed under this rubric appears to be entirely open-ended: prevention and control of emission of toxic fumes and smoke from factories and motor vehicles; of discharge of oil, chemical effluents, garbage and raw sewage into rivers, inland and coastal waters by vessels, oil rigs, factories, mines and whole communities; of dumping of organic and inorganic wastes on open land, streets and thoroughfares; failure to rehabilitate land after strip-mining or open-pit mining; kaingin or slash-and-burn farming; destruction of fisheries, coral reefs and other living sea resources through the use of dynamite or cyanide and other chemicals; contamination of ground water resources; loss of certain species of fauna and flora; and so on. The other statements pointed out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1, Title XIV, Book IV of the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977 all appear to be formulations of policy, as general and abstract as the constitutional statements of basic policy in Article II, Sections 16 ("the right to a balanced and healthful ecology") and 15 ("the right to health"). As a matter of logic, by finding petitioners' cause of action as anchored on a legal right comprised in the constitutional statements above noted, the Court is in effect saying that Section 15

(and Section 16) of Article II of the Constitution are self-executing and judicially enforceable even in their present form. The implications of this doctrine will have to be explored in future cases; those implications are too large and far-reaching in nature even to be hinted at here. 3.ID.; RIGHT TO HEALTH; SHOULD SPECIFICALLY EXIST IN OUR CORPUS OF LAW. Justice Feliciano suggestion is simply that petitioners must, before the trial court, show a more specific legal right a right cast in language of a significantly lower order of generality than Article II (15) of the Constitution that is or may be violated by the actions, or failures to act, imputed to the public respondent by petitioners so that the trial court can validly render judgment granting all or part of the relief prayed for. To my mind, the Court should be understood as simply saying that such a more specific legal right or rights may well exist in our corpus of law, considering the general policy principles found in the Constitution and the existence of the Philippine Environment Code, and that the trial court should have given petitioners an effective opportunity so to demonstrate, instead of aborting the proceedings on a motion to dismiss. 4.REMEDIAL LAW; CIVIL PROCEDURE; CAUSE OF ACTION; LEGAL RIGHTS, AS ESSENTIAL COMPONENTS; STANDARDS. the legal right which is an essential component of a cause of action be a specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons. One is that unless the legal right claimed to have been violated or disregarded is given specification in operational terms, defendants may well be unable to defend themselves intelligently and effectively; in other words, there are due process dimensions to this matter. The second is a broadergauge consideration where a specific violation of law or applicable regulation is not alleged or proved, petitioners can be expected to fall back on the expanded conception of judicial power in the second paragraph of Section 1 of Article VIII of the Constitution which reads: "Section 1 . . . Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." When substantive standards as general as "the right to a balanced and healthy ecology" and "the right to health" are combined with remedial standards as broad ranging as "a grave abuse of discretion amounting to lack or excess of jurisdiction," the result will be, it is respectfully submitted, to propel courts into the uncharted ocean of social and economic policy making. At least in respect of the vast area of environmental protection and management, our courts have no claim to special technical competence and experience and professional qualifications. Where no specific, operable norms and standards are shown to exist, then the policy making departments the legislative and executive departments must be given a real and effective opportunity to fashion and promulgate those norms and standards, and to implement them before the courts should intervene.

DECISION

DAVIDE, JR., J :
p

In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology which the petitioners dramatically associate with the twin concepts of "inter-generational responsibility" and "inter-generational justice." Specifically, it touches on the issue of whether the said petitioners have a cause of action to "prevent the misappropriation or impairment" of Philippine rainforests and "arrest the unabated hemorrhage of the country's vital life-support systems and continued rape of Mother Earth."

The controversy has its genesis in Civil Case No. 90-777 which was filed before Branch 66 (Makati, Metro Manila) of the Regional Trial Court (RTC), National Capital Judicial Region. The principal plaintiffs therein, now the principal petitioners, are all minors duly represented and joined by their respective parents. Impleaded as an additional plaintiff is the Philippine Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit corporation organized for the purpose of, inter alia, engaging in concerted action geared for the protection of our environment and natural resources. The original defendant was the Honorable Fulgencio S. Factoran, Jr., then Secretary of the Department of Environment and Natural Resources (DENR). His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala, was subsequently ordered upon proper motion by the petitioners. 1 The complaint 2 was instituted as a taxpayers' class suit 3 and alleges that the plaintiffs "are all citizens of the Republic of the Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of the natural resource treasure that is the country's virgin tropical rainforests." The same was filed for themselves and others who are equally concerned about the preservation of said resource but are "so numerous that it is impracticable to bring them all before the Court." The minors further asseverate that they "represent their generation as well as generations yet unborn." 4 Consequently, it is prayed for that judgment be rendered:
". . . ordering defendant, his agents, representatives and other persons acting in his behalf to (1)Cancel all existing timber license agreements in the country; (2)Cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements."

and granting the plaintiffs ". . . such other reliefs just and equitable under the premises." 5

The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has a land area of thirty million (30,000,000) hectares and is endowed with rich, lush and verdant rainforests in which varied, rare and unique species of flora and fauna may be found; these rainforests contain a genetic, biological and chemical pool which is irreplaceable; they are also the habitat of indigenous Philippine cultures which have existed, endured and flourished since time immemorial; scientific evidence reveals that in order to maintain a balanced and healthful ecology, the country's land area should be utilized on the basis of a ratio of fifty-four per cent (54%) for forest cover and fortysix per cent (46%) for agricultural, residential, industrial, commercial and other uses; the distortion and disturbance of this balance as a consequence of deforestation have resulted in a host of environmental tragedies, such as (a) water shortages resulting from the drying up of the water table, otherwise known as the "aquifer," as well as of rivers, brooks and streams, (b) salinization of the water table as a result of the intrusion therein of salt water, incontrovertible examples of which may be found in the island of Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion and the consequential loss of soil fertility and agricultural productivity, with the volume of soil eroded estimated at one billion (1,000,000,000) cubic meters per annum approximately the size of the entire island of Catanduanes, (d) the endangering and extinction of the country's unique, rare and varied flora and fauna, (e) the disturbance and dislocation of cultural communities, including the disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and consequential destruction of corals and other aquatic life leading to a critical reduction in marine resource productivity, (g) recurrent spells of drought as is presently experienced by the entire country, (h) increasing velocity of typhoon winds which result from the absence of windbreakers, (i) the flooding of lowlands and agricultural plains arising from the absence of the absorbent mechanism of forests, (j) the siltation and shortening of the lifespan of multi-billion peso dams constructed and operated for the purpose of supplying water for domestic uses, irrigation and the generation of electric power, and (k) the reduction of the earth's capacity to process carbon dioxide gases which has led to perplexing and catastrophic climatic changes such as the phenomenon of global warming, otherwise known as the "greenhouse effect." Plaintiffs further assert that the adverse and detrimental consequences of continued deforestation are so capable of unquestionable demonstration that the same may be submitted as a matter of judicial notice. This notwithstanding, they expressed their intention to present expert witnesses as well as documentary, photographic and film evidence in the course of the trial. As their cause of action, they specifically allege that:
"CAUSE OF ACTION 7.Plaintiffs replead by reference the foregoing allegations.

8.Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of rainforests constituting roughly 53% of the country's land mass. 9.Satellite images taken in 1987 reveal that there remained no more than 1.2 million hectares of said rainforests or four per cent (4.0%) of the country's land area. 10.More recent surveys reveal that a mere 850,000 hectares of virgin old-growth rainforests are left, barely 2.8% of the entire land mass of the Philippine archipelago and about 3.0 million hectares of immature and uneconomical secondary growth forests. 11.Public records reveal that defendant's predecessors have granted timber license agreements ('TLA's') to various corporations to cut the aggregate area of 3.89 million hectares for commercial logging purposes. A copy of the TLA holders and the corresponding areas covered is hereto attached as Annex 'A'. 12.At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25 hectares per hour nighttime, Saturdays, Sundays and holidays included the Philippines will be bereft of forest resources after the end of this ensuing decade, if not earlier. 13.The adverse effects, disastrous consequences, serious injury and irreparable damage of this continued trend of deforestation to the plaintiff minors' generation and to generations yet unborn are evident and incontrovertible. As a matter of fact, the environmental damages enumerated in paragraph 6 hereof are already being felt, experienced and suffered by the generation of plaintiff adults. 14.The continued allowance by defendant of TLA holders to cut and deforest the remaining forest stands will work great damage and irreparable injury to plaintiffs especially plaintiff minors and their successors who may never see, use, benefit from and enjoy this rare and unique natural resource treasure. This act of defendant constitutes a misappropriation and/or impairment of the natural resource property he holds in trust for the benefit of plaintiff minors and succeeding generations. 15.Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and are entitled to protection by the State in its capacity as the parens patriae. 16.Plaintiffs have exhausted all administrative remedies with the defendant's office. On March 2, 1990, plaintiffs served upon defendant a final demand to cancel all logging permits in the country.

A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex 'B'. 17.Defendant, however, fails and refuses to cancel the existing TLA's, to the continuing serious damage and extreme prejudice of plaintiffs. 18.The continued failure and refusal by defendant to cancel the TLA's is an act violative of the rights of plaintiffs, especially plaintiff minors who may be left with a country that is desertified (sic), bare, barren and devoid of the wonderful flora, fauna and indigenous cultures which the Philippines has been abundantly blessed with. 19.Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the public policy enunciated in the Philippine Environmental Policy which, in pertinent part, states that it is the policy of the State '(a)to create, develop, maintain and improve conditions under which man and nature can thrive in productive and enjoyable harmony with each other; '(b)to fulfill the social, economic and other requirements of present and future generations of Filipinos and; '(c)to ensure the attainment of an environmental quality that is conducive to a life of dignity and well-being'. (P.D. 1151, 6 June 1977). 20.Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is contradictory to the Constitutional policy of the State to a.effect 'a more equitable distribution of opportunities, income and wealth' and 'make full and efficient use of natural resources (sic).' (Section 1, Article XII of the Constitution); b.'protect the nation's marine wealth.' (Section 2, ibid); c.'conserve and promote the nation's cultural heritage and resources (sic).' (Section 14, Article XIV, id.); d.'protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.' (Section 16, Article II, id.) 21.Finally, defendant's act is contrary to the highest law of humankind the natural law and violative of plaintiffs' right to self-preservation and perpetuation.

22.There is no other plain, speedy and adequate remedy in law other than the instant action to arrest the unabated hemorrhage of the country's vital lifesupport systems and continued rape of Mother Earth." 6

On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint based on two (2) grounds, namely: (1) the plaintiffs have no cause of action against him and (2) the issue raised by the plaintiffs is a political question which properly pertains to the legislative or executive branches of Government. In their 12 July 1990 Opposition to the Motion, the petitioners maintain that (1) the complaint shows a clear and unmistakable cause of action, (2) the motion is dilatory and (3) the action presents a justiciable question as it involves the defendant's abuse of discretion.

On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss. 7 In the said order, not only was the defendant's claim that the complaint states no cause of action against him and that it raises a political question sustained, the respondent Judge further ruled that the granting of the reliefs prayed for would result in the impairment of contracts which is prohibited by the fundamental law of the land. Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of Court and ask this Court to rescind and set aside the dismissal order on the ground that the respondent Judge gravely abused his discretion in dismissing the action. Again, the parents of the plaintiffs-minors not only represent their children, but have also joined the latter in this case. 8 On 14 May 1992, We resolved to give due course to the petition and required the parties to submit their respective Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf of the respondents and the petitioners filed a reply thereto. Petitioners contend that the complaint clearly and unmistakably states a cause of action as it contains sufficient allegations concerning their right to a sound environment based on Articles 19, 20 and 21 of the Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy), Section 16, Article II of the 1987 Constitution recognizing the right of the people to a balanced and healthful ecology, the concept of generational genocide in Criminal Law and the concept of man's inalienable right to selfpreservation and self-perpetuation embodied in natural law. Petitioners likewise rely on the respondent's correlative obligation, per Section 4 of E.O. No. 192, the safeguard the people's right to a healthful environment.

It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in granting Timber License Agreements (TLAs) to cover more areas for logging than what is available involves a judicial question. Anent the invocation by the respondent Judge of the Constitution's non-impairment clause, petitioners maintain that the same does not apply in this case because TLAs are not contracts. They likewise submit that even if TLAs may be considered protected by the said clause, it is well settled that they may still be revoked by the State when public interest so requires. On the other hand, the respondents aver that the petitioners failed to allege in their complaint a specific legal right violated by the respondent Secretary for which any relief is provided by law. They see nothing in the complaint but vague and nebulous allegations concerning an "environmental right" which supposedly entitles the petitioners to the "protection by the state in its capacity as parens patriae." Such allegations, according to them, do not reveal a valid cause of action. They then reiterate the theory that the question of whether logging should be permitted in the country is a political question which should be properly addressed to the executive or legislative branches of Government. They therefore assert that the petitioners' recourse is not to file an action in court, but to lobby before Congress for the passage of a bill that would ban logging totally. As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done by the State without due process of law. Once issued, a TLA remains effective for a certain period of time usually for twenty-five (25) years. During its effectivity, the same can neither be revised nor cancelled unless the holder has been found, after due notice and hearing, to have violated the terms of the agreement or other forestry laws and regulations. Petitioners' proposition to have all the TLAs indiscriminately cancelled without the requisite hearing would be violative of the requirements of due process. Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil Case No. 90-777 as a class suit. The original defendant and the present respondents did not take issue with this matter. Nevertheless, We hereby rule that the said civil case is indeed a class suit. The subject matter of the complaint is of common and general interest not just to several, but to all citizens of the Philippines. Consequently, since the parties are so numerous, it becomes impracticable, if not totally impossible, to bring all of them before the court. We likewise declare that the plaintiffs therein are numerous and representative enough to ensure the full protection of all concerned interests. Hence, all the requisites for the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of Court are present both in the said civil case and in the instant petition, the latter being but an incident to the former.

This case, however, has a special and novel element. Petitioners minors assert that they represent their generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as hereinafter expounded, considers the "rhythm and harmony of nature." Nature means the created world in its entirety. 9 Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that their exploration, development and utilization be equitably accessible to the present as well as future generations. 10 Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors' assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come. The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits of the petition. After a careful perusal of the complaint in question and a meticulous consideration and evaluation of the issues raised and arguments adduced by the parties, We do not hesitate to find for the petitioners and rule against the respondent Judge's challenged order for having been issued with grave abuse of discretion amounting to lack of jurisdiction. The pertinent portions of the said order read as follows:
xxx xxx xxx "After a careful and circumspect evaluation of the Complaint, the Court cannot help but agree with the defendant. For although we believe that plaintiffs have but the noblest of all intentions, it (sic) fell short of alleging, with sufficient definiteness, a specific legal right they are seeking to enforce and protect, or a specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the Court notes that the Complaint is replete with vague assumptions and vague conclusions based on unverified data. In fine, plaintiffs fail to state a cause of action in its Complaint against the herein defendant. Furthermore, the Court firmly believes that the matter before it, being impressed with political color and involving a matter of public policy, may not be taken cognizance of by this Court without doing violence to the sacred principle of 'Separation of Powers' of the three (3) co-equal branches of the Government.

The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country and to cease and desist from receiving, accepting, processing renewing or approving new timber license agreements. For to do otherwise would amount to 'impairment of contracts' abhored (sic) by the fundamental law." 11

We do not agree with the trial court's conclusion that the plaintiffs failed to allege with sufficient definiteness a specific legal right involved or a specific legal wrong committed, and that the complaint is replete with vague assumptions and conclusions based on unverified data. A reading of the complaint itself belies these conclusions. The complaint focuses on one specific fundamental legal right the right to a balanced and healthful ecology which, for the first time in our nation's constitutional history, is solemnly incorporated in the fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides:
"SEC. 16.The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature."

This right unites with the right to health which is provided for in the preceding section of the same article:
"SEC. 15.The State shall protect and promote the right to health of the people and instill health consciousness among them."

While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-perpetuation aptly and fittingly stressed by the petitioners the advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the second, the day would not be too far when all else would be lost not only for the present generation, but also for those to come generations which stand to inherit nothing but parched earth incapable of sustaining life.

The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment. During the debates on this right in one of the plenary sessions of the 1986 Constitutional Commission, the following exchange transpired between Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna who sponsored the section in question:
"MR. VILLACORTA: Does this section mandate the State to provide sanctions against all forms of pollution air, water and noise pollution? MR. AZCUNA: Yes, Madam President. The right to healthful (sic) environment necessarily carries with it the correlative duty of not impairing the same and, therefore, sanctions may be provided for impairment of environmental balance." 12

The said right implies, among many other things, the judicious management and conservation of the country's forests. Without such forests, the ecological or environmental balance would be irreversibly disrupted. Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as well as the other related provisions of the Constitution concerning the conservation, development and utilization of the country's natural resources, 13 then President Corazon C. Aquino promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of which expressly mandates that the Department of Environment and Natural Resources "shall be the primary government agency responsible for the conservation, management, development and proper use of the country's environment and natural resources, specifically forest and grazing lands, mineral resources, including those in reservation and watershed areas, and lands of the public domain, as well as the licensing and regulation of all natural resources as may be provided for by law in order to ensure equitable sharing of the benefits derived therefrom for the welfare of the present and future generations of Filipinos." Section 3 thereof makes the following statement of policy:
"SEC. 3.Declaration of Policy. It is hereby declared the policy of the State to ensure the sustainable use, development, management, renewal, and conservation of the country's forest, mineral, land, off-shore areas and other natural resources, including the protection and enhancement of the quality of the environment, and equitable access of the different segments of the population to the development and use of the country's natural resources, not only for the present generation but for future generations as well. It is also the policy of the state to recognize and apply a true value system including social and

environmental cost implications relative to their utilization; development and conservation of our natural resources."

This policy declaration is substantially re-stated in Title XIV, Book IV of the Administrative Code of 1987, 15 specifically in Section 1 thereof which reads:
"SEC. 1.Declaration of Policy. (1) The State shall ensure, for the benefit of the Filipino people, the full exploration and development as well as the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources, consistent with the necessity of maintaining a sound ecological balance and protecting and enhancing the quality of the environment and the objective of making the exploration, development and utilization of such natural resources equitably accessible to the different segments of the present as well as future generations. (2)The State shall likewise recognize and apply a true value system that takes into account social and environmental cost implications relative to the utilization, development and conservation of our natural resources."

The above provision stresses "the necessity of maintaining a sound ecological balance and protecting and enhancing the quality of the environment." Section 2 of the same Title, on the other hand, specifically speaks of the mandate of the DENR; however, it makes particular reference to the fact of the agency's being subject to law and higher authority. Said section provides:
"SEC. 2.Mandate. (1) The Department of Environment and Natural Resources shall be primarily responsible for the implementation of the foregoing policy. (2)It shall, subject to law and higher authority, be in charge of carrying out the State's constitutional mandate to control and supervise the exploration, development, utilization, and conservation of the country's natural resources."

Both E.O. No. 192 and the Administrative Code of 1987 have set the objectives which will serve as the bases for policy formulation, and have defined the powers and functions of the DENR. It may, however, be recalled that even before the ratification of the 1987 Constitution, specific statutes already paid special attention to the "environmental right" of the present and future generations. On 6 June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment Code) were issued. The former "declared a continuing policy of the State (a) to create, develop, maintain and improve conditions under which man and nature can thrive in productive and enjoyable harmony with each other, (b) to fulfill the social, economic and other requirements of present and

future generations of Filipinos, and (c) to insure the attainment of an environmental quality that is conducive to a life of dignity and well-being." 16 As its goal, it speaks of the "responsibilities of each generation as trustee and guardian of the environment for succeeding generations." 17 The latter statute, on the other hand, gave flesh to the said policy. Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as clear as the DENR's duty under its mandate and by virtue of its powers and functions under E.O. No. 192 and the Administrative Code of 1987 to protect and advance the said right. A denial or violation of that right by the other who has the correlative duty or obligation to respect or protect the same gives rise to a cause of action. Petitioners maintain that the granting of the TLAs, which they claim was done with grave abuse of discretion, violated their right to a balanced and healthful ecology; hence, the full protection thereof requires that no further TLAs should be renewed or granted. A cause of action is defined as:
". . . an act or omission of one party in violation of the legal right or rights of the other; and its essential elements are legal right of the plaintiff, correlative obligation of the defendant, and act or omission of the defendant in violation of said legal right." 18

It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails to state a cause of action, 19 the question submitted to the court for resolution involves the sufficiency of the facts alleged in the complaint itself. No other matter should be considered; furthermore, the truth or falsity of the said allegations is beside the point for the truth thereof is deemed hypothetically admitted. The only issue to be resolved in such a case is: admitting such alleged facts to be true, may the court render a valid judgment in accordance with the prayer in the complaint? 20 In Militante vs. Edrosolano, 21 this Court laid down the rule that the judiciary should "exercise the utmost care and circumspection in passing upon a motion to dismiss on the ground of the absence thereof [cause of action] lest, by its failure to manifest a correct appreciation of the facts alleged and deemed hypothetically admitted, what the law grants or recognizes is effectively nullified. If that happens, there is a blot on the legal order. The law itself stands in disrepute." After a careful examination of the petitioners' complaint, We find the statements under the introductory affirmative allegations, as well as the specific averments under the subheading CAUSE OF ACTION, to be adequate enough to show, prima facie, the claimed violation of their rights. On the basis thereof, they may thus be granted, wholly or partly, the reliefs prayed for. It bears stressing, however, that insofar as the

cancellation of the TLAs is concerned, there is the need to implead, as party defendants, the grantees thereof for they are indispensable parties. The foregoing considered, Civil Case No. 90-777 cannot be said to raise a political question. Policy formulation or determination by the executive or legislative branches of Government is not squarely put in issue. What is principally involved is the enforcement of a right vis-a-vis policies already formulated and expressed in legislation. It must, nonetheless, be emphasized that the political question doctrine is no longer the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects executive and legislative actions from judicial inquiry or review. The second paragraph of section 1, Article VIII of the Constitution states that:
"Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government."

Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A. Cruz, a distinguished member of this Court, says:
"The first part of the authority represents the traditional concept of judicial power, involving the settlement of conflicting rights as conferred by law. The second part of the authority represents a broadening of judicial power to enable the courts of justice to review what was before forbidden territory, to wit, the discretion of the political departments of the government.

As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to rule upon even the wisdom of the decisions of the executive and the legislature and to declare their acts invalid for lack or excess of jurisdiction because tainted with grave abuse of discretion. The catch, of course, is the meaning of 'grave abuse of discretion,' which is a very elastic phrase that can expand or contract according to the disposition of the judiciary."

In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:
"In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even if we were to assume that the issue presented before us was political in nature, we would still not be precluded from resolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political question. Article VII, Section 1, of the Constitution clearly provides: . . ."

The last ground invoked by the trial court in dismissing the complaint is the nonimpairment of contracts clause found in the Constitution. The court a quo declared that:
"The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country and to cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements. For to do otherwise would amount to 'impairment of contracts' abhored (sic) by the fundamental law." 24

We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping pronouncement. In the first place, the respondent Secretary did not, for obvious reasons, even invoke in his motion to dismiss the non-impairment clause. If he had done so, he would have acted with utmost infidelity to the Government by providing undue and unwarranted benefits and advantages to the timber license holders because he would have forever bound the Government to strictly respect the said licenses according to their terms and conditions regardless of changes in policy and the demands of public interest and welfare. He was aware that as correctly pointed out by the petitioners, into every timber license must be read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides:
". . . Provided, That when the national interest so requires, the President may amend, modify, replace or rescind any contract, concession, permit, licenses or any other form of privilege granted herein . . ."

Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract, property or a property right protected by the due process clause of the Constitution. In Tan vs. Director of Forestry, 25 this Court held:
". . . A timber license is an instrument by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. A timber license is not a contract within the purview of the due process clause; it is only a license or privilege, which can be validly withdrawn whenever dictated by public interest or public welfare as in this case. 'A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract between the authority, federal, state, or municipal, granting it and the person to whom it is granted; neither is it property or a property right, nor does it create a vested right; nor is it taxation' (37 C.J. 168). Thus, this Court held that the granting of license does not create irrevocable rights, neither is it property or property rights (People vs. Ong Tin, 54 O.G. 7576) . . ."

We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: 26

". . . Timber licenses, permits and license agreements are the principal instruments by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. And it can hardly be gainsaid that they merely evidence a privilege granted by the State to qualified entities, and do not vest in the latter a permanent or irrevocable right to the particular concession area and the forest products therein. They may be validly amended, modified, replaced or rescinded by the Chief Executive when national interests so require. Thus, they are not deemed contracts within the purview of the due process of law clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302]."

Since timber licenses are not contracts, the non-impairment clause, which reads:
"SEC. 10.No law impairing the obligation of contracts shall be passed." 27

cannot be invoked. In the second place, even if it is to be assumed that the same are contracts, the instant case does not involve a law or even an executive issuance declaring the cancellation or modification of existing timber licenses. Hence, the non-impairment clause cannot as yet be invoked. Nevertheless, granting further that a law has actually been passed mandating cancellations or modifications, the same cannot still be stigmatized as a violation of the non-impairment clause. This is because by its very nature and purpose, such a law could have only been passed in the exercise of the police power of the state for the purpose of advancing the right of the people to a balanced and healthful ecology, promoting their health and enhancing the general welfare. In Abe vs. Foster Wheeler Corp., 28 this Court stated:
"The freedom of contract, under our system of government, is not meant to be absolute. The same is understood to be subject to reasonable legislative regulation aimed at the promotion of public health, moral, safety and welfare. In other words, the constitutional guaranty of non-impairment of obligations of contract is limited by the exercise of the police power of the State, in the interest of public health, safety, moral and general welfare."

The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine American Life Insurance Co. vs. Auditor General, 30 to wit:
" 'Under our form of government the use of property and the making of contracts are normally matters of private and not of public concern. The general rule is that both shall be free of governmental interference. But neither property rights nor contract rights are absolute; for government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his

freedom of contract to work them harm. Equally fundamental with the private right is that of the public to regulate it in the common interest.' "

In court, the non-impairment clause must yield to the police power of the state. 31 Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply with respect to the prayer to enjoin the respondent Secretary from receiving, accepting, processing, renewing or approving new timber licenses for, save in cases of renewal, no contract would have as of yet existed in the other instances. Moreover, with respect to renewal, the holder is not entitled to it as a matter of right. WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby set aside. The petitioners may therefore amend their complaint to implead as defendants the holders or grantees of the questioned timber license agreements. No pronouncement as to costs. SO ORDERED.

EN BANC
[G.R. No. 155001. May 5, 2003.] DEMOSTHENES P. AGAN, JR., JOSEPH B. CATAHAN, JOSE MARI B. REUNILLA, MANUEL ANTONIO B. BOE, MAMERTO S. CLARA, REUEL E. DIMALANTA, MORY V. DOMALAON, CONRADO G. DIMAANO, LOLITA R. HIZON, REMEDIOS P. ADOLFO, BIENVENIDO C. HILARIO, MIASCOR WORKERS UNION-NATIONAL LABOR UNION (MWU-NLU), and PHILIPPINE AIRLINES EMPLOYEES ASSOCIATION (PALEA), petitioners, vs. PHILIPPINE INTERNATIONAL AIR TERMINALS CO., INC., MANILA INTERNATIONAL AIRPORT AUTHORITY, DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS and SECRETARY LEANDRO M. MENDOZA, in his capacity as Head of the Department of Transportation and Communications, respondents. MIASCOR GROUNDHANDLING CORPORATION, DNATAWINGS AVIATION SYSTEMS CORPORATION, MACROASIAEUREST SERVICES, INC., MACROASIA-MENZIES AIRPORT SERVICES CORPORATION, MIASCOR CATERING SERVICES CORPORATION, MIASCOR AIRCRAFT MAINTENANCE CORPORATION, and MIASCOR LOGISTICS CORPORATION, petitioners-in-intervention, [G.R. No. 155547. May 5, 2003.] SALACNIB F. BATERINA, CLAVEL A. MARTINEZ and CONSTANTINO G. JARAULA, petitioners, vs. PHILIPPINE INTERNATIONAL AIR TERMINALS CO., INC., MANILA INTERNATIONAL AIRPORT AUTHORITY, DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS, DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS, SECRETARY LEANDRO M. MENDOZA, in his capacity as Head of the Department of Transportation and Communications, and SECRETARY SIMEON A. DATUMANONG, in his capacity as Head of the Department of Public Works and Highways, respondents, JACINTO V. PARAS, RAFAEL P. NANTES, EDUARDO C. ZIALCITA, WILLY BUYSON VILLARAMA, PROSPERO C.

NOGRALES, PROSPERO A. PICHAY, JR., HARLIN CAST ABAYON, and BENASING O. MACARANBON, respondentsintervenors, [G.R. No. 155661. May 5, 2003.] CEFERINO C. LOPEZ, RAMON M. SALES, ALFREDO B. VALENCIA, MA. TERESA V. GAERLAN, LEONARDO DE LA ROSA, DINA C. DE LEON, VIRGIE CATAMIN RONALD SCHLOBOM, ANGELITO SANTOS, MA. LUISA M. PALCON and SAMAHANG MANGGAGAWA SA PALIPARAN NG PILIPINAS (SMPP), petitioners, vs. PHILIPPINE INTERNATIONAL AIR TERMINALS CO., INC., MANILA INTERNATIONAL AIRPORT AUTHORITY, DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS, SECRETARY LEANDRO M. MENDOZA, in his capacity as Head of the Department of Transportation and Communications, respondents. Salonga Hernandez & Mendoza for petitioners in G.R. No. 155001. Jose A. Bernas for petitioners in G.R. No. 155547. Erwin P. Erfe for petitioners in G.R. No. 155661. Jose Espinas for MWU-NLU. Jose E. Marigondon for PALEA. Angara Abello Concepcion Regala and Cruz for petitioners-in-intervention. Arthur D. Lim Law Office for Asia's Emerging Dragon etc. Romulo Mabanta Buenaventura Sayoc & Delos Angeles, Chavez & Laureta & Associate and Moises Tolentino, Jr. for PIATCO. The Office of the Government Corporate Counsel for MIAA. The Solicitor General for public respondents. Mario E. Ongkiko, Fernando F. Manas, Jr. Raymund C. de Castro & Angelito S. Lazaro, Jr. for respondents-intervenors.

SYNOPSIS On October 5, 1994, Asia's Emerging Dragon Corp. (AEDC) submitted an unsolicited proposal to the Government for the development of Ninoy Aquino International Airport International Passenger Terminal III (NAIA IPT III) under a build-operate-and-transfer arrangement pursuant to RA 6957, as amended. It was endorsed to the National Economic Development Authority (NEDA), which, in turn, reviewed and approved it for bidding. The Paircargo Consortium was the only company that submitted a competitive proposal. AEDC questioned, among others, the financial capability of Paircargo Consortium. However, the Pre-Qualification Bids and Awards Committee (PBAC) had prequalified the Paircargo Consortium to undertake the project. Later, Paircargo Consortium incorporated into Philippine International Airport Terminals Co., (PIATCO). And for failure of AEDC to match the price proposal submitted by PIATCO, the project was awarded to PIATCO. On July 12, 1997, the Government signed the 1997 Concession Agreement. Thereafter, the Amended and Restated Concession Agreement (ARCA) and three Supplements thereto were signed by the Government and PIATCO. Consequently, the workers of the international airline service providers, claiming that they stand to lose their employment upon the implementation of the said agreements, filed before this Court a petition for prohibition docketed as G.R. No. 155001. Later, the service providers joined their cause. Congressmen Salacnib Baterina, Clavel Martinez and Constantino Jaraula, alleging that the said contracts compelled government expenditure without appropriation, filed a similar petition docketed as G.R. No. 155547. And several employees of the MIAA likewise filed a petition docketed as G.R. No. 155661 assailing the legality of these agreements. The Court ruled that in accordance with the provisions of R.A. No. 337, as amended, the maximum amount that Security Bank, as one of the members of the Paircargo Consortium could validly invest, is only 15% of its entire net worth. The total net worth, therefore of the Paircargo Consortium, after considering the maximum amounts that may be validly invested by each of its members, is only 6.08% of the project cost, which substantially less than the prescribed minimum equity investment which is 30% of the project cost. Thus, the award of the contract by the PBAC to the Paircargo Consortium, a disqualified bidder, is null and void. As to the validity of the agreements, the ARCA obligates the Government to pay for all loans, advances and obligations arising out of financial facilities extended to PIATCO for the implementation of the NAIA IPT III project should PIATCO default in its loan obligations to its Senior Lenders and the latter fails to appoint a qualified nominee or transferee. This in effect would make the Government liable for PIATCO's loans should the conditions set forth in the ARCA arise. This is a form of direct government guarantee and to declare the PIATCO contracts valid despite the clear statutory prohibitions against a direct government guarantee would only make a mockery of that the BOT Law seeks to prevent. The Court also ruled that the operation of an international passenger airport

terminal is no doubt an undertaking imbued with public interest. Thus, the privilege given to PIATCO is subject to reasonable regulation and supervision by the Government through the MIAA. Another thing, PIATCO, by the mere expedient of claiming an exclusive right to operate, cannot require the Government to break its contractual obligations to the service providers. Accordingly, the 1997 Concession Agreement, the Amended and Restated Concession Agreement and the Supplements thereto were set aside for being null and void.
TCEaDI

SYLLABUS 1.REMEDIAL LAW; CIVIL PROCEDURE; PARTIES; INTEREST OF PERSON ASSAILING THE CONSTITUTIONALITY OF A STATUTE MUST BE DIRECT AND PERSONAL. The question on legal standing is whether such parties have "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Accordingly, it has been held that the interest of a person assailing the constitutionality of a statute must be direct and personal. He must be able, to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of. 2.ID.; ID.; ID.; ID.; FINANCIAL PREJUDICE IS A LEGITIMATE INTEREST SUFFICIENT TO CONFER THE REQUISITE STANDING. [P]etitioners have a direct and substantial interest to protect by reason of the implementation of the PIATCO Contracts. They stand to lose their source of livelihood, a property right which is zealously protected by the Constitution. Moreover, subsisting concession agreements between MIAA and petitioners-intervenors and service contracts between international airlines and petitioners-intervenors stand to be nullified or terminated by the operation of the NAIA IPT III under the PIATCO Contracts. The financial prejudice brought about by the PIATCO Contracts on petitioners and petitioners-intervenors in these cases are legitimate interests sufficient to confer on them the requisite standing to file the instant petitions. 3.ID.; ID.; ID.; ID.; COURT MUST BE MORE LIBERAL IN DETERMINING WHETHER THE PETITIONERS HAVE LOCUS STANDI TO FILE A PETITION. Standing is a peculiar concept in constitutional law because in some cases, suits are not brought by parties who have been personally injured by the operation of a law or any other government act but by concerned citizens, taxpayers or voters who actually sue in the public interest. Although we are not unmindful of the cases of Imus Electric Co. v.

Municipality of Imus and Gonzales v. Raquiza wherein this Court held that appropriation must be made only on amounts immediately demandable, public interest demands that we take a more liberal view in determining whether the petitioners suing as legislators, taxpayers and citizens have locus standi to file the instant petition. In Kilosbayan, Inc. v. Guingona, this Court held "[i]n line with the liberal policy of this Court on locus standi, ordinary taxpayers, members of Congress, and even association of planters, and nonprofit civic organizations were allowed to initiate and prosecute actions before this Court to question the constitutionality or validity of laws, acts, decisions, rulings, or orders of various government agencies or instrumentalities," Further, "insofar as taxpayers' suits are concerned . . . (this Court) is not devoid of discretion as to whether or not it should be entertained." As such ". . . even if, strictly speaking, they [the petitioners] are not covered by the definition, it is still within the wide discretion of the Court to waive the requirement and so remove the impediment to its addressing and resolving the serious constitutional questions raised." In view of the serious legal questions involved and their impact on public interest, we resolve to grant standing to the petitioners.

4.ID.; ID.; JURISDICTION; HIERARCHY OF COURTS MAY BE RELAXED WHEN THE REDRESS DESIRED CANNOT BE OBTAINED IN THE APPROPRIATE COURTS. The rule on hierarchy of courts will not also prevent this Court from assuming jurisdiction over the cases at bar. The said rule may be relaxed when the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances justify availment of a remedy within and calling for the exercise of this Court's primary jurisdiction.
ATaDHC

5.ID.; ID.; ID.; PROCEDURAL BARS MAY BE LOWERED TO GIVE WAY FOR THE SPEEDY DISPOSITION OF CASES OF TRANSCENDENTAL IMPORTANCE. It is easy to discern that exceptional circumstances exist in the cases at bar that call for the relaxation of the rule. Both petitioners and respondents agree that these cases are of transcendental importance as they involve the construction and operation of the country's premier international airport. Moreover, the crucial issues submitted for resolution are of first impression and they entail the proper legal interpretation of key provisions of the Constitution, the BOT Law and its Implementing Rules and Regulations. Thus, considering the nature of the controversy before the Court, procedural bars may be lowered to give way for the speedy disposition of the instant cases. 6.CIVIL LAW; OBLIGATIONS AND CONTRACTS; ARBITRATION CLAUSE; NOT BINDING TO PERSONS NOT PARTIES TO THE CONTRACT. It is established that petitioners in the present cases who have presented legitimate interests in the resolution of the controversy are not parties to the PIATCO Contracts. Accordingly, they cannot be bound by the arbitration clause provided for in the ARCA and hence, cannot be compelled to submit to arbitration proceedings. A speedy and decisive resolution of all

the critical issues in the present controversy, including those raised by petitioners, cannot be made before an arbitral tribunal. The object of arbitration is precisely to allow an expeditious determination of a dispute. This objective would not be met if this Court were to allow the parties to settle the cases by arbitration as there are certain issues involving non-parties to the PIATCO Contracts which the arbitral tribunal will not be equipped to resolve. 7.POLITICAL LAW; ADMINISTRATIVE LAW; REPUBLIC ACT NO. 6957 (BUILDOPERATE-AND-TRANSFER or BOT LAW); CONTRACT SHALL BE AWARDED TO THE BIDDER WHO SATISFIED THE. MINIMUM FINANCIAL, TECHNICAL, ORGANIZATIONAL AND LEGAL STANDARDS REQUIRED BY LAW. Under the BOT Law, in case of a build-operate-and-transfer arrangement, the contract shall be awarded to the bidder "who, having satisfied the minimum financial, technical, organizational and leg standards" required by the law, has submitted the lowest bid and most favorable terms of the project. . . . Accordingly, . . . the Paircargo Consortium or any challenger to the unsolicited proposal of AEDC has to show that it possesses the requisite financial capability to undertake the project in the minimum amount of 30% of the project cost through (i) proof of the ability to provide a minimum amount of equity to the project, and (ii) a letter testimonial from reputable banks attesting that the project proponent or members of the consortium are banking with them, that they are in good financial standing, and that they have adequate resources. 8.ID.; ID.; ID.; ID.; TOTAL NET WORTH OF THE PAIRCARGO CONSORTIUM IS LESS THAT THE PRESCRIBED MINIMUM EQUITY INVESTMENT REQUIRED FOR THE PROJECT. We agree with public respondents that with respect to Security Bank, the entire amount of its net worth could not be invested in a single undertaking or enterprise, whether allied or non-allied in accordance with the provisions of R.A. No. 337, as amended or the General Banking Act[.] . . . Thus, the maximum amount that Security Bank could validly invest in the Paircargo Consortium is only P528,525,656.55, representing 15% of its entire net worth. The total net worth therefore of the Paircargo Consortium, after considering the maximum amounts that may be validly invested by each of its members is P558,384,871.55 or only 6.08% of the project cost, an amount substantially less than the prescribed minimum equity investment required for the project in the amount of P2,755,095,000.00 or 30% of the project cost.
cHaADC

9.ID.; ID.; PUBLIC BIDDING; PRE-QUALIFICATION STAGE; GOVERNMENT AGENCY MUST DETERMINE THE BIDDER'S FINANCIAL CAPACITY. The purpose of pre-qualification in any public bidding is to determine, at the earliest opportunity, the ability of the bidder to undertake the project. Thus, with respect to the bidder's financial capacity at the pre-qualification stage, the law requires the government agency to examine and determine the ability of the bidder to fund the entire cost of the project by considering the maximum amounts that each bidder may invest in the project at the time of pre-qualification.

10.ID.; ID.; ID.; ID.; ID.; SHOULD DETERMINE THE MAXIMUM AMOUNT THAT EACH MEMBER OF THE CONSORTIUM MAY COMMIT WITHOUT DISREGARDING THE INVESTMENT CEILINGS PROVIDED BY APPLICABLE LAW. The PBAC has determined that any prospective bidder, for the construction, operation and maintenance of the NAIA IPT III project should prove that it has the ability to provide equity in the minimum amount of 30% of the project cost, in accordance with the 70:30 debt-to-equity ratio prescribed in the Bid Documents. Thus, in the case of Paircargo Consortium, the PBAC should determine the maximum amounts that each member of the consortium may commit for the construction, operation and maintenance of the NAIA IPT III project at the time of pre-qualification. With respect to Security Bank, the maximum amount which may be invested by it would only be 15% of its net worth in view of the restrictions imposed by the General Banking Act. Disregarding the investment ceilings provided by applicable law would not result in a proper evaluation of whether or not a bidder is pre-qualified to undertake the project as for all intents and purposes, such ceiling or legal restriction determines the true maximum amount which a bidder may invest in the project. 11.ID.; ID.; ID.; ID.; ID.; EVALUATION OF THE FINANCIAL CAPACITY OF THE BIDDER MUST BE AT THE TIME THE BID IS SUBMITTED. [T]he determination of whether or not a bidder is pre-qualified to undertake the project requires an evaluation of the financial capacity of the said bidder at the time the bid is submitted based on the required documents presented by the bidder. The PBAC should not be allowed to speculate on the future financial ability of the bidder to undertake the project on the basis of documents submitted. This would open doors to abuse and defeat the very purpose of a public bidding. This is especially true in the case at bar which involves the investment of billions of pesos by the project proponent. The relevant government authority is dutybound to ensure that the awardee of the contract possesses the minimum required financial capability to complete the project. To allow the PBAC to estimate the bidder's future financial capability would not secure the viability and integrity of the project. 12.ID.; ID.; ID.; ID.; ID.; IF THE BIDDER FALLS SHORT OF THE MINIMUM AMOUNTS REQUIRED, THE SAID BIDDER SHOULD BE DISQUALIFIED. Thus, if the maximum amount of equity that a bidder may invest in the project at the time the bids are submitted falls short of the minimum amounts required to be put up by the bidder, said bidder should be properly disqualified. Considering that at the prequalification stage, the maximum amounts which the Paircargo Consortium may invest in the project fell short of the minimum amounts prescribed by the PBAC, we hold that Paircargo Consortium was not a qualified bidder. Thus the award of the contract by the PBAC to the Paircargo Consortium, a disqualified bidder, is null and void. 13.ID.; ID.; ID.; RESTRICTIVE AND CONSERVATIVE APPLICATION OF THE RULES AND PROCEDURE IS NECESSARY. A restrictive and conservative application of the rules and procedures of public bidding is necessary not only to protect

the impartiality and regularity of the proceedings but also to ensure the financial and technical reliability of the project. It has been held that: "The basic rule in public bidding is that bids should be evaluated based on the required documents submitted before and not after the opening of bids. Otherwise, the foundation of a fair and competitive public bidding would be defeated. Strict observance of the rules, regulations, and guidelines of the bidding process is the only safeguard to a fair, honest and competitive public bidding."
ACIDSc

14.ID.; ID.; ID.; PURPOSE. By its very nature, public bidding aims to protect the public interest by giving the public the best possible advantages through open competition. Thus: "Competition must be legitimate, fair and honest. In the field of government contract law, competition requires, not only bidding upon a common standard, a common basis, upon the same thing, the same subject matter, the same undertaking,' but also that it be legitimate, fair and honest; and not designed to injure or defraud the government." 15.ID.; ID.; ID.; ALL BIDDERS MUST BE ON EQUAL FOOTING ON THE CONTRACT RIDDED UPON. An essential element of a publicly bidded contract is that all bidders must be on equal footing. Not simply in terms of application of the procedural rules and regulations imposed by the relevant government agency, but more importantly, on the contract bidded upon. Each bidder must be able to bid on the same thing. The rationale is obvious. If the winning bidder is allowed to later include or modify certain provisions in the contract awarded such that the contract is altered in any material respect, then the essence of fair competition in the public bidding is destroyed. A public bidding would indeed be a farce if after the contract is awarded, the winning bidder may modify the contract and include provisions which are favorable to it that were not previously made available to the other bidders.

16.ID.; ID.; ID.; AMENDMENTS TO CONTRACT BIDDED; WINNING BIDDER IS NOT PRECLUDED FROM MODIFYING OR AMENDING CERTAIN PROVISIONS OF THE CONTRACT THAT DOES NOT CONSTITUTE SUBSTANTIAL OR MATERIAL AMENDMENTS. While we concede that a winning bidder is not precluded from modifying or amending certain provisions of the contract bidded upon, such changes must not constitute substantial or material amendments that would alter the basic parameters of the contract and would constitute a denial to the other bidders of the opportunity to bid on the same terms. Hence, the determination of whether or not a modification or amendment of a contract bidded out constitutes a substantial amendment rests on whether the contract, when taken as a whole, would contain substantially different terms and conditions that would have the effect of altering the technical and/or financial proposals previously submitted by other bidders. The alterations and modifications in the contract executed between the government and the winning bidder

must be such as to render such executed contract to be an entirely different contract from the one that was bidded upon. 17.ID.; ID.; ID.; ID.; SIGNIFICANT AMENDMENTS IN THE PIATCO'S DRAFT CONCESSION AGREEMENT; TYPES OF FEES THAT MAY BE IMPOSED AND COLLECTED BY PIATCO. When taken as a whole, the changes under the 1997 Concession Agreement with respect to reduction in the types of fees that are subject to MIAA regulation and the relaxation of such regulation with respect to other fees are significant amendments that substantially distinguish the draft Concession Agreement from the 1997 Concession Agreement. The 1997 Concession Agreement, in this respect, clearly gives PIATCO more favorable terms than what was available to other bidders at the time the contract was bidded out. It is not very difficult to see that the changes in the 1997 Concession Agreement translate to direct and concrete financial advantages for PIATCO which were not available at the time the contract was offered for bidding. It cannot be denied that under the 1997 Concession Agreement only "Public Utility Revenues" are subject to MIAA regulation. Adjustments of all other fees imposed and collected by PIATCO are entirely within its control. Moreover, with respect to terminal fees, under the 1997 Concession Agreement, the same is further subject to "Interim Adjustments" not previously stipulated in the draft Concession Agreement. Finally, the change in the currency stipulated for "Public Utility Revenues" under the 1997 Concession Agreement, except terminal fees, gives PIATCO an added benefit which was not available at the time of bidding.
acHCSD

18.ID.; ID.; ID.; ID.; ID.; ASSUMPTION BY THE GOVERNMENT OF THE LIABILITIES OF PIATCO IN THE EVENT OF THE LATTER'S DEFAULT TRANSLATES BETTER TERMS AND CONDITION FOR PIATCO. Under the draft Concession Agreement, default by PIATCO of any of its obligations to creditors who have provided, loaned or advanced funds for the NAIA IPT III project does not result in the assumption by the Government of these liabilities. In fact, nowhere in the said contract does default of PIATCO's loans figure in the agreement. Such default does not directly result in any concomitant right or obligation in favor of the Government. However, the 1997 Concession Agreement . . . [u]nder . . . Section 4.04 in relation to the definition of "Attendant Liabilities," default by PIATCO of its loans used to finance the NAIA IPT III project triggers the occurrence of certain events that leads to the assumption by the Government of the liability for the loans. Only in one instance may the Government escape the assumption of PIATCO's liabilities, i.e., when the Government so elects and allows a qualified operator to take over as Concessionaire. However, this circumstance is dependent on the existence and availability of a qualified operator who is willing to take over the rights and obligations of PIATCO under the contract, a circumstance that is not entirely within the control of the Government. Without going into the validity of this provision at this juncture, suffice it to state that Section 4.04 of the 1997 Concession Agreement may be considered a form of security for the loans PIATCO has obtained to finance the project, an option that was not made available in the

draft Concession Agreement. Section 4.04 is an important amendment to the 1997 Concession Agreement because it grants PIATCO a financial advantage or benefit which was not previously made available during the bidding process. This financial advantage is a significant modification that translates to better terms and conditions for PIATCO. 19.ID.; ID.; ID.; ID.; SHOULD ALWAYS CONFORM TO THE GENERAL PUBLIC POLICY. [T]his Court maintains that amendments to the contract bidded upon should always conform to the general policy on public bidding if such procedure is to be faithful to its real nature and purpose. By its very nature and characteristic, competitive public bidding aims to protect the public interest by giving the public the best possible advantages through open competition. It has been held that the three principles in public bidding are (1) the offer to the public; (2) opportunity for competition; and (3) a basis for the exact comparison of bids. A regulation of the matter which excludes any of these factors destroys the distinctive character of the system and thwarts the purpose of its adoption. These are the basic parameters which every awardee of a contract bidded out must conform to, requirements of financing and borrowing notwithstanding. Thus, upon a concrete showing that, as in this case, the contract signed by the government and the contract awardee is an entirely different contract from the contract bidded, courts should not hesitate to strike down said contract in its entirety for violation of public policy on public bidding. A strict adherence on the principles, rules and regulations on public bidding must be sustained if only to preserve the integrity and the faith of the general public on the procedure. 20.ID.; ID.; ID.; ID.; ANY GOVERNMENT ACTION WHICH PERMITS ANY SUBSTANTIAL VARIANCE THEREOF IS A GRAVE ABUSE OF DISCRETION. Public bidding is a standard practice for procuring government contracts for public service and for furnishing supplies and other materials. It aims to secure for the government the lowest possible price under the most favorable terms and conditions, to curtail favoritism in the award of government contracts and avoid suspicion of anomalies and it places all bidders in equal footing. Any government action which permits any substantial variance between the conditions under which the bids are invited and the contract executed after the award thereof is a grave abuse of discretion amounting to lack or excess of jurisdiction which warrants proper judicial action.
CaHcET

21.ID.; ID.; ID.; ID.; DIRECTLY TRANSLATES CONCRETE FINANCIAL ADVANTAGES TO PIATCO THAT WERE PREVIOUSLY NOT AVAILABLE DURING THE BIDDING PROCESS. The fact that the . . . substantial amendments were made on the 1997 Concession Agreement renders the same null and void for being contrary to public policy. These amendments convert the 1997 Concession Agreement to an entirely different agreement from the contract bidded out or the draft Concession Agreement. It is not difficult to see that the amendments on (1) the types of fees or charges that are subject to MIAA regulation or control and the extent thereof and (2) the assumption by the Government, under certain conditions, of the liabilities of PIATCO

directly translates concrete financial advantages to PIATCO that were previously not available during the bidding process. These amendments cannot be taken as merely supplements to or implementing provisions of those already existing in the draft Concession Agreement. The amendments discussed above present new terms and conditions which provide financial benefit to PIATCO which may have altered the technical and financial parameters of other bidders had they known that such terms were available. 22.ID.; ID.; BOT LAW; PURPOSE. One of the main impetus for the enactment of the BOT Law is the lack of government funds to construct the infrastructure and development projects necessary for economic growth and development. This is why private sector resources are being tapped in order to finance these projects. The BOT law allows the private sector to participate, and is in fact encouraged to do so by way of incentives, such as minimizing, the unstable flow of returns, provided that the government would not have to unnecessarily expend scarcely available funds for the project itself. As such, direct guarantee, subsidy and equity by the government in these projects are strictly prohibited. This is but logical for if the government would in the end still be at a risk of paying the debts incurred by the private entity in the BOT projects, then the purpose of the law is subverted. 23.ID.; ID.; ID.; CONDITIONS FOR THE ACCEPTANCE OF THE UNSOLICITED PROPOSAL FOR A BOT PROJECT. The BOT Law and its implementing rules provide that in order for an unsolicited proposal for a BOT project may be accepted, the following conditions must first be met: (1) the project involves a new concept in technology and/or is not part of the list of priority projects, (2) no direct government guarantee, subsidy or equity is required, and (3) the government agency or local government unit has invited by publication other interested parties to a public bidding and conducted the same. The failure to meet any of the above conditions will result in the denial of the proposal. 24.ID.; ID.; ID.; STRICTLY PROHIBITS DIRECT GOVERNMENT GUARANTEE, SUBSIDY AND EQUITY IN UNSOLICITED PROPOSAL. It is further provided that the presence of direct government guarantee, subsidy or equity will "necessarily, disqualify a proposal from being treated and accepted as an unsolicited proposal." The BOT Law clearly and strictly prohibits direct government guarantee, subsidy and equity in unsolicited proposals that the mere inclusion of a provision to that effect is fatal and is sufficient to deny the proposal. It stands to reason therefore that if a proposal can be denied by reason of the existence of direct government guarantee, then its inclusion in the contract executed after the said proposal has been accepted is likewise sufficient to invalidate the contract itself. A prohibited provision, the inclusion of which would result in the denial of a proposal cannot, and should not, be allowed to later on be inserted in the contract resulting from the said proposal. The basic rules of justice and fair play alone militate against such an occurrence and must not, therefore, be countenanced particularly

in this instance where the government is exposed to the risk of shouldering hundreds of million of dollars in debt.
CSDcTA

25.ID.; ID.; ID.; ID.; VIOLATED IN CASE AT BAR. The proscription against government guarantee in any form is one of the policy considerations behind the BOT Law. Clearly, in the present case, the ARCA obligates the Government to pay for all loans, advances and obligations arising out of financial facilities extended to PIATCO for the implementation of the NAIA IPT III project should PIATCO default in its loan obligations to its Senior Lenders and the latter fails to appoint a qualified nominee or transferee. This in effect would make the Government liable for PIATCO's loans should the conditions as set forth in the ARCA arise. This is a form of direct government guarantee. . . . This Court has long and consistently adhered to the legal maxim that those that cannot be done directly cannot be done indirectly. To declare the PIATCO contracts valid despite the clear statutory prohibition against a direct government guarantee would not only make a mockery of what the BOT Law seeks to prevent which is to expose the government to the risk of incurring a monetary obligation resulting from a contract of loan between the project proponent and its lenders and to which the Government is not a party to but would also render the BOT Law useless for what it seeks to achieve to make use of the resources of the private sector in the "financing, operation and maintenance of infrastructure and development projects" which are necessary for national growth and development but which the government, unfortunately, could illafford to finance at this point in time. 26.ID.; CONSTITUTIONAL LAW; POLICE POWER; TEMPORARY TAKEOVER OF BUSINESS AFFECTED WITH PUBLIC INTEREST; GOVERNMENT IS NOT REQUIRED TO COMPENSATE THE PRIVATE ENTITY-OWNER. Article XII, Section 17 of the 1987 Constitution . . . pertains to the right of the State in times of national emergency, and in the exercise of its police power, to temporarily take over the operation of any business affected with public interest. In the 1986 Constitutional Commission, the term "national emergency" was defined to include threat from external aggression, calamities or national disasters, but not strikes "unless it is of such proportion that would paralyze government service." The duration of the emergency itself is the determining factor as to how long the temporary takeover by the government would last. The temporary takeover by the government extends only to the operation of the business and not to the ownership thereof. As such the government is not required to compensate the private entity-owner of the said business as there is no transfer of ownership, whether permanent or temporary. The private entity-owner affected by the temporary takeover cannot, likewise, claim just compensation for the use of the said business and its properties as the temporary takeover by the government is in exercise of its police power and not of its power of eminent domain.

27.ID.; ID.; ID.; ID.; ID.; CANNOT BE CONTRAVENED BY MERE CONTRACTUAL STIPULATION. PIATCO cannot, by mere contractual stipulation, contravene the Constitutional provision on temporary government takeover and obligate the government to pay "reasonable cost for the use of the Terminal and/or Terminal Complex." Article XII, Section 17 of the 1987 Constitution envisions a situation wherein the exigencies of the times necessitate the government to "temporarily take over or direct the operation of any privately owned public utility or business affected with public interest." It is the welfare and interest of the public which is the paramount consideration in determining whether or not to temporarily take over a particular business. Clearly, the State in effecting the temporary takeover is exercising its police power. Police power is the "most essential, insistent, and illimitable of powers." Its exercise therefore must not be unreasonably hampered nor its exercise be a source of obligation by the government in the absence of damage due to arbitrariness of its exercise. Thus, requiring the government to pay reasonable compensation for the reasonable use of the property pursuant to the operation of the business contravenes the Constitution. 28.ID.; ID.; NATIONAL ECONOMY AND PATRIMONY; CONSTITUTION STRICTLY REGULATES MONOPOLIES. A monopoly is "a privilege or peculiar advantage vested in one or more persons or companies, consisting in the exclusive right (or power) to carry on a particular business or trade, manufacture a particular article, or control the sale of a particular commodity." The 1987 Constitution strictly regulates monopolies, whether private or public, and even provides for their prohibition if public interest so requires. . . . Clearly, monopolies are not per se prohibited by the Constitution but may be permitted to exist to aid the government in carrying on an enterprise or to aid in the performance of various services and functions in the interest of the public. Nonetheless, a determination must first be made as to whether public interest requires a monopoly. As monopolies are subject to abuses that can inflict severe prejudice to the public, they are subject to a higher level of State regulation than an ordinary business undertaking.
ETHIDa

29.ID.; ID.; ID.; ID.; PRIVILEGE GIVEN TO PIATCO SHOULD BE SUBJECT TO REASONABLE REGULATION AND SUPERVISION BY THE GOVERNMENT. The operation of an international passenger airport terminal is no doubt an undertaking imbued with public interest. In entering into a Build-Operate-and-Transfer contract for the construction, operation and maintenance of NAIA IPT III, the government has determined that public interest would be served better if private sector resources were used in its construction and an exclusive right to operate be granted to the private entity undertaking the said project, in this case PIATCO. Nonetheless, the privilege given to PIATCO is subject to reasonable regulation and supervision by the Government through the MIAA, which is the government agency authorized to operate the NAIA complex, as well as DOTC, the department to which MIAA is attached. This is in accord with the Constitutional mandate that a monopoly which is not prohibited must be regulated.

30.ID.; ID.; ID.; ID.; OPERATION OF PUBLIC UTILITY CANNOT BE DONE IN AN ARBITRARY MANNER TO THE DETRIMENT OF THE PUBLIC. While it is the declared policy of the BOT Law to encourage private sector participation by "providing a climate of minimum government regulations," the same does not mean that Government must completely surrender its sovereign power to protect public interest in the operation of a public utility as a monopoly. The operation of said public utility can not be done in an arbitrary manner to the detriment of the public which it seeks to serve. The right granted to the public utility may be exclusive but the exercise of the right cannot run riot. Thus, while PIATCO may be authorized to exclusively operate NAIA IPT III as an international passenger terminal, the Government, through the MIAA, has the right and the duty to ensure that it is done in accord with public interest. PIATCO's right to operate NAIA IPT III cannot also violate the rights of third parties. 31.ID.; ID.; BILL OF RIGHTS NON-IMPAIRMENT OF OBLIGATIONS OF CONTRACT; PIATCO, BY CLAIMING AN EXCLUSIVE RIGHT TO OPERATE, CANNOT REQUIRE THE GOVERNMENT TO BREAK ITS CONTRACTUAL OBLIGATIONS TO THE SERVICE PROVIDERS. We hold that while the service providers presently operating at NAIA Terminal 1 do not have an absolute right for the renewal or the extension of their respective contracts, those contracts whose duration extends beyond NAIA IPT III's In-Service-Date should not be unduly prejudiced. These contracts must be respected not just by the parties thereto but also by third parties. PIATCO cannot, by law and certainly not by contract, render a valid and binding contract nugatory. PIATCO, by the mere expedient of claiming an exclusive right to operate, cannot require the Government to break its contractual obligations to the service providers. In contrast to the arrastre and stevedoring service providers in the case of Anglo-Fil Trading Corporation v. Lazaro whose contracts consist of temporary hold-over permits, the affected service providers in the cases at bar, have a valid and binding contract with the Government, through MIAA, whose period of effectivity, as well as the other terms and conditions thereof cannot be violated. 32.ID.; ID.; ID.; ID.; MIAA SHOULD ENSURE THAT WHOEVER BY CONTRACT IS GIVEN THE RIGHT TO OPERATE NAIA IPT III WILL DO SO WITHIN THE BOUNDS OF THE LAW. In fine, the efficient functioning of NAIA IPT III is imbued with public interest. The provisions of the 1997 Concession Agreement and the ARCA did not strip government, thru the MIAA, of its right to supervise the operation of the whole NAIA complex, including NAIA IPT III. As the primary government agency tasked with the job, it is MIAA's responsibility to ensure that whoever by contract is given the right to operate NAIA IPT III will do so within the bounds of the law and with due regard to the rights of third parties and above all, the interest of the public.
TSHIDa

PANGANIBAN, J., separate opinion:

1.REMEDIAL LAW; SPECIAL CIVIL ACTION; PROHIBITION; DIRECT RESORT TO THE SUPREME COURT BY THE EMPLOYEES WHO FEARED LOSS OF THEIR JOBS IS JUSTIFIED. The Court has, in the past, held that questions relating to gargantuan government contracts ought to be settled without delay. This holding applies with greater force to the instant cases. Respondent Piatco is partly correct in averring that petitioners can obtain relief from the regional trial courts via an action to annul the contracts. Nevertheless, the unavoidable consequence of having to await the rendition and the finality of any such judgment would be a prolonged state of uncertainty that would be prejudicial to the nation, the parties and the general public. And, in light of the feared loss of jobs of the petitioning workers, consequent to the inevitable pretermination of contracts of the petitioning service providers that will follow upon the heels of the impending opening of NAIA Terminal III, the need for relief is patently urgent, and therefore, direct resort to this Court through the special civil action of prohibition is thus justified.

2.ID.; ID.; ID.; DISPOSITION THEREOF ULTIMATELY RUNS ON QUESTIONS OF LAW; CASE AT BAR. Contrary to Piatco's argument that the resolution of the issues raised in the Petitions will require delving into factual questions, I submit that their disposition ultimately turns on questions of law. Further, many of the significant and relevant factual questions can be easily addressed by an examination of the documents submitted by the parties. In any event, the Petitions raise some novel questions involving the application of the amended BOT Law, which this Court has seen fit to tackle. 3.ID.; CIVIL PROCEDURE; ARBITRATION PROCEEDINGS; CANNOT ADDRESS, DETERMINE AND DEFINITIVELY RESOLVE THE CONSTITUTIONAL AND LEGAL QUESTIONS. As will be discussed at length later, the Piatco contracts are indeed void in their entirety; thus, a resort to the aforesaid provision on arbitration is unavailing. Besides, petitioners and petitioners-in-intervention have pointed out that, even granting arguendo that the arbitration clause remained a valid provision, it still cannot bind them inasmuch as they are not parties to the Piatco contracts. And in the final analysis, it is unarguable that the arbitration process provided for under Section 10.02 of the Amended and Restated Concession Agreement (ARCA), to be undertaken by a panel of three (3) arbitrators appointed in accordance with the Rules of Arbitration of the International Chamber of Commerce, will not be able to address, determine and definitively resolve the constitutional and legal questions that have been raised in the Petitions before us. 4.ID.; ID.; LOCUS STANDI; CITIZEN, TAXPAYER AND MEMBERS OF THE HOUSE OF REPRESENTATIVES ARE SUFFICIENTLY CLOTHED WITH STANDING TO BRING SUIT QUESTIONING THE VALIDITY OF CONTRACT AFFECTING PUBLIC INTEREST. Given this Court's previous decisions in cases of

similar import, no one will seriously doubt that, being taxpayers and members of the House of Representatives, Petitioners Baterina et al. have locus standi to bring the Petition in GR No. 155547. In Albano v. Reyes, this Court held that the petitioner therein, suing as a citizen, taxpayer and member of the House of Representatives, was sufficiently clothed with standing to bring the suit questioning the validity of the assailed contract. The Court cited the fact that public interest was involved, in view of the important role of the Manila International Container Terminal (MICT) in the country's economic development and the magnitude of the financial consideration. This, notwithstanding the fact that expenditure of public funds was not required under the assailed contract.
CcEHaI

5.ID.; ID.; ID.; MEMBERS OF HOUSE OF REPRESENTATIVES ARE DEPRIVED OF DISCRETION; CASE AT BAR. In the cases presently under consideration, petitioners' personal and substantial interest in the controversy is shown by the fact that certain provisions in the Piatco contracts create obligations on the part of government (through the DOTC and the MIAA) to disburse public funds without prior congressional appropriations. Petitioners thus correctly assert that the injury to them has a twofold aspect: (1) they are adversely affected as taxpayers on account of the illegal disbursement of public funds; and (2) they are prejudiced qua legislators, since the contractual provisions requiring the government to incur expenditures without appropriations also operate as limitations upon the exclusive power and prerogative of Congress over the public purse. As members of the House of Representatives, they are actually deprived of discretion insofar as the inclusion of those items of expenditure in the budget is concerned. To prevent such encroachment upon the legislative privilege and obviate injury to the institution of which they are members, petitioners-legislators have locus standi to bring suit. 6.ID.; ID.; ID.; EMPLOYEES ARE CONFRONTED WITH THE PROSPECT OF BEING LAID OFF FROM THEIR JOBS. Messrs. Agan et al. and Lopez et al., are likewise taxpayers and thus possessed of standing to challenge the illegal disbursement of public funds. Messrs. Agan et al., in particular, are employees (or representatives of employees) of various service providers that have (1) existing concession agreements with the MIAA to provide airport services necessary to the operation of the NAIA and (2) service agreements to furnish essential support services to the international airlines operating at the NAIA. Messrs. Lopez et al. are employees of the MIAA. These petitioners (Messrs. Agan et al. and Messrs. Lopez et al.) are confronted with the prospect of being laid off from their jobs and losing their means of livelihood when their employer-companies are forced to shut down or otherwise retrench and cut back on manpower. Such development would result from the imminent implementation of certain provisions in the contracts that tend toward the creation of a monopoly in favor of Piatco, its subsidiaries and related companies. 7.ID.; ID.; ID.; SERVICE PROVIDERS CLAIM TO BE DEPRIVED OF THEIR PROPERTY AND OF THE LIBERTY TO CONTRACT WITHOUT DUE PROCESS

OF LAW. Petitioners-in-intervention are service providers in the business of furnishing airport-related services to international airlines and passengers in the NAIA and are therefore competitors of Piatco as far as that line of business is concerned. On account of provisions in the Piatco contracts, petitioners-in-intervention have to enter into a written contract with Piatco so as not to be shut out of NAIA Terminal III and barred from doing business there. Since there is no provision to ensure or safeguard free and fair competition, they are literally at its mercy. They claim injury on account of their deprivation of property (business) and of the liberty to contract, without due process of law. 8.ID.; ID.; ID.; IN CASES OF TRANSCENDENTAL IMPORTANCE, THE SUPREME COURT MAY RELAX THE STANDING REQUIREMENTS AND ALLOW A SUIT TO PROSPER. And even if petitioners and petitioners-in-intervention were not sufficiently clothed with legal standing, I have at the outset already established that, given its impact on the public and on national interest, this controversy is laden with transcendental importance and constitutional significance. Hence, I do not hesitate to adopt the same position as was enunciated in Kilosbayan v. Guingona Jr. that "in cases of transcendental importance, the Court may relax the standing requirements and allow a suit to prosper even when there is no direct injury to the party claiming the right of judicial review." 9.POLITICAL LAW; ADMINISTRATIVE LAW; REPUBLIC ACT NO. 6957 (BUILDOPERATE-AND TRANSFER or BOT LAW); PUBLIC BIDDING; BIDDER MUST SATISFY THE MINIMUM REQUIREMENTS AND MEET THE TECHNICAL, FINANCIAL, ORGANIZATIONAL AND LEGAL STANDARDS. I must emphasize that the law requires the award of a BOT project to the bidder that has satisfied the minimum requirements; and met the technical, financial, organizational and legal standards provided in the BOT Law.
DAHaTc

10.ID.; ID.; ID.; ID.; MUST BE CONDUCTED UNDER A TWO-STAGE SYSTEM. Section 5 of this statute requires that the price challenge via public bidding "must be conducted under a two-envelope/two-stage system: the first envelope to contain the technical proposal and the second envelope to contain the financial proposal." Moreover, the 1994 Implementing Rules and Regulations (IRR) provide that only those bidders that have passed the prequalification stage are permitted to have their two envelopes reviewed. In other words, prospective bidders must prequalify by submitting their prequalification documents for evaluation; and only the pre-qualified bidders would be entitled to have their bids opened, evaluated and appreciated. On the other hand, disqualified bidders are to be informed of the reason for their disqualification. This procedure was confirmed and reiterated in the Bid Documents, which I quote thus: "Prequalified proponents will be considered eligible to move to second stage technical proposal evaluation. The second and third envelopes of pre-disqualified proponents will be returned."

11.ID.; ID.; ID.; ID.; PROPONENT MUST PROVE THAT IT IS ABLE TO RAISE THE MINIMUM AMOUNT REQUIRED FOR THE PROJECT. Aside from complying with the legal and technical requirements (track record or experience of the firm and its key personnel), a project proponent desiring to prequalify must also demonstrate its financial capacity to undertake the projects. To establish such capability, a proponent must prove that it is able to raise the minimum amount of equity required for the project and to procure the loans or financing needed for it. Since the minimum amount of equity for the project was set at 30 percent of the minimum project cost of US$350 million, the minimum amount of equity required of any proponent stood at US$105 million. Converted to pesos at the exchange rate then of P26.239 to US$1.00 (as quoted by the Bangko Sentral ng Pilipinas), the peso equivalent of the minimum equity was P2,755,095,000. 12.ID.; ID.; ID.; ID.; ID.; NOT COMPLIED WITH IN CASE AT BAR. However, the combined equity or net worth of the Paircargo consortium stood at only P558,384,871.55. This amount was only slightly over 6 percent of the minimum project cost and very much short of the required minimum equity, which was equivalent to 30 percent of the project cost. Such deficiency should have immediately caused the disqualification of the Paircargo consortium. 13.ID.; ID.; ID.; ID.; RULES, REGULATIONS AND GUIDELINES MUST BE STRICTLY APPLIED; VIOLATED IN CASE AT BAR. By virtue of the prequalified status conferred upon the Paircargo, Undersecretary Cal's findings in effect relieved the consortium of the need to comply with the financial capability requirement imposed by the BOT Law and IRR. This position is unmistakably and squarely at odds with the Supreme Court's consistent doctrine emphasizing the strict application of pertinent rules, regulations and guidelines for the public bidding process, in order to place each bidder actual or potential on the same footing. Thus, it is unarguably irregular and contrary to the very concept of public bidding to permit a variance between the conditions under which bids are invited and those under which proposals are submitted and approved.

14.ID.; ID.; ID.; ID.; ESSENCE. Republic v. Capulong teaches that if one bidder is relieved from having to conform to the conditions that impose some duty upon it, that bidder is not contracting in fair competition with those bidders that propose to be bound by all conditions. The essence of public bidding is, after all, an opportunity for fair competition and a basis for the precise comparison of bids. Thus, each bidder must bid under the same conditions; and be subject to the same guidelines, requirements and limitations. The desired result is to be able to determine the best offer or lowest bid, all things being equal.

15.ID.; ID.; ID.; ID.; SINCE THE ENTIRE BIDDING PROCESS WAS FLAWED. AND TAINTED FROM THE VERY OUTSET, THE AWARD OF CONCESSION WAS VOID. Inasmuch as the Paircargo consortium did not possess the minimum equity equivalent to 30 percent of the minimum project cost, it should not have been prequalified or allowed to participate further in the bidding. The Prequalification and Bidding Committee (PBAC) should therefore not have opened the two envelopes of the consortium containing its technical and financial proposals; required AEDC to match the consortium's bid; or awarded the Concession Agreement to the consortium's successor-ininterest, Piatco. As there was effectively no public bidding to speak of, the entire bidding process having been flawed and tainted from the very outset, therefore, the award of the concession to Paircargo's successor Piatco was void, and the Concession Agreement executed with the latter was likewise void ab initio. For this reason, Piatco cannot and should not be allowed to benefit from that Agreement.
ICDcEA

16.ID.; ID.; ID.; ID.; PROTECTION OF THE PROPRIETARY INFORMATION IS APPLICABLE TO THE ORIGINATOR OF THE UNSOLICITED PROPOSAL ONLY. The "proprietary information" referred to in Section 11.6 of the IRR pertains only to the proprietary information of the originator of an unsolicited proposal, and not to those belonging to a challenger. The reason for the protection accorded proprietary information at all is the fact that, according to Section 4-A of the BOT Law as amended, a proposal qualifies as an "unsolicited proposal" when it pertains to a project that involves "a new concept or technology," and/or a project that is not on the government's list of priority projects. 17.ID.; ID.; ID.; ID.; ID.; RATIONALE. To be considered as utilizing a new concept or technology, a project must involve the possession of exclusive rights (worldwide or regional) over a process; or possession of intellectual property rights over a design, methodology or engineering concept. Patently, the intent of the BOT Law is to encourage individuals and groups to come up with creative innovations, fresh ideas and new technology. Hence, the significance and necessity of protecting proprietary information in connection with unsolicited proposals. And to make the encouragement real, the law also extends to such individuals and groups what amounts to a "right of first refusal" to undertake the project they conceptualized, involving the use of new technology or concepts, through the mechanism of matching a price challenge. 18.ID.; ID.; ID.; ID.; BIDDER MUST BE GIVEN ACCESS TO THE ASSUMPTION AND THE CALCULATIONS THAT WENT INTO CRAFTING THE COMPETING BID. A competing bid is never just any figure conjured from out of the blue; it is arrived at after studying economic, financial, technical and other factors; it is likewise based on certain assumptions as to the nature of the business, the market potentials, the probable demand for the product or service, the future behavior of cost items, political and other risks, and so on. It is thus self-evident that in order to be able to intelligently match a bid or price challenge, a bidder must be given access to the assumptions and the

calculations that went into crafting the competing bid. In this instance, the financial and technical proposals of Piatco would have provided AEDC with the necessary information to enable it to make a reasonably informed matching bid. To put it more simply, a bidder unable to access the competitor's assumptions will never figure out how the competing bid came about; requiring him to "counter-propose" is like having him shoot at a target in the dark while blindfolded. 19.ID.; ID.; ID.; DEFINITE AND FIRM TIMETABLE FOR THE SUBMISSION OF THE REQUIREMENTS TO EXPOSE AND WEED OUT UNQUALIFIED PROPONENTS. The purpose of having a definite and firm timetable for the submission of the requirements is not only to prevent delays in the project implementation, but also to expose and weed out unqualified proponents, who might have unceremoniously slipped through the earlier prequalification process, by compelling them to put their money where their mouths are, so to speak. 20.ID.; ID.; ID.; ID.; EASILY CIRCUMVENTED BY MERELY POSTPONING THE ACTUAL ISSUANCE OF THE NOTICE OF AWARD. Nevertheless, this provision can be easily circumvented by merely postponing the actual issuance of the Notice of Award, in order to give the favored proponent sufficient time to comply with the requirements. Hence, to aver or minimize the manipulation of the post-bidding process, the IRR not only set out the precise sequence of events occurring between the completion of the evaluation of the technical bids and the issuance of the Notice of Award, but also specified the timetables for each such event. Definite allowable extensions of time were provided for, as were the consequences of a failure to meet a particular deadline. 21.ID.; ID.; ID.; ID.; TO DISCOURAGE COLLUSION AND REDUCE THE OPPORTUNITY FOR AGENTS OF GOVERNMENT TO ABUSE THEIR DISCRETION. The highly regulated time-frames within which the agents of government were to act evinced the intent to impose upon them the duty to act expeditiously throughout the process, to the end that the project be prosecuted and implemented without delay. This regulated scenario was likewise intended to discourage collusion and substantially reduce the opportunity for agents of government to abuse their discretion in the course of the award process.
DcTSHa

22.ID.; ID.; ID.; PROCEDURE FOR THE AWARD OF THE PROJECTS. In particular, Section 9.1 of the 1994 IRR prescribed that within 30 calendar days from the time the second-stage evaluation shall have been completed, the Committee must come to a decision whether or not to award the contract and, within 7 days therefrom, the Notice of Award must be approved by the head of agency or local government unit (LGU) concerned, and its issuance must follow within another 7 days thereafter. Section 9.2 of the IRR set the procedure applicable to projects involving substantial government undertakings as follows: Within 7 days after the decision to award is made, the draft contract shall be submitted to the ICC for clearance on a no-objection basis. If the draft

contract includes government undertakings already previously approved, then the submission shall be for information only. However, should there be additional or new provisions different from the original government undertakings, the draft shall have to be reviewed and approved. The ICC has 15 working days to act thereon, and unless otherwise specified, its failure to act on the contract within the specified time frame signifies that the agency or LGU may proceed with the award. The head of agency or LGU shall approve the Notice of Award within seven days of the clearance by the ICC on a no-objection basis, and the Notice itself has to be issued within seven days thereafter. 23.ID.; ID.; ID.; VIOLATED IN CASE AT BAR. Despite the clear timetables set out in the IRR, several lengthy and still-unexplained delays occurred in the award process, as can be observed from the presentation made by the counsel for public respondents. [T]he chronology of events bespeaks an unmistakable disregard, if not disdain, by the persons in charge of the award process for the time limitations prescribed by the IRR. Their attitude flies in the face of this Court's solemn pronouncement in Republic v. Capulong that "strict observance of the rules, regulations and guidelines of the bidding process is the only safeguard to a fair, honest and competitive public bidding." From the foregoing, the only conclusion that can possibly be drawn is that the BOT law and its IRR were repeatedly violated with unmitigated impunity and by agents of government, no less! On account of such violation, the award of the contract to Piatco, which undoubtedly gained time and benefited from the delays, must be deemed null and void from the beginning. 24.ID.; ID.; ID.; CHANGES TO THE CONTRACT BIDDED OUT RESULTED IN A SUBSTANTIALLY DIFFERENT CONTRACT. After the PBAC made its decision on December 11, 1996 to award the contract to Piatco, the latter negotiated changes to the Contract bidded out and ended up with what amounts to a substantially new contract without any public bidding. This Contract was subsequently further amended four more times through negotiation and without any bidding. Thus, the contract actually executed between Piatco and DOTC/MIAA on July 12, 1997 (the Concession Agreement or "CA") differed from the contract bidded out[.] It goes without saying that the amendment of the Contract bidded out (the DCA or draft concession agreement) in such substantial manner, without any public bidding, and after the bidding process had been concluded on December 11, 1996 is violative of public policy on public biddings, as well as the spirit and intent of the BOT Law. The whole point of going through the public bidding exercise was completely lost. Its very rationale was totally subverted by permitting Piatco to amend the contract for which public bidding had already been concluded. Competitive bidding aims to obtain the best deal possible by fostering transparency and preventing favoritism, collusion and fraud in the awarding of contracts. That is the reason why procedural rules pertaining to public bidding demand strict observance.

25.ID.; ID.; ID.; SUBSTANTIVE AMENDMENTS TO A CONTRACT FOR WHICH A PUBLIC BIDDING HAS ALREADY BEEN FINISHED SHOULD ONLY BE AWARDED AFTER ANOTHER PUBLIC BIDDING. In a relatively early case, Caltex v. Delgado Brothers, this Court made it clear that substantive amendments to a contract for which a public bidding has already been finished should only be awarded after another public bidding: "The due execution of a contract after public bidding is a limitation upon the right of the contracting parties to alter or amend it without another public bidding, for otherwise what would a public bidding be good for if after the execution of a contract after public bidding, the contracting parties may alter or amend the contract, or even cancel it, at their will? Public biddings are held for the protection of the public, and to give the public the best possible advantages by means of open competition between the bidders. He who bids or offers the best terms is awarded the contract subject of the bid, and it is obvious that such protection and best possible advantages to the public will disappear if the parties to a contract executed after public bidding may alter or amend it without another previous public bidding."
EaIcAS

26.ID.; ID.; ID.; TERMS, CONDITIONS AND STIPULATIONS OF THE CONTRACTS MUST REMAIN INTACT AND NOT BE SUBJECT TO FURTHER NEGOTIATION. The BOT Law cannot be said to allow the negotiation of contractual stipulations resulting in a substantially new contract after the bidding process and price challenge had been concluded. In fact, the BOT Law, in recognition of the time, money and effort invested in an unsolicited proposal, accords its originator the privilege of matching the challenger's bid. Section 4-A of the BOT Law specifically refers to a "lower price proposal" by a competing bidder; and to the right of the original proponent "to match the price" of the challenger. Thus, only the price proposals are in play. The terms, conditions and stipulations in the contract for which public bidding has been concluded are understood to remain intact and not be subject to further negotiation. Otherwise, the very essence of public bidding will be destroyed there will no basis for an exact comparison between bids. Moreover, Piatco misinterpreted the meaning behind PBAC Bid Bulletin No. 3. The phrase amendments . . . from time to time refers only to those amendments to the draft concession agreement issued by the PBAC prior to the submission of the price challenge; it certainly does not include or permit amendments negotiated for and introduced after the bidding process, has been terminated. 27.ID.; ID.; ID.; REVISIONS AND AMENDMENTS IN THE CONTRACTS THAT GIVE UNDUE ADVANTAGE TO THE GOVERNMENT IS ILLEGAL. In sum, the revisions and amendments as embodied in the ARCA constitute very material alterations of the terms and conditions of the CA, and give further manifestly undue advantage to Piatco at the expense of government. Piatco claims that the changes to the CA were necessitated by the demands of its foreign lenders. However, no proof whatsoever has been adduced to buttress this claim. In any event, it is quite patent that the sum total of the aforementioned changes resulted in drastically weakening the position of government to a degree that seems quite excessive, even from the standpoint of a businessperson who

regularly transacts with banks and foreign lenders, is familiar with their mind-set, and understands what motivates them. On the other hand, whatever it was that impelled government officials concerned to accede to those grossly disadvantageous changes, I can only hazard a guess. There is no question in my mind that the ARCA was unauthorized and illegal for lack of public bidding and for being patently disadvantageous to government. 28.ID.; ID.; ID.; FIRST SUPPLEMENT TO VOID AND INEXISTENT ORIGINAL CONCESSION AGREEMENT IS ALSO VOID AND INOPERATIVE; CASE AT BAR. I must emphasize that the First Supplement [FS] is void in two respects. First, it is merely an amendment to the ARCA, upon which it is wholly dependent; therefore, since the ARCA is void, inexistent and not capable of being ratified or amended, it follows that the FS too is void, inexistent and inoperative. Second, even assuming arguendo that the ARCA is somehow remotely valid, nonetheless the FS, in imposing significant new obligations upon government, altered the fundamental terms and stipulations of the ARCA, thus necessitating a public bidding all over again. That the FS was entered into sans public bidding renders it utterly void and inoperative. 29.ID.; ID.; ID.; SECOND SUPPLEMENT IS ALSO VOID AND INOPERATIVE AS IT DID NOT UNDERGO ANY PUBLIC BIDDING. The Second Supplement ("SS") was executed between the government and Piatco on September 4, 2000. It calls for Piatco, acting not as concessionaire of NAIA Terminal III but as a public works contractor, to undertake in the government's stead the clearing, removal, demolition and disposal of improvements, subterranean obstructions and waste materials at the project site. The scope of the works, the procedures involved, and the obligations of the contractor are provided for in Parts II and III of the SS. Section 4.1 sets out the compensation to be paid, listing specific rates per cubic meter of materials for each phase of the work excavation, leveling, removal and disposal, backfilling and dewatering. The amounts collectible by Piatco are to be offset against the Annual Guaranteed Payments it must pay government. Though denominated as Second Supplement, it was nothing less than an entirely new public works contract. Yet it, too, did not undergo any public bidding, for which reason it is also void and inoperative. Not surprisingly, Piatco had to subcontract the works to a certain Wintrack Builders, a firm reputedly owned by a former high-ranking DOTC official. But that is another story altogether.
AaSHED

30.ID.; ID.; ID.; THIRD SUPPLEMENT IS VOID AB INITIO AS IT CREATED A NEW MONETARY OBLIGATION ON THE PART OF THE GOVERNMENT WITHOUT PRIOR APPROPRIATIONS. The Third Supplement (TS) depends upon and is intended to supplement the ARCA as well as the First Supplement, both of which are void and inexistent and not capable of being ratified or amended. It follows that the TS is likewise void, inexistent and inoperative. And even if, hypothetically speaking, both ARCA and FS are valid, still, the Third Supplement imposing as it does significant new obligations upon government would in effect alter the terms and

stipulations of the ARCA in material respects, thus necessitating another public bidding. Since the TS was not subjected to public bidding, it is consequently utterly void as well. At any rate, the TS created new monetary obligations on the part of government, for which there were no prior appropriations. Hence, it follows that the same is, void ab initio. 31.ID.; ID.; ID.; DIRECT GOVERNMENT GUARANTEE IS PROHIBITED IN UNSOLICITED PROPOSALS. Section 4-A of the BOT Law as amended states that unsolicited proposals, such as the NAIA Terminal III Project, may be accepted by government provided inter alia that no direct government guarantee, subsidy or equity is required. In short, such guarantee is prohibited in unsolicited proposals. Section 2(n) of the same legislation defines direct government guarantee as "an agreement whereby the government or any of its agencies or local government units (will) assume responsibility for the repayment of debt directly incurred by the project proponent in implementing the project in case of a loan default." 32.ID.; ID.; ID.; ID.; REASON. In the final analysis, Section 4.04(c)(iv) to (vi) of the ARCA is diametrically at odds with the spirit and the intent of the BOT Law. The law meant to mobilize private resources (the private sector) to take on the burden and the risks of financing the construction, operation and maintenance of relevant infrastructure and development projects for the simple reason that government is not in a position to do so. By the same token, government guarantee was prohibited, since it would merely defeat the purpose and raison d'tre of a build-operate-and-transfer project to be undertaken by the private sector. To the extent that the project proponent is able to obtain loans to fund the project, those risks are shared between the project proponent on the one hand, and its banks and other lenders on the other. But where the proponent or its lenders manage to cajol or coerce the government into extending a guarantee of payment of the loan obligations, the risks assumed by the lenders are passed right back to government. I cannot understand why, in the instant case, government cheerfully assented to reassuming the risks of the project when it gave the prohibited guarantee and thus simply negated the very purpose of the BOT Law and the protection it gives the government. 33.ID.; ID.; ID.; ID.; THE AMOUNT TO BE PAID BY GOVERNMENT IS GREATER OF EITHER THE APPRAISED VALUE OF THE PROJECT OR THE AGGREGATE AMOUNT OF THE MONEYS OWED BY PIATCO; CASE AT BAR. Government's agreement to pay becomes effective in the event of a default by Piatco on any of its loan obligations to the Senior Lenders, and the amount to be paid by government is the greater of either the Appraised Value of Terminal III or the aggregate amount of the moneys owed by Piatco whether to the Senior Lenders or to other entities, including its suppliers, contractors and subcontractors. In effect, therefore, this agreement already constitutes the prohibited assumption by government of responsibility for repayment of Piatco's debts in case of a loan default. In fine, a direct government guarantee. It matters not that there is a roundabout procedure prescribed by Section 4.04(c)(iv), (v) and (vi)

that would require, first, an attempt (albeit unsuccessful) by the Senior Lenders to transfer Piatco's rights to a transferee of their choice; and, second, an effort (equally unsuccessful) to "enter into any other arrangement" with the government regarding the Terminal III facility, before government is required to make good on its guarantee. What is abundantly clear is the fact that, in the devious labyrinthine process detailed in the aforesaid section, it is entirely within the Senior Lenders' power, prerogative and control exercisable via a mere refusal or inability to agree upon "a transferee" or "any other arrangement" regarding the terminal facility to push the process forward to the ultimate contractual cul-de-sac, wherein government will be compelled to abjectly surrender and make good on its guarantee of payment.

34.ID.; ID.; ID.; ID.; PIATCO CONTRACTS ARE GROSSLY LOPSIDED IN FAVOR OF PIATCO AND/OR ITS SENIOR LENDERS. Piatco also argues that there is no proviso requiring government to pay the Senior Lenders in the event of Piatco's default. This is literally true, in the sense that Section 4.04(c)(vi) of ARCA speaks of government making the termination payment to Piatco, not to the lenders. However, it is almost a certainty that the Senior tenders will already have made Piatco sign over to them, ahead of time, its right to receive such payments from government; and/or they may already have had themselves appointed its attorneys-in-fact for the purpose of collecting and receiving such payments. Nevertheless, as petitioners-in-intervention pointed out in their Memorandum, the termination payment is to be made to Piatco, not to the lenders; and there is no provision anywhere in the contract documents to prevent it from diverting the proceeds to its own benefit and/or to ensure that it will necessarily use the same to pay off the Senior Lenders and other creditors, in order to avert the foreclosure of the mortgage and other liens on the terminal facility. Such deficiency puts the interests of government at great risk. Indeed, if the unthinkable were to happen, government would be paying several hundreds of millions of dollars, but the mortgage liens on the facility may still be foreclosed by the Senior Lenders just the same. Consequently, the Piatco contracts are also objectionable for grievously failing to adequately protect government's interests. More accurately, the contracts would consistently weaken and do away with protection of government interests. As such, they are therefore grossly lopsided in favor of Piatco and/or its Senior Lenders.
IAEcaH

35.ID.; ID.; ID.; ID.; AMENDED AND RESTATED CONCESSION AGREEMENT (ARCA) INTENDS TO HAVE ALL PIATCO'S DEBTS COVERED BY THE GUARANTEE. While on this subject, it is well to recall the earlier discussion regarding a particularly noticeable alteration of the concept of "Attendant Liabilities." In Section 1.06 of the CA defining the term, the Piatco debts to be assumed/paid by government were qualified by the phrases recorded and from time to time outstanding in the books of the Concessionaire and actually used for the project. These phrases were eliminated from the ARCA's definition of Attendant Liabilities. Since no explanation has

been forthcoming from Piatco as to the possible justification for such a drastic change, the only conclusion possible is that it intends to have all of its debts covered by the guarantee, regardless of whether or not they are disclosed in its books. This has particular reference to those borrowings which were obtained in violation of the loan covenants requiring Piatco to maintain a minimum 70:30 debt-to-equity ratio, and even if the loan proceeds were not actually used for the project itself. This point brings us back to the guarantee itself. In Section 4.04(c)(vi) of ARCA, the amount which government has guaranteed to pay as termination payment is the greater of either (i) the Appraised Value of the terminal facility or (ii) the aggregate of the Attendant Liabilities. Given that the Attendant Liabilities may include practically any Piatco debt under the sun, it is highly conceivable that their sum may greatly exceed the appraised value of the facility, and government may end up paying very much more than the real worth of Terminal III. (So why did government have to bother with public bidding anyway?) 36.ID.; ID.; ID.; INSTANCES WHEN TERMINATION COMPENSATION MAY BE ALLOWED. Section 7 of the BOT Law as amended in effect provides for the following limited instances when termination compensation may be allowed: 1. Termination by the government through no fault of the project proponent 2. Termination upon the parties' mutual agreement and 3. Termination by the proponent due to government's default on certain major contractual obligations. To emphasize, the law does not permit compensation for the project proponent when contract termination is due to the proponent's own fault or breach of contract. 37.ID.; ID.; ID.; ID.; VIOLATED IN CASE AT BAR. This principle was clearly violated in the Piatco Contracts. The ARCA stipulates that government is to pay termination compensation to Piatco even when termination is initiated by government. Clearly, this condition is not in line with Section 7 of the BOT Law. That provision permits a project proponent to recover the actual expenses it incurred in the prosecution of the project plus a reasonable rate of return not in excess of that provided in the contract; or to be compensated for the equivalent or proportionate contract cost as defined in the contract, in case the government is in default on certain major contractual obligations. 38.ID.; ID.; ID.; ID.; IN TERMINATION COMPENSATION, IT IS INDISPENSABLE THAT THE INTEREST OF GOVERNMENT BE DULY INSURED; NOT PRESENT IN CASE AT BAR. [I]n those instances where such termination compensation is authorized by the BOT Law, it is indispensable that the interest of government be duly insured. Section 5.08 the ARCA mandates insurance coverage for the terminal facility; but all insurance policies are to be assigned, and all proceeds are payable, to the Senior Lenders. In brief, the interest being secured by such coverage is that of the Senior Lenders, not that of government. This can hardly be considered compliance with law.

39.ID.; ID.; ID.; PROHIBITS A DIRECT GOVERNMENT SUBSIDY FOR UNSOLICITED PROPOSALS. It will be recalled that Section 4-A of the BOT Law as amended prohibits not only direct government guarantees, but likewise a direct government subsidy for unsolicited proposals. Section 13.2. b iii. of the 1999 IRR defines a direct government subsidy as encompassing "an agreement whereby the Government . . . will . . . postpone any payments due from the proponent." By any manner of interpretation or application, however, Section 8.01(d) of the ARCA clearly mandates the indefinite postponement of payment of all of Piatco's obligations to the government, in order to ensure that Piatco's obligations to the Senior Lenders are paid in full first. That is nothing more or less than the direct government subsidy prohibited by the BOT Law and the IRR. The fact that Piatco will pay interest on the unpaid amounts owed to government does not change the situation or render the prohibited subsidy any less unacceptable.
DTAIaH

40.ID.; ID.; ID.; GOVERNMENT WILL BE AT THE MERCY OF THE FOREIGN LENDERS; CASE AT BAR. Earlier; I mentioned that Section 8.01(d) of the ARCA completely eliminated the proviso in Section 8.04(d) of the CA which gave government the right to appoint a financial controller to manage the cash position of Piatco during situations of financial distress. Not only has government been deprived of any means of monitoring and managing the situation; worse, as can be seen from Section 8.01(d) above-quoted, the Senior Lenders have effectively locked in on the right to exercise financial controllership over Piatco and to allocate its cash resources to the payment of all amounts owed to the Senior Lenders before allowing any payment to be made to government. In brief, this particular provision of the ARCA has placed in the hands of foreign lenders the power and the authority to determine how much (if at all) and when the Philippine government (as grantor of the franchise) may be allowed to receive from Piatco. In that situation, government will be at the mercy of the foreign lenders. This is a situation completely contrary to the rationale of the BOT Law and to public policy. The aforesaid provision rouses mixed emotions shame and disgust at the parties' (especially the government officials') docile submission and abject servitude and surrender to the imperious and excessive demands of the foreign lenders, on the one hand; and vehement outrage at the affront to the sovereignty of the Republic and to the national honor, on the other. It is indeed time to put an end to such an unbearable, dishonorable situation. 41.ID.; CONSTITUTIONAL LAW; NATIONAL ECONOMY AND PATRIMONY; CONSTITUTION EXPRESSLY PROSCRIBES MAKING A FRANCHISE EXCLUSIVE; VIOLATED IN CASE AT BAR. What was granted to Piatco was not merely a franchise, but an "exclusive right" to operate an international passenger terminal within the "Island of Luzon." What this grant effectively means is that the government is now estopped from exercising its inherent power to award any other person another franchise or a right to operate such a public utility, in the event public interest in Luzon requires it. This restriction is highly detrimental to government and to the public interest. While it cannot be gainsaid that an enterprise that is a public utility may happen to

constitute a monopoly on account of the very nature of its business and the absence of competition, such a situation does not however constitute justification to violate the constitutional prohibition and grant an exclusive franchise or exclusive. right to operate a public utility. Piatco's contention that the Constitution does not actually prohibit monopolies is beside the point. As correctly argued, the existence of a monopoly by a public utility is a situation created by circumstances that do not encourage competition. This situation is different from the grant of a franchise to operate a public utility, a privilege granted by government. Of course, the grant of a franchise may result in a monopoly. But making such franchise exclusive is what is expressly proscribed by the Constitution. 42.ID.; ID.; ID.; EASY PAYMENT PLAN OF PIATCO CONTRACTS VIOLATES THE TIME LIMITATION ON FRANCHISES. Section 11 of Article XII of the Constitution also provides that "no franchise, certificate or any other form of authorization for the operation of a public utility shall be . . . for a longer period than fifty years." After all, a franchise held for an unreasonably long time would likely give rise to the same evils as a monopoly. The Piatco Contracts have come up with an innovative way to circumvent the prohibition and obtain an extension. This fact can be gleaned from Section 8.03(b) of the ARCA [.] The easy payment scheme therein is less beneficial than it first appears. Although it enables government to avoid having to make outright payment of an obligation that will likely run into billions of pesos, this easy payment plan will nevertheless cost government considerable loss of income, which it would earn if it were to operate Terminal III by itself. Inasmuch as payments to the concessionaire (Piatco) will be on "installment basis," interest charges on the remaining unpaid balance would undoubtedly cause the total outstanding balance to swell. Piatco would thus be entitled to remain in the driver's seat and keep operating the terminal for an indefinite length of time.

43.ID.; ID.; ID.; MONOPOLY; ELUCIDATED: Gokongwei Jr. v. Securities and Exchange Commission elucidates the criteria to be employed: "A 'monopoly' embraces any combination the tendency of which is to prevent competition in the broad and general sense, or to control prices to the detriment of the public. In short, it is the concentration of business in the hands of a few. The material consideration in determining its existence is not that prices are raised and competition actually excluded, but that power exists to raise prices or exclude competition when desired." 44.ID.; ID.; ID.; ID.; PIATCO CONTRACTS GIVE THE CONCESSIONAIRE LIMITLESS POWER OVER THE CHARGING OF FEES, RENTALS AND SO FORTH. Aside from creating a monopoly, the Piatco contracts also give the concessionaire virtually limitless power over the charging of fees, rentals and so forth. What little "oversight function" the government might be able and minded to exercise is less than sufficient to protect the public interest[.] It will be noted that Sec. 6.06

(Adjustment of Non-Public Utility Fees and Charges) has no teeth, so the concessionaire can defy the government without fear of any sanction. Moreover, Section 6.06 taken together with Section 6.03(c) of the ARCA falls short of the standard set by the BOT Law as amended, which expressly requires in Section 2(b) that the project proponent is "allowed to charge facility users appropriate tolls, fees, rentals and charges, not exceeding those proposed in its bid or as negotiated and incorporated in the contract . . ." 45.ID.; ID.; BILL OF RIGHTS; PROHIBITION AGAINST IMPAIRMENT OF CONTRACTS; VIOLATED IN CASE AT BAR. By the In-Service Date, Terminal III shall be the only facility to be operated as an international passenger terminal at the NAIA; thus, Terminal I and II shall no longer operate as such, and no one shall be allowed to compete with Piatco in the operation of an international passenger terminal in the NAIA. The bottom line is that, as of the In-Service Date, Terminal III will be the only terminal where the business of providing airport-related services to international airlines and passengers may be conducted at all. Consequently, government through the DOTC/MIAA will be compelled to cease honoring existing contracts with service providers after the In-Service Date, as they cannot be allowed to operate in Terminal III. In short, the CA and the ARCA obligate and constrain government to break its existing contracts with these service providers. 46.ID.; ID.; ID.; PROHIBITION AGAINST DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS; VIOLATED IN CASE AT BAR. Notably, government is not in a position to require Piatco to accommodate the displaced service providers, and it would be unrealistic to think that these service providers can perform their service contracts in some other international airport outside Luzon. Obviously, then, these displaced service providers are to borrow a quaint expression up the river without a paddle. In plainer terms, they will have lost their businesses entirely, in the blink of an eye. Moreover, since the displaced service providers, being unable to operate, will be forced to close shop, their respective employees among them Messrs. Agan and Lopez et al. have very grave cause for concern, as they will find themselves out of employment and bereft of their means of livelihood. This situation comprises still another violation of the constitution prohibition against deprivation of property without due process. True, doing business at the NAIA may be viewed more as a privilege than as a right. Nonetheless, where that privilege has been availed of by the petitioners-inintervention service providers for years on end, a situation arises, similar to that in American Inter-fashion v. GTEB. We held therein that a privilege enjoyed for seven years "evolved into some form of property right which should not be removed . . . arbitrarily and without due process." Said pronouncement is particularly relevant and applicable to the situation at bar because the livelihood of the employees of petitioners-intervenors are at stake.
DaIACS

47.ID.; ID.; ID.; PROHIBITION AGAINST DEPRIVATION OF LIBERTY WITHOUT DUE PROCESS; VIOLATED IN CASE AT BAR. The Piatco Contracts by locking out existing service providers from entry into Terminal III and restricting entry of future service providers, thereby infringed upon the freedom guaranteed to and heretofore enjoyed by international airlines to contract with local service providers of their choice, and vice versa. Both the service providers and their client airlines will be deprived of the right to liberty, which includes the right to enter into all contracts, and/or the right to make a contract in relation to one's business. 48.ID.; LEGISLATIVE DEPARTMENT; PROHIBITION AGAINST DISBURSEMENT OF PUBLIC FUNDS WITHOUT VALID APPROPRIATION; EFFECT. Clearly prohibited by the Constitution is the disbursement of public funds out of the treasury, except in pursuance of an appropriation made by law. The immediate effect of this constitutional ban is that all the various agencies of government are constrained to limit their expenditures to the amounts appropriated by law for each fiscal year; and to carefully count their cash before taking on contractual commitments. 49.ID.; ID.; ID.; EXISTENCE OF APPROPRIATIONS AND THE AVAILABILITY OF FUNDS ARE INDISPENSABLE TO THE EXECUTION OF GOVERNMENT CONTRACTS. [T]his Court has held that "(I)t is quite evident from the tenor of the language of the law that the existence of appropriations and the availability of funds are indispensable pre-requisites to or conditions sine qua non for the execution of government contracts. The obvious intent is to impose such conditions as a priori requisites to the validity of the proposed contract." 50.ID.; ID.; LEGISLATIVE POWER OVER THE PUBLIC PURSE; VIOLATED IN CASE AT BAR. But the particularly sad thing about this transaction between MIAA and DPWH is the fact that both agencies were maneuvered into (or allowed themselves to be maneuvered into) an agreement that would ensure delivery of upgraded roads for Piatco's benefit, using funds not allocated for that purpose. The agreement would then be presented to Congress as a done deal. Congress would thus be obliged to uphold the agreement and support it with the necessary allocations and appropriations for three years, in order to enable DPWH to deliver on its committed repayments to MIAA. The net result is an infringement on the legislative power over the public purse and a diminution of Congress' control over expenditures of public funds a development that would not have come about, were it not for the Supplements. Very clever but very illegal! 51.CIVIL LAW; OBLIGATIONS AND CONTRACTS; CRITERIA FOR DETERMINING WHETHER THE BEST-EFFORTS BASIS WILL APPLY. To determine whether the additional obligations under the Supplements may really be undertaken on a best-efforts basis only, the nature of each of these obligations must be examined in the context of its relevance and significance to the Terminal III Project, as well as of any adverse impact that may result if such obligation is not performed or

undertaken on time. In short, the criteria for determining whether the best-efforts basis will apply is whether the obligations are critical to the success of the Project and, accordingly, whether failure to perform them (or to perform them on time) could result in a material breach of the contract. 52.ID.; ID.; ID.; OBLIGATIONS IN THE SUPPLEMENTS ARE MANDATORY IN CHARACTER AND NOT FOR BEST-EFFORTS COMPLIANCE ONLY. Viewed in this light, the "Additional Special Obligations" set out in Section 4 of the FS take on a different aspect. In particular, each of the following may all be deemed to play a major role in the successful and timely prosecution of the Terminal III Project: the obtention of land required by PIATCO for the taxilane and taxiway; the implementation of government's existing storm drainage master plan; and coordination with DPWH for the completion of the three left-turning overpasses before the In-Service Date, as well as acquisition and delivery of additional land for the construction of the T2-T3 access road. Conversely, failure to deliver on any of these obligations may conceivably result in substantial prejudice to the concessionaire, to such an extent as to constitute a material breach of the Piatco Contracts. Whereupon, the concessionaire may outrightly terminate the Contracts pursuant to Section 8.01 (b)(i) and (ii) of the ARCA and seek payment of Liquidated Damages in accordance with Section 8.02(a) of the ARCA; or the concessionaire may instead require government to pay the Incremental and Consequential Losses under Section 1.23 of the ARCA. The logical conclusion then is that the obligations in the Supplements are not to be performed on a best-efforts basis only, but are unarguably mandatory in character. 53.ID.; ID.; PIATCO CONTRACTS ARE VOID AB INITIO AND INOPERATIVE. I find that all the Piatco contracts, without exception, are void ab initio, and therefore inoperative. Even the very process by which the contracts came into being the bidding and the award has been riddled with irregularities galore and blatant violations of law and public policy, far too many to ignore. There is thus no conceivable way, as proposed by some, of saving one (the original Concession Agreement) while junking all the rest. Neither is it possible to argue for the retention of the Draft Concession Agreement (referred to in the various pleadings as the Contract Bidded Out) as the contract that should be kept in force and effect to govern the situation, inasmuch as it was never executed by the parties. What Piatco and the government executed was the Concession Agreement which is entirely different from the Draft Concession Agreement. 54.ID.; ID.; ID.; KEEPING PIATCO ON AS CONCESSIONAIRE IS UNCONSCIONABLE. Ultimately, though, it would be tantamount to an outrageous, grievous and unforgivable mutilation of public policy and an insult to ourselves if we opt to keep in place a contract any contract for to do so would assume that we agree to having Piatco continue as the concessionaire for Terminal III. Despite all the insidious contraventions of the Constitution, law and public policy Piatco perpetrated, keeping Piatco on as concessionaire and even rewarding it by allowing it to operate and profit

from Terminal III instead of imposing upon it the stiffest sanctions permissible under the laws is unconscionable. It is no exaggeration to say that Piatco may not really mind which contract we decide to keep in place. For all it may care, we can do just as well without one, if we only let it continue and operate the facility. After all, the real money will come not from building the Terminal, but from actually operating it for fifty or more years and charging whatever it feels like, without any competition at all. This scenario must not be allowed to happen.
EAHDac

55.ID.; ID.; ID.; AEDC SHOULD NOT BE ALLOWED TO OPERATE THE TERMINAL III. If the Piatco contracts are junked altogether as I think they should be, should not AEDC automatically be considered the winning bidder and therefore allowed to operate the facility? My answer is a stone-cold 'No.' AEDC never won the bidding, never signed any contract, and never built any facility. Why should it be allowed to automatically step in and benefit from the greed of another? 56.ID.; ID.; ID.; GOVERNMENT SHOULD PAY ALL REASONABLE EXPENSES INCURRED IN THE CONSTRUCTION OF TERMINAL III. Should government pay at all for reasonable expenses incurred in the construction of the Terminal? Indeed it should, otherwise it will be unjustly enriching itself at the expense of Piatco and, in particular, its funders, contractors and investors both local and foreign. After all, there is no question that the State needs and will make use of Terminal III, it being part and parcel of the critical infrastructure and transportation-related programs of government. In Melchor v. Commission on Audit, this Court held that even if the contract therein was void, the principle of payment by quantum meruit was found applicable, and the contractor was allowed to recover the reasonable value of the thing or services rendered (regardless of any agreement as to the supposed value), in order to avoid unjust enrichment on the part of government. The principle of quantum meruit was likewise applied in Eslao v. Commission on Audit, because to deny payment for a building almost completed and already occupied would be to permit government to unjustly enrich itself at the expense of the contractor. The same principle was applied in Republic v. Court of Appeals. 57.ID.; ID.; ID.; POSSIBLE PRACTICAL SOLUTION IS TO BID OUT THE OPERATION OF TERMINAL III. One possible practical solution would be for government in view of the nullity of the Piatco contracts and of the fact that Terminal III has already been built and is almost finished to bid out the operation of the facility under the same or analogous principles as build-operate-and-transfer projects. To be imposed, however, is the condition that the winning bidder must pay the builder of the facility a price fixed by government based on quantum meruit; on the real, reasonable not inflated value of the built facility. How the payment or series of payments to the builder, funders, investors and contractors will be staggered and scheduled, will have to be built into the bids, along with the annual guaranteed payments to government. In this

manner, this whole sordid mess could result in something truly beneficial for all, especially for the Filipino people. VITUG, J., separate dissenting opinion: 1.REMEDIAL LAW; CIVIL PROCEDURE; JURISDICTION; SUPREME COURT IS BEREFT OF JURISDICTION OVER CASES INVOLVING NULLIFICATION OF CONTRACTS. This Court is bereft of jurisdiction to hear the petitions at bar. The Constitution provides that the Supreme Court shall exercise original jurisdiction over, among other actual controversies, petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. The cases in question, although denominated to be petitions for prohibition, actually pray for the nullification of the PIATCO contracts and to restrain respondents from implementing said agreements for being illegal and unconstitutional. 2.ID.; ID.; ID.; SUPREME COURT IS NOT A TRIER OF FACTS. The rule is explicit. A petition for prohibition may be filed against a tribunal, corporation, board, officer or person, exercising judicial, quasi-judicial or ministerial functions. What the petitions seek from respondents do not involve judicial, quasi-judicial or ministerial functions. In prohibition, only legal issues affecting the jurisdiction of the tribunal, board or officer involved may be resolved on the basis of undisputed facts. The parties allege, respectively, contentious evidentiary facts. It would be difficult, if not anomalous, to decide the jurisdictional issue on the basis of the contradictory factual submissions made by the parties. As the Court has so often exhorted, it is not a trier of facts. 3.ID.; ID.; ID.; PETITIONS FOR DECLARATORY RELIEF ARE COGNIZABLE BY THE REGIONAL TRIAL COURT. The petitions, in effect, are in the nature of actions for declaratory relief under Rule 63 of the Rules of Court. The Rules provide that any person interested under a contract may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties thereunder. The Supreme Court assumes no jurisdiction over petitions for declaratory relief which are cognizable by regional trial courts. 4.POLITICAL LAW; SEPARATION OF POWERS; COURT MAY NOT INTRUDE INTO EVERY AFFAIR OF GOVERNMENT. As I have so expressed in Tolentino vs. Secretary of Finance, reiterated in Santiago vs. Guingona, Jr., the Supreme Court should not be thought of as having been tasked with the awesome responsibility of overseeing the entire bureaucracy. Pervasive and limitless, such as it may seem to be under the 1987 Constitution, judicial power still succumbs to the paramount doctrine of separation of powers. The Court may not at good liberty intrude, in the guise of sovereign imprimatur, into every affair of government. What significance can still then remain of the timehonored and widely acclaimed principle of separation of powers if, at every turn, the

Court allows itself to pass upon at will the disposition of a co-equal, independent and coordinate branch in our system of government. I dread to think of the so varied uncertainties that such an undue interference can lead to.

DECISION

PUNO, J :
p

Petitioners and petitioners-in-intervention filed the instant petitions for prohibition under Rule 65 of the Revised Rules of Court seeking to prohibit the Manila International Airport Authority (MIAA) and the Department of Transportation and Communications (DOTC) and its Secretary from implementing the following agreements executed by the Philippine Government through the DOTC and the MIAA and the Philippine International Air Terminals Co., Inc. (PIATCO): (1) the Concession Agreement signed on July 12, 1997, (2) the Amended and Restated Concession Agreement dated November 26, 1999, (3) the First Supplement to the Amended and Restated Concession Agreement dated August 27, 1999, (4) the Second Supplement to the Amended and Restated Concession Agreement dated September 4, 2000, and (5) the Third Supplement to the Amended and Restated Concession Agreement dated June 22, 2001 (collectively, the PIATCO Contracts). The facts are as follows: In August 1989, the DOTC engaged the services of Aeroport de Paris (ADP) to conduct a comprehensive study of the Ninoy Aquino International Airport (NAIA) and determine whether the present airport can cope with the traffic development up to the year 2010. The study consisted of two parts: first, traffic forecasts, capacity of existing facilities, NAIA future requirements, proposed master plans and development plans; and second, presentation of the preliminary design of the passenger terminal building. The ADP submitted a Draft Final Report to the DOTC in December 1989. Some time in 1993, six business leaders consisting of John Gokongwei, Andrew Gotianun, Henry Sy, Sr., Lucio Tan, George Ty and Alfonso Yuchengco met with then President Fidel V. Ramos to explore the possibility of investing in the construction and operation of a new international airport terminal. To signify their commitment to pursue the project, they formed the Asia's Emerging Dragon Corp. (AEDC) which was registered with the Securities and Exchange Commission (SEC) on September 15, 1993.
CSaITD

On October 5, 1994, AEDC submitted an unsolicited proposal to the Government through the DOTC/MIAA for the development of NAIA International Passenger Terminal III

(NAIA IPT III) under a build-operate-and-transfer arrangement pursuant to RA 6957 as amended by RA 7718 (BOT Law). 1 On December 2, 1994, the DOTC issued Dept. Order No. 94-832 constituting the Prequalification Bids and Awards Committee (PBAC) for the implementation of the NAIA IPT III project. On March 27, 1995, then DOTC Secretary Jose Garcia endorsed the proposal of AEDC to the National Economic and Development Authority (NEDA). A revised proposal, however, was forwarded by the DOTC to NEDA on December 13, 1995. On January 5, 1996, the NEDA Investment Coordinating Council (NEDA ICC) Technical Board favorably endorsed the project to the ICC Cabinet Committee which approved the same, subject to certain conditions, on January 19, 1996. On February 13, 1996, the NEDA passed Board Resolution No. 2 which approved the NAIA IPT III Project. On June 7, 14, and 21, 1996, DOTC/MIAA caused the publication in two daily newspapers of an invitation for competitive or comparative proposals on AEDC's unsolicited proposal, in accordance with Sec. 4-A of RA 6957, as amended. The alternative bidders were required to submit three (3) sealed envelopes on or before 5:00 p.m. of September 20, 1996. The first envelope should contain the Prequalification Documents, the second envelope the Technical Proposal, and the third envelope the Financial Proposal of the proponent. On June 20, 1996, PBAC Bulletin No. 1 was issued, postponing the availment of the Bid Documents and the submission of the comparative bid proposals. Interested firms were permitted to obtain the Request for Proposal Documents beginning June 28, 1996, upon submission of a written application and payment of a non-refundable fee of P50,000.00 (US$2,000). The Bid Documents issued by the PBAC provided among others that the proponent must have adequate capability to sustain the financing requirement for the detailed engineering, design, construction, operation, and maintenance phases of the project. The proponent would be evaluated based on its ability to provide a minimum amount of equity to the project, and its capacity to secure external financing for the project.

On July 23, 1996, the PBAC issued PBAC Bulletin No. 2 inviting all bidders to a pre-bid conference on July 29, 1996. On August 16, 1996, the PBAC issued PBAC Bulletin No. 3 amending the Bid Documents. The following amendments were made on the Bid Documents:

a.Aside from the fixed Annual Guaranteed Payment, the proponent shall include in its financial proposal an additional percentage of gross revenue share of the Government, as follows:
i.First 5 years5.0% ii.Next 10 years7.5% iii.Next 10 years10.0%

b.The amount of the fixed Annual Guaranteed Payment shall be subject of the price challenge. Proponent may offer an Annual Guaranteed Payment which need not be of equal amount, but payment of which shall start upon site possession. c.The project proponent must have adequate capability to sustain the financing requirement for the detailed engineering, design, construction, and/or operation and maintenance phases of the project as the case may be. For purposes of pre-qualification, this capability shall be measured in terms of: i.Proof of the availability of the project proponent and/or the consortium to provide the minimum amount of equity for the project; and ii.a letter testimonial from reputable banks attesting that the project proponent and/or the members of the consortium are banking with them, that the project proponent and/or the members are of good financial standing, and have adequate resources. d.The basis for the prequalification shall be the proponent's compliance with the minimum technical and financial requirements provided in the Bid Documents and the IRR of the BOT Law. The minimum amount of equity shall be 30% of the Project Cost.
CSaITD

e.Amendments to the draft Concession Agreement shall be issued from time to time. Said amendments shall only cover items that would not materially affect the preparation of the proponent's proposal. On August 29, 1996, the Second Pre-Bid Conference was held where certain clarifications were made. Upon the request of prospective bidder People's Air Cargo & Warehousing Co., Inc (Paircargo), the PBAC warranted that based on Sec. 11.6, Rule 11 of the Implementing Rules and Regulations of the BOT Law, only the proposed Annual

Guaranteed Payment submitted by the challengers would be revealed to AEDC, and that the challengers' technical and financial proposals would remain confidential. The PBAC also clarified that the list of revenue sources contained in Annex 4.2a of the Bid Documents was merely indicative and that other revenue sources may be included by the proponent, subject to approval by DOTC/MIAA. Furthermore, the PBAC clarified that only those fees and charges denominated as Public Utility Fees would be subject to regulation, and those charges which would be actually deemed Public Utility Fees could still be revised, depending on the outcome of PBAC's query on the matter with the Department of Justice. In September 1996, the PBAC issued Bid Bulletin No. 5, entitled "Answers to the Queries of PAIRCARGO as Per Letter Dated September 3 and 10, 1996." Paircargo's queries and the PBAC's responses were as follows:
1.It is difficult for Paircargo and Associates to meet the required minimum equity requirement as prescribed in Section 8.3.4 of the Bid Documents considering that the capitalization of each member company is so structured to meet the requirements and needs of their current respective business undertaking/activities. In order to comply with this equity requirement, Paircargo is requesting PBAC to just allow each member of (sic) corporation of the joint Venture to just execute an agreement that embodies a commitment to infuse the required capital in case the project is awarded to the Joint Venture instead of increasing each corporation's current authorized capital stock just for prequalification purposes. In prequalification, the agency is interested in one's financial capability at the time of prequalification, not future or potential capability. A commitment to put up equity once awarded the project is not enough to establish that "present" financial capability. However, total financial capability of all member companies of the Consortium, to be established by submitting the respective companies' audited financial statements, shall be acceptable. 2.At present, Paircargo is negotiating with banks and other institutions for the extension of a Performance Security to the joint venture in the event that the Concessions Agreement (sic) is awarded to them. However, Paircargo is being required to submit a copy of the draft concession as one of the documentary requirements. Therefore, Paircargo is requesting that they'd (sic) be furnished copy of the approved negotiated agreement between the PBAC and the AEDC at the soonest possible time. A copy of the draft Concession Agreement is included in the Bid Documents. Any material changes would be made known to prospective challengers through bid bulletins. However, a final version will be issued before the award of contract.
SECAHa

The PBAC also stated that it would require AEDC to sign Supplement C of the Bid Documents (Acceptance of Criteria and Waiver of Rights to Enjoin Project) and to submit the same with the required Bid Security. On September 20, 1996, the consortium composed of People's Air Cargo and Warehousing Co., Inc. (Paircargo), Phil. Air and Grounds Services, Inc. (PAGS) and Security Bank Corp. (Security Bank) (collectively, Paircargo Consortium) submitted their competitive proposal to the PBAC. On September 23, 1996, the PBAC opened the first envelope containing the prequalification documents of the Paircargo Consortium. On the following day, September 24, 1996, the PBAC prequalified the Paircargo Consortium. On September 26, 1996, AEDC informed the PBAC in writing of its reservations as regards the Paircargo Consortium, which include: a.The lack of corporate approvals and financial capability of PAIRCARGO; b.The lack of corporate approvals and financial capability of PAGS; c.The prohibition imposed by RA 337, as amended (the General Banking Act) on the amount that Security Bank could legally invest in the project; d.The inclusion of Siemens as a contractor of the PAIRCARGO Joint Venture, for prequalification purposes; and e.The appointment of Lufthansa as the facility operator, in view of the Philippine requirement in the operation of a public utility. The PBAC gave its reply on October 2, 1996, informing AEDC that it had considered the issues raised by the latter, and that based on the documents submitted by Paircargo and the established prequalification criteria, the PBAC had found that the challenger, Paircargo, had prequalified to undertake the project. The Secretary of the DOTC approved the finding of the PBAC. The PBAC then proceeded with the opening of the second envelope of the Paircargo Consortium which contained its Technical Proposal. On October 3, 1996, AEDC reiterated its objections, particularly with respect to Paircargo's financial capability, in view of the restrictions imposed by Section 21-B of the General Banking Act and Sections 1380 and 1381 of the Manual Regulations for Banks and Other Financial Intermediaries. On October 7, 1996, AEDC again manifested its objections and requested that it be furnished with excerpts of the PBAC meeting and

the accompanying technical evaluation report where each of the issues they raised were addressed. On October 16, 1996, the PBAC opened the third envelope submitted by AEDC and the Paircargo Consortium containing their respective financial proposals. Both proponents offered to build the NAIA Passenger Terminal III for at least $350 million at no cost to the government and to pay the government: 5% share in gross revenues for the first five years of operation, 7.5% share in gross revenues for the next ten years of operation, and 10%. share in gross revenues for the last ten years of operation, in accordance with the Bid Documents. However, in addition to the foregoing, AEDC offered to pay the government a total of P135 million as guaranteed payment for 27 years while Paircargo Consortium offered to pay the government a total of P17.75 billion for the same period.
CSaITD

Thus, the PBAC formally informed AEDC that it had accepted the price proposal submitted by the Paircargo Consortium, and gave AEDC 30 working days or until November 28, 1996 within which to match the said bid, otherwise, the project would be awarded to Paircargo. As AEDC failed to match the proposal within the 30-day period, then DOTC Secretary Amado Lagdameo, on December 11, 1996, issued a notice to Paircargo Consortium regarding AEDC's failure to match the proposal. On February 27, 1997, Paircargo Consortium incorporated into Philippine International Airport Terminals Co., Inc. (PIATCO). AEDC subsequently protested the alleged undue preference given to PIATCO and reiterated its objections as regards the prequalification of PIATCO. On April 11, 1997, the DOTC submitted the concession agreement for the second-pass approval of the NEDA-ICC, On April 16, 1997, AEDC filed with the Regional Trial Court of Pasig a Petition for Declaration of Nullity of the Proceedings, Mandamus and Injunction against the Secretary of the DOTC, the Chairman of the PBAC, the voting members of the PBAC and Pantaleon D. Alvarez, in his capacity as Chairman of the PBAC Technical Committee. On April 17, 1997, the NEDA-ICC conducted an ad referendum to facilitate the approval, on a no-objection basis, of the BOT agreement between the DOTC and PIATCO. As the ad referendum gathered only four (4) of the required six (6) signatures, the NEDA merely noted the agreement. On July 9, 1997, the DOTC issued the notice of award for the project to PIATCO.

On July 12, 1997, the Government, through then DOTC Secretary Arturo T. Enrile, and PIATCO, through its President, Henry T. Go, signed the "Concession Agreement for the Build-Operate-and-Transfer Arrangement of the Ninoy Aquino International Airport Passenger Terminal III" (1997 Concession Agreement). The Government granted PIATCO the franchise to operate and maintain the said terminal during the concession period and to collect the fees, rentals and other charges in accordance with the rates or schedules stipulated in the 1997 Concession Agreement. The Agreement provided that the concession period shall be for twenty-five (25) years commencing from the in-service date, and may be renewed at the option of the Government for a period not exceeding twenty-five (25) years. At the end of the concession period, PIATCO shall transfer the development facility to MIAA.

On November 26, 1998, the Government and PIATCO signed an Amended and Restated Concession Agreement (ARCA). Among the provisions of the 1997 Concession Agreement that were amended by the ARCA were: Sec. 1.11 pertaining to the definition of "certificate of completion"; Sec. 2.05 pertaining to the Special Obligations of GRP; Sec. 3.02 (a) dealing with the exclusivity of the franchise given to the Concessionaire; Sec. 4.04 concerning the assignment by Concessionaire of its interest in the Development Facility; Sec. 5.08 (c) dealing with the proceeds of Concessionaire's insurance; Sec. 5.10 with respect to the temporary take-over of operations by GRP; Sec. 5.16 pertaining to the taxes, duties and other imposts that may be levied on the Concessionaire; Sec. 6.03 as regards the periodic adjustment of public utility fees and charges; the entire Article VIII concerning the provisions on the termination of the contract; and Sec. 10.02 providing for the venue of the arbitration proceedings in case a dispute or controversy arises between the parties to the agreement. Subsequently, the Government and PIATCO signed three Supplements to the ARCA. The First Supplement was signed on August 27, 1999; the Second Supplement on September 4, 2000; and the Third Supplement on June 22, 2001 (collectively, Supplements). The First Supplement to the ARCA amended Sec. 1.36 of the ARCA defining "Revenues" or "Gross Revenues"; Sec. 2.05 (d) of the ARCA referring to the obligation of MIAA to provide sufficient funds for the upkeep, maintenance, repair and/or replacement of all airport facilities and equipment which are owned or operated by MIAA; and further providing additional special obligations on the part of GRP aside from those already enumerated in Sec. 2.05 of the ARCA. The First Supplement also provided a stipulation as regards the construction of a surface road to connect NAIA Terminal II and Terminal III in lieu of the proposed access tunnel crossing Runway 13/31; the swapping of obligations between GRP and PIATCO regarding the improvement of Sales Road; and the changes in the timetable. It also amended Sec. 6.01

(c) of the ARCA pertaining to the Disposition of Terminal Fees; Sec. 6.02 of the ARCA by inserting an introductory paragraph; and Sec. 6.02 (a) (iii) of the ARCA referring to the Payments of Percentage, Share in Gross Revenues.
CSaITD

The Second Supplement to the ARCA contained provisions concerning the clearing, removal, demolition or disposal of subterranean structures uncovered or discovered at the site of the construction of the terminal by the Concessionaire. It defined the scope of works; it provided for the procedure for the demolition of the said structures and the consideration for the same which the GRP shall pay PIATCO; it provided for time extensions, incremental and consequential costs and losses consequent to the existence of such structures; and it provided for some additional obligations on the part of PIATCO as regards the said structures. Finally, the Third Supplement provided for the obligations of the Concessionaire as regards the construction of the surface road connecting Terminals II and III. Meanwhile, the MIAA which is charged with the maintenance and operation of the NAIA Terminals I and II, had existing concession contracts with various service providers to offer international airline airport services, such as in-flight catering, passenger handling, ramp and ground support, aircraft maintenance and provisions, cargo handling and warehousing, and other services, to several international airlines at the NAIA. Some of these service providers are the Miascor Group, DNATA-Wings Aviation Systems Corp., and the MacroAsia Group. Miascor, DNATA and MacroAsia, together with Philippine Airlines (PAL), are the dominant players in the industry with an aggregate market share of 70%. On September 17, 2002, the workers of the international airline service providers, claiming that they stand to lose their employment upon the implementation of the questioned agreements, filed before this Court a petition for prohibition to enjoin the enforcement of said agreements. 2 On October 15, 2002, the service providers, joining the cause of the petitioning workers, filed a motion for intervention and a petition-in-intervention. On October 24, 2002, Congressmen Salacnib Baterina, Clavel Martinez and Constantino Jaraula filed a similar petition with this Court. 3 On November 6, 2002, several employees of the MIAA likewise filed a petition assailing the legality of the various agreements. 4 On December 11, 2002. another group of Congressmen, Hon. Jacinto V. Paras, Rafael P. Nantes, Eduardo C. Zialcita, Willie B. Villarama, Prospero C. Nograles, Prospero A. Pichay, Jr., Harlin Cast Abayon and Benasing O. Macaranbon, moved to intervene in the

case as Respondents-Intervenors. They filed their Comment-In-Intervention defending the validity of the assailed agreements and praying for the dismissal of the petitions. During the pendency of the case before this Court, President Gloria Macapagal Arroyo, on November 29, 2002, in her speech at the 2002 Golden Shell Export Awards at Malacaang Palace, stated that she will not "honor (PIATCO) contracts which the Executive Branch's legal offices have concluded (as) null and void." 5 Respondent PIATCO filed its Comments to the present petitions on November 7 and 27, 2002. The Office of the Solicitor General and the Office of the Government Corporate Counsel filed their respective Comments in behalf of the public respondents. On December 10, 2002, the Court heard the case on oral argument. After the oral argument, the Court then resolved in open court to require the parties to file simultaneously their respective Memoranda in amplification of the issues heard in the oral arguments within 30 days and to explore the possibility of arbitration or mediation as provided in the challenged contracts.
CSaITD

In their consolidated Memorandum, the Office of the Solicitor General and the Office of the Government Corporate Counsel prayed that the present petitions be given due course and that judgment be rendered declaring the 1997 Concession Agreement, the ARCA and the Supplements thereto void for being contrary to the Constitution, the BOT Law and its Implementing Rules and Regulations. On March 6, 2003, respondent PIATCO informed the Court that on March 4, 2003 PIATCO commenced arbitration proceedings before the International Chamber of Commerce, International Court of Arbitration (ICC) by filing a Request for Arbitration with the Secretariat of the ICC against the Government of the Republic of the Philippines acting through the DOTC and MIAA. In the present cases, the Court is again faced with the task of resolving complicated issues made difficult by their intersecting legal and economic implications. The Court is aware of the far reaching fall out effects of the ruling which it makes today. For more than a century and whenever the exigencies of the times demand it, this Court has never shirked from its solemn duty to dispense justice and resolve "actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction." 6 To be sure, this Court will not begin to do otherwise today. We shall first dispose of the procedural issues raised by respondent PIATCO which they allege will bar the resolution of the instant controversy.

Petitioners' Legal Standing to File the present Petitions a.G.R. Nos. 155001 and 155661 In G.R. No. 155001 individual petitioners are employees of various service providers 7 having separate concession contracts with MIAA and continuing service agreements with various international airlines to provide in-flight catering, passenger handling, ramp and ground support, aircraft maintenance and provisions, cargo handling and warehousing and other services. Also included as petitioners are labor unions MIASCOR Workers Union-National Labor Union and Philippine Airlines Employees Association, These petitioners filed the instant action for prohibition as taxpayers and as parties whose rights and interests stand to be violated by the implementation of the PIATCO Contracts. Petitioners-Intervenors in the same case are all corporations organized and existing under Philippine laws engaged in the business of providing in-flight catering, passenger handling, ramp and ground support, aircraft maintenance and provisions, cargo handling and warehousing and other services to several international airlines at the Ninoy Aquino International Airport. Petitioners-Intervenors allege that as tax-paying international airline and airport-related service operators, each one of them stands to be irreparably injured by the implementation of the PIATCO Contracts. Each of the petitionersintervenors have separate and subsisting concession agreements with MIAA and with various international airlines which they allege are being interfered with and violated by respondent PIATCO. In G.R. No. 155661, petitioners constitute employees of MIAA and Samahang Manggagawa sa Paliparan ng Pilipinas a legitimate labor union and accredited as the sole and exclusive bargaining agent of all the employees in MIAA. Petitioners anchor their petition for prohibition on the nullity of the contracts entered into by the Government and PIATCO regarding the build-operate-and-transfer of the NAIA IPT III. They filed the petition as taxpayers and persons who have a legitimate interest to protect in the implementation of the PIATCO Contracts. Petitioners in both cases raise the argument that the PIATCO Contracts contain stipulations which directly contravene numerous provisions of the Constitution, specific provisions of the BOT Law and its Implementing Rules and Regulations, and public policy. Petitioners contend that the DOTC and the MIAA, by entering into said contracts, have committed grave abuse of discretion amounting to lack or excess of jurisdiction which can be remedied only by a writ of prohibition, there being no plain, speedy or adequate remedy in the ordinary course of law.

In particular, petitioners assail the provisions in the 1997 Concession Agreement and the ARCA which grant PIATCO the exclusive right to operate a commercial international passenger terminal within the Island of Luzon, except those international airports already existing at the time of the execution of the agreement. The contracts further provide that upon the commencement of operations at the NAIA IPT III, the Government shall cause the closure of Ninoy Aquino International Airport Passenger Terminals I and II as international passenger terminals. With respect to existing concession agreements between MIAA and international airport service providers regarding certain services or operations, the 1997 Concession Agreement and the ARCA uniformly provide that such services or operations will not be carried over to the NAIA IPT III and PIATCO is under no obligation to permit such carry over except through a separate agreement duly entered into with PIATCO. 8 With respect to the petitioning service providers and their employees, upon the commencement of operations of the NAIA IPT III, they allege that they will be effectively barred from providing international airline airport services at the NAIA Terminals I and II as all international airlines and passengers will be diverted to the NAIA IPT III. The petitioning service providers will thus be compelled to contract with PIATCO alone for such services, with no assurance that subsisting contracts with MIAA and other international airlines will be respected. Petitioning service providers stress that despite the very competitive market, the substantial capital investments required and the high rate of fees, they entered into their respective contracts with the MIAA with the understanding that the said contracts will be in force for the stipulated period, and thereafter, renewed so as to allow each of the petitioning service providers to recoup their investments and obtain a reasonable return thereon. Petitioning employees of various service providers at the NAIA Terminals I and II and of MIAA on the other hand allege that with the closure of the NAIA Terminals I and II as international passenger terminals under the PIATCO Contracts, they stand to lose employment. The question on legal standing is whether such parties have "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." 9 Accordingly, it has been held that the interest of a person assailing the constitutionality of a statute must be direct and personal. He must be able, to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of. 10

We hold that petitioners have the requisite standing. In the abovementioned cases, petitioners have a direct and substantial interest to protect by reason of the implementation of the PIATCO Contracts. They stand to lose their source of livelihood, a property right which is zealously protected by the Constitution. Moreover, subsisting concession agreements between MIAA and petitioners-intervenors and service contracts between international airlines and petitioners-intervenors stand to be nullified or terminated by the operation of the NAIA IPT III under the PIATCO Contracts. The financial prejudice brought about by the PIATCO Contracts on petitioners and petitioners-intervenors in these cases are legitimate interests sufficient to confer on them the requisite standing to file the instant petitions.
CSaITD

b.G.R. No. 155547 In G.R. No. 155547, petitioners filed the petition for prohibition as members of the House of Representatives, citizens and taxpayers. They allege that as members of the House of Representatives, they are especially interested in the PIATCO Contracts, because the contracts compel the Government and/or the House of Representatives to appropriate funds necessary to comply with the provisions therein. 11 They cite provisions of the PIATCO Contracts which require disbursement of unappropriated amounts in compliance with the contractual obligations of the Government. They allege that the Government obligations in the PIATCO Contracts which compel government expenditure without appropriation is a curtailment of their prerogatives as legislators, contrary to the mandate of the Constitution that "[n]o money shall be paid out of the treasury except in pursuance of an appropriation made by law." 12 Standing is a peculiar concept in constitutional law because in some cases, suits are not brought by parties who have been personally injured by the operation of a law or any other government act but by concerned citizens, taxpayers or voters who actually sue in the public interest. Although we are not unmindful of the cases of Imus Electric Co. v. Municipality of Imus 13 and Gonzales v. Raquiza 14 wherein this Court held that appropriation must be made only on amounts immediately demandable, public interest demands that we take a more liberal view in determining whether the petitioners suing as legislators, taxpayers and citizens have locus standi to file the instant petition. In Kilosbayan, Inc. v. Guingona, 15 this Court held "[i]n line with the liberal policy of this Court on locus standi, ordinary taxpayers, members of Congress, and even association of planters, and non-profit civic organizations were allowed to initiate and prosecute actions before this Court to question the constitutionality or validity of laws, acts, decisions, rulings, or orders of various government agencies or instrumentalities," 16 Further, "insofar as taxpayers' suits are concerned . . . (this Court) is not devoid of discretion as to whether or not it should be entertained." 17 As such ". . . even if, strictly speaking, they [the petitioners] are not covered by the definition, it is still within the wide discretion of the Court to waive the requirement and so remove the impediment to its addressing and resolving the serious constitutional questions raised." 18 In view of the serious legal

questions involved and their impact on public interest, we resolve to grant standing to the petitioners. Other Procedural Matters Respondent PIATCO further alleges that this Court is without jurisdiction to review the instant cases as factual issues are involved which this Court is ill-equipped to resolve. Moreover, PIATCO alleges that submission of this controversy to this Court at the first instance is a violation of the rule on hierarchy of courts. They contend that trial courts have concurrent jurisdiction with this Court with respect to a special civil action for prohibition and hence, following the rule on hierarchy of courts, resort must first be had before the trial courts. After a thorough study and careful evaluation of the issues involved, this Court is of the view that the crux of the instant controversy involves significant legal questions. The facts necessary to resolve these legal questions are well established and, hence, need not be determined by a trial court. The rule on hierarchy of courts will not also prevent this Court from assuming jurisdiction over the cases at bar. The said rule may be relaxed when the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances justify availment of a remedy within and calling for the exercise of this Court's primary jurisdiction. 19 It is easy to discern that exceptional circumstances exist in the cases at bar that call for the relaxation of the rule. Both petitioners and respondents agree that these cases are of transcendental importance as they involve the construction and operation of the country's premier international airport. Moreover, the crucial issues submitted for resolution are of first impression and they entail the proper legal interpretation of key provisions of the Constitution, the BOT Law and its Implementing Rules and Regulations. Thus, considering the nature of the controversy before the Court, procedural bars may be lowered to give way for the speedy disposition of the instant cases. Legal Effect of the Commencement of Arbitration Proceedings by PIATCO There is one more procedural obstacle which must be overcome. The Court is aware that arbitration proceedings pursuant to Section 10.02 of the ARCA have been filed at the instance of respondent PIATCO. Again, we hold that the arbitration step taken by PIATCO will not oust this Court of its jurisdiction over the cases at bar.

In Del Monte Corporation-USA v. Court of Appeals, 20 even after finding that the arbitration clause in the Distributorship Agreement in question is valid and the dispute between the parties is arbitrable, this Court affirmed the trial court's decision denying petitioner's Motion to Suspend Proceedings pursuant to the arbitration clause under the contract. In so ruling, this Court held that as contracts produce legal effect between the parties, their assigns and heirs, only the parties to the Distributorship Agreement are bound by its terms, including the arbitration clause stipulated therein. This Court ruled that arbitration proceedings could be called for but only with respect to the parties to the contract in question. Considering that there are parties to the case who are neither parties to the Distributorship Agreement nor heirs or assigns of the parties thereto, this Court, citing its previous ruling in Salas, Jr. v. Laperal Realty Corporation, 21 held that to tolerate the splitting of proceedings by allowing arbitration as to some of the parties on the one hand and trial for the others on the other hand would, in effect, result in multiplicity of suits, duplicitous procedure and unnecessary delay. 22 Thus, we ruled that the interest of justice would best be served if the trial court hears and adjudicates the case in a single and complete proceeding.

It is established that petitioners in the present cases who have presented legitimate interests in the resolution of the controversy are not parties to the PIATCO Contracts. Accordingly, they cannot be bound by the arbitration clause provided for in the ARCA and hence, cannot be compelled to submit to arbitration proceedings. A speedy and decisive resolution of all the critical issues in the present controversy, including those raised by petitioners, cannot be made before an arbitral tribunal. The object of arbitration is precisely to allow an expeditious determination of a dispute. This objective would not be met if this Court were to allow the parties to settle the cases by arbitration as there are certain issues involving non-parties to the PIATCO Contracts which the arbitral tribunal will not be equipped to resolve. Now, to the merits of the instant controversy. I Is PIATCO a qualified bidder? Public respondents argue that the Paircargo Consortium, PIATCO's predecessor, was not a duly pre-qualified bidder on the unsolicited proposal submitted by AEDC as the Paircargo Consortium failed to meet the financial capability required under the BOT Law and the Bid Documents. They allege that in computing the ability of the Paircargo Consortium to meet the minimum equity requirements for the project, the entire net worth of Security Bank, a member of the consortium, should not be considered. PIATCO relies, on the other hand, on the strength of the Memorandum dated October 14, 1996 issued by the DOTC Undersecretary Primitivo C. Cal stating that the Paircargo

Consortium is found to have a combined net worth of P3,900,000,000.00, sufficient to meet the equity requirements of the project. The said Memorandum was in response to a letter from Mr. Antonio Henson of AEDC to President Fidel V. Ramos questioning the financial capability of the Paircargo Consortium on the ground that it does not have the financial resources to put up the required minimum equity of P2,700,000,000.00. This contention is based on the restriction under R.A. No. 337, as amended or the General Banking Act that a commercial bank cannot invest in any single enterprise in an amount more than 15% of its net worth. In the said Memorandum, Undersecretary Cal opined:
The Bid Documents, as clarified through Bid Bulletin Nos. 3 and 5, require that financial capability will be evaluated based on total financial capability of all the member companies of the [Paircargo] Consortium. In this connection, the Challenger was found to have a combined net worth of P3,926,421,242.00 that could support a project costing approximately P13 Billion.
CSaITD

It is not a requirement that the net worth must be "unrestricted." To impose that as a requirement now will be nothing less than unfair. The financial statement or the net worth is not the sole basis in establishing financial capability. As stated in Bid Bulletin No. 3, financial capability may also be established by testimonial letters issued by reputable banks. The Challenger has complied with this requirement. To recap, net worth reflected in the Financial Statement should not be taken as the amount of the money to be used to answer the required thirty percent (30%) equity of the challenger but rather to be used in establishing if there is enough basis to believe that the challenger can comply with the required 30% equity. In fact, proof of sufficient equity is required as one of the conditions for award of contract (Section 12.1 IRR of the BOT Law) but not for pre-qualification (Section 5.4 of the same document). 23

Under the BOT Law, in case of a build-operate-and-transfer arrangement, the contract shall be awarded to the bidder "who, having satisfied the minimum financial, technical, organizational and legal standards" required by the law, has submitted the lowest bid and most favorable terms of the project, 24 Further, the 1994 Implementing Rules and Regulations of the BOT Law provide:
Section 5.4Pre-qualification Requirements. xxx xxx xxx c.Financial Capability: The project proponent must have adequate capability to sustain the financing requirements for the detailed engineering design, construction and/or operation and maintenance phases of the project, as the case may be. For purposes of pre-qualification, this capability shall be measured in

terms of (i) proof of the ability of the project proponent and/or the consortium to provide a minimum amount of equity to the project, and (ii) a letter testimonial from reputable banks attesting that the project proponent and/or members of the consortium are banking with them, that they are in good financial standing, and that they have adequate resources. The government agency/LGU concerned shall determine on a project-to-project basis and before pre-qualification, the minimum amount of equity needed. (Italics supplied)

Pursuant to this provision, the PBAC issued PBAC Bulletin No. 3 dated August 16, 1996 amending the financial capability requirements for pre-qualification of the project proponent as follows: 6.Basis of Pre-qualification The basis for the pre-qualification shall be on the compliance of the proponent to the minimum technical and financial requirements provided in the Bid Documents and in the IRR of the BOT Law, R.A. No. 6957, as amended by R.A. 7718. The minimum amount of equity to which the proponent's financial capability will be based shall be thirty percent (30%) of the project cost instead of the twenty percent (20%) specified in Section 3.6.4 of the Bid Documents. This is to correlate with the required debt-to-equity ratio of 70:30 in Section 2.01a of the draft concession agreement, The debt portion of the project financing should not exceed 70% of the actual project cost. Accordingly, based on the above provisions of law, the Paircargo Consortium or any challenger to the unsolicited proposal of AEDC has to show that it possesses the requisite financial capability to undertake the project in the minimum amount of 30% of the project cost through (i) proof of the ability to provide a minimum amount of equity to the project, and (ii) a letter testimonial from reputable banks attesting that the project proponent or members of the consortium are banking with them, that they are in good financial standing, and that they have adequate resources. As the minimum project cost was estimated to be US$350,000,000.00 or roughly P9,183,650,000.00, 25 the Paircargo Consortium had to show to the satisfaction of the PBAC that it had the ability to provide the minimum equity for the project in the amount of at least P2,755,095,000.00. Paircargo's Audited Financial Statements as of 1993 and 1994 indicated that it had a net worth of P2,783,592,00 and P3,123,515,00 respectively. 26 PAGS' Audited Financial Statements as of 1995 indicate that it has approximately P26,735,700.00 to invest as its equity for the project. 27 Security Bank's Audited Financial Statements as of 1995 show

that it has a net worth equivalent to its capital funds in the amount of P3,523,504,377.00. 28 We agree with public respondents that with respect to Security Bank, the entire amount of its net worth could not be invested in a single undertaking or enterprise, whether allied or non-allied in accordance with the provisions of R.A. No. 337, as amended or the General Banking Act:
Sec. 21-B.The provisions in this or in any other Act to the contrary notwithstanding, the Monetary Board, whenever it shall deem appropriate and necessary to further national development objectives or support national priority projects, may authorize a commercial bank, a bank authorized to provide commercial banking services, as well as a government-owned and controlled bank, to operate under an expanded commercial banking authority and by virtue thereof exercise, in addition to powers authorized for commercial banks, the powers of an Investment House as provided in Presidential Decree No. 129, invest in the equity of a non-allied undertaking, or own a majority or all of the equity in a financial intermediary other than a commercial bank or a bank authorized to provide commercial banking services; Provided, That (a) the total investment in equities shall not exceed fifty percent (50%) of the net worth of the bank; (b) the equity investment in any one enterprise whether allied or nonallied shall not exceed fifteen percent (15%) of the net worth of the bank; (c) the equity investment of the bank, or of its wholly or majority-owned subsidiary, in a single non-allied undertaking shall not exceed thirty-five percent (35%) of the total equity in the enterprise nor shall it exceed thirty-five percent (35%) of the voting stock in that enterprise; and (d) the equity investment in other banks shall be deducted from the investing bank's net worth for purposes of computing the prescribed ratio of net worth to risk assets. xxx xxx xxx

Further, the 1993 Manual of Regulations for Banks provides:

SECTION X383.Other Limitations and Restrictions. The following limitations and restrictions shall also apply regarding equity investments of banks. a.In any single enterprise. The equity investments of banks in any single enterprise shall not exceed at any time fifteen percent (15%) of the net worth of the 'investing bank as defined in Sec. X106 and Subsec. X121.5.
CSaITD

Thus, the maximum amount that Security Bank could validly invest in the Paircargo Consortium is only P528,525,656.55, representing 15% of its entire net worth. The total net worth therefore of the Paircargo Consortium, after considering the maximum amounts that may be validly invested by each of its members is P558,384,871.55 or only 6.08% of

the project cost, 29 an amount substantially less than the prescribed minimum equity investment required for the project in the amount of P2,755,095,000.00 or 30% of the project cost. The purpose of pre-qualification in any public bidding is to determine, at the earliest opportunity, the ability of the bidder to undertake the project. Thus, with respect to the bidder's financial capacity at the pre-qualification stage, the law requires the government agency to examine and determine the ability of the bidder to fund the entire cost of the project by considering the maximum amounts that each bidder may invest in the project at the time of pre-qualification.

The PBAC has determined that any prospective bidder, for the construction, operation and maintenance of the NAIA IPT III project should prove that it has the ability to provide equity in the minimum amount of 30% of the project cost, in accordance with the 70:30 debt-to-equity ratio prescribed in the Bid Documents. Thus, in the case of Paircargo Consortium, the PBAC should determine the maximum amounts that each member of the consortium may commit for the construction, operation and maintenance of the NAIA IPT III project at the time of pre-qualification. With respect to Security Bank, the maximum amount which may be invested by it would only be 15% of its net worth in view of the restrictions imposed by the General Banking Act. Disregarding the investment ceilings provided by applicable law would not result in a proper evaluation of whether or not a bidder is pre-qualified to undertake the project as for all intents and purposes, such ceiling or legal restriction determines the true maximum amount which a bidder may invest in the project. Further, the determination of whether or not a bidder is pre-qualified to undertake the project requires an evaluation of the financial capacity of the said bidder at the time the bid is submitted based on the required documents presented by the bidder. The PBAC should not be allowed to speculate on the future financial ability of the bidder to undertake the project on the basis of documents submitted. This would open doors to abuse and defeat the very purpose of a public bidding. This is especially true in the case at bar which involves the investment of billions of pesos by the project proponent. The relevant government authority is duty-bound to ensure that the awardee of the contract possesses the minimum required financial capability to complete the project. To allow the PBAC to estimate the bidder's future financial capability would not secure the viability and integrity of the project. A restrictive and conservative application of the rules and procedures of public bidding is necessary not only to protect the impartiality and regularity of the proceedings but also to ensure the financial and technical reliability of the project. It has been held that:

The basic rule in public bidding is that bids should be evaluated based on the required documents submitted before and not after the opening of bids. Otherwise, the foundation of a fair and competitive public bidding would be defeated. Strict observance of the rules, regulations, and guidelines of the bidding process is the only safeguard to a fair, honest and competitive public bidding. 30

Thus, if the maximum amount of equity that a bidder may invest in the project at the time the bids are submitted falls short of the minimum amounts required to be put up by the bidder, said bidder should be properly disqualified. Considering that at the prequalification stage, the maximum amounts which the Paircargo Consortium may invest in the project fell short of the minimum amounts prescribed by the PBAC, we hold that Paircargo Consortium was not a qualified bidder. Thus the award of the contract by the PBAC to the Paircargo Consortium, a disqualified bidder, is null and void. While it would be proper at this juncture to end the resolution of the instant controversy, as the legal effects of the disqualification of respondent PIATCO's predecessor would come into play and necessarily result in the nullity of all the subsequent contracts entered by it in pursuance of the project, the Court feels that it is necessary to discuss in full the pressing issues of the present controversy for a complete resolution thereof. II Is the 1997 Concession Agreement valid? Petitioners and public respondents contend that the 1997 Concession Agreement is invalid as it contains provisions that substantially depart from the draft Concession Agreement included in the Bid Documents. They maintain that a substantial departure from the draft Concession Agreement is a violation of public policy and renders the 1997 Concession Agreement null and void. PIATCO maintains, however, that the Concession Agreement attached to the Bid Documents is intended to be a draft, i.e., subject to change, alteration or modification, and that this intention was clear to all participants, including AEDC, and DOTC/MIAA. It argued further that said intention is expressed in Part C (6) of Bid Bulletin No. 3 issued by the PBAC which states:
6.Amendments to the Draft Concessions Agreement Amendments to the Draft Concessions Agreement shall be issued from time to time. Said amendments shall only cover items that would not materially affect the preparation of the proponent's proposal.

By its very nature, public bidding aims to protect the public interest by giving the public the best possible advantages through open competition. Thus:

Competition must be legitimate, fair and honest. In the field of government contract law, competition requires, not only bidding upon a common standard, a common basis, upon the same thing, the same subject matter, the same undertaking,' but also that it be legitimate, fair and honest; and not designed to injure or defraud the government. 31

An essential element of a publicly bidded contract is that all bidders must be on equal footing. Not simply in terms of application of the procedural rules and regulations imposed by the relevant government agency, but more importantly, on the contract bidded upon. Each bidder must be able to bid on the same thing. The rationale is obvious. If the winning bidder is allowed to later include or modify certain provisions in the contract awarded such that the contract is altered in any material respect, then the essence of fair competition in the public bidding is destroyed. A public bidding would indeed be a farce if after the contract is awarded, the winning bidder may modify the contract and include provisions which are favorable to it that were not previously made available to the other bidders. Thus:
It is inherent in public biddings that there shall be a fair competition among the bidders. The specifications in such biddings provide the common ground or basis for the bidders. The specifications should, accordingly, operate equally or indiscriminately upon all bidders. 32

The same rule was restated by Chief Justice Stuart of the Supreme Court of Minnesota:
The law is well settled that where, as in this case, municipal authorities can only let a contract for public work to the lowest responsible bidder, the proposals and specifications therefore must be so framed as to permit free and full competition. Nor can they enter into a contract with the best bidder containing substantial provisions beneficial to him, not included or contemplated in the terms and specifications upon which the bids were invited. 33

In fact, in the PBAC Bid Bulletin No. 3 cited by PIATCO to support its argument that the draft concession agreement is subject to amendment, the pertinent portion of which was quoted above, the PBAC also clarified that "[s]aid amendments shall only cover items that would not materially affect the preparation of the proponent's proposal." While we concede that a winning bidder is not precluded from modifying or amending certain provisions of the contract bidded upon, such changes must not constitute substantial or material amendments that would alter the basic parameters of the contract and would constitute a denial to the other bidders of the opportunity to bid on the same terms. Hence, the determination of whether or not a modification or amendment of a contract bidded out constitutes a substantial amendment rests on whether the contract, when taken as a whole, would contain substantially different terms and conditions that would have the effect of altering the technical and/or financial proposals previously

submitted by other bidders. The alterations and modifications in the contract executed between the government and the winning bidder must be such as to render such executed contract to be an entirely different contract from the one that was bidded upon.
CSaITD

In the case of Caltex (Philippines), Inc. v. Delgado Brothers, Inc., 34 this Court quoted with approval the ruling of the trial court that an amendment to a contract awarded through public bidding, when such subsequent amendment was made without a new public bidding, is null and void:
The Court agrees with the contention of counsel for the plaintiffs that the due execution of a contract after public bidding is a limitation upon the right of the contracting parties to alter or amend it without another public bidding, for otherwise what would a public bidding be good for if after the execution of a contract after public bidding, the contracting parties may alter or amend the contract, or even cancel it, at their will? Public biddings are held for the protection of the public, and to give the public the best possible advantages by means of open competition between the bidders. He who bids or offers the best terms is awarded the contract subject of the bid, and it is obvious that such protection and best possible advantages to the public will disappear if the parties to a contract executed after public bidding may alter or amend it without another previous public bidding. 35

Hence, the question that comes to fore is this: is the 1997 Concession Agreement the same agreement that was offered for public bidding, i.e., the draft Concession Agreement attached to the Bid Documents? A close comparison of the draft Concession Agreement attached to the Bid Documents and the 1997 Concession Agreement reveals that the documents differ in at least two material respects: a.Modification on the Public Utility Revenues and Non-Public Utility Revenues that may be collected by PIATCO The fees that may be, imposed and collected by PIATCO under the draft Concession Agreement and the 1997 Concession Agreement may be classified into three distinct categories: (1) fees which are subject to periodic adjustment of once every two years in accordance with a prescribed parametric formula and adjustments are made effective only upon written approval by MIAA; (2) fees other than those included in the first category which may be adjusted by PIATCO whenever it deems necessary without need for consent of DOTC/MIAA; and (3) new fees and charges that may be imposed by PIATCO which have not been previously imposed or collected at the Ninoy Aquino International Airport Passenger Terminal I, pursuant to Administrative Order No. 1, Series of 1993, as amended. The glaring distinctions between the draft Concession Agreement and the 1997

Concession Agreement lie in the types of fees included in each category and the extent of the supervision and regulation which MIAA is allowed to exercise in relation thereto.

For fees under the first category, i.e., those which are subject to periodic adjustment in accordance with a prescribed parametric formula and effective only upon written approval by MIAA, the draft Concession Agreement includes the following: 36
(1)aircraft parking fees; (2)aircraft tacking fees; (3)groundhandling fees; (4)rentals and airline offices; (5)check-in counter rentals; and (6)porterage fees.

Under the 1997 Concession Agreement, fees which are subject to adjustment and effective upon MIAA approval are classified as "Public Utility Revenues" and include: 37
(1)aircraft parking fees; (2)aircraft tacking fees; (3)check-in counter fees; and (4)Terminal Fees.

The implication of the reduced number of fees that are subject to MIAA approval is best appreciated in relation to fees included in the second category identified above. Under the 1997 Concession Agreement, fees which PIATCO may adjust whenever it deems necessary without need for consent of DOTC/MIAA are "Non-Public Utility Revenues" and is defined as "all other income not classified as Public Utility Revenues derived from operations of the Terminal and the Terminal Complex." 38 Thus, under the 1997 Concession Agreement, groundhandling fees, rentals from airline offices and porterage fees are no longer subject to MIAA regulation. Further, under Section 6.03 of the draft Concession Agreement; MIAA reserves the right to regulate (1) lobby and vehicular parking fees and (2) other new fees and charges that may be imposed by PIATCO. Such regulation may be made by periodic adjustment and

is effective only upon written approval of MIAA. The full text of said provision is quoted below:
Section 6.03.Periodic Adjustment in Fees and Charges. Adjustments in the aircraft parking fees, aircraft tacking fees, groundhandling fees, rentals and airline offices, check-in-counter rentals and porterage fees shall be allowed only once every two years and in accordance with the Parametric Formula attached hereto as Annex F. Provided that adjustments shall be made effective only after the written express approval of the MIAA. Provided, further, that such approval of the MIAA, shall be contingent only on the conformity of the adjustments with the above said parametric formula. The first adjustment shall be made prior to the In-Service Date of the Terminal. The MIAA reserves the right to regulate under the foregoing terms and conditions the lobby and vehicular parking fees and other new fees and charges as contemplated in paragraph 2 of Section 6.01 if in its judgment the users of the airport shall be deprived of a free option for the services they cover. 39

On the other hand, the equivalent provision under the 1997 Concession Agreement reads:
Section 6.03Periodic Adjustment in Fees, and Charges.

xxx xxx xxx

(c)Concessionaire shall at all times be judicious in fixing fees and charges constituting Non-Public Utility Revenues in order to ensure that End Users are not unreasonably deprived of services. While the vehicular parking fee, porterage fee and greeter/well wisher fee constitute Non-Public Utility Revenues of Concessionaire, GRP may intervene and require Concessionaire to explain and justify the fee it may set from time to time, if in the reasonable opinion of GRP the said fees have become exorbitant resulting in the unreasonable deprivation of End Users of such services. 40

Thus, under the 1997 Concession Agreement, with respect to (1) vehicular parking fee, (2) porterage fee and (3) greeter/well wisher fee, all that MIAA can do is to require PIATCO to explain and justify the fees set by PIATCO. In the draft Concession Agreement, vehicular parking fee is subject to MIAA regulation and approval under the second paragraph of Section 6.03 thereof while porterage fee is covered by the first paragraph of the same provision. There is an obvious relaxation of the extent of control and regulation by MIAA with respect to the particular fees that may be charged by PIATCO.
CSaITD

Moreover, with respect to the third category of fees that may be imposed and collected by PIATCO, i.e., new fees and charges that may be imposed by PIATCO which have not been previously imposed or collected at the Ninoy Aquino International Airport

Passenger Terminal I, under Section 6.03 of the draft Concession Agreement MIAA has reserved the right to regulate the same under the same conditions that MIAA may regulate fees under the first category, i.e., periodic adjustment of once every two years in accordance with a prescribed parametric formula and effective only upon written approval by MIAA. However, under the 1997 Concession Agreement, adjustment of fees under the third category is not subject to MIAA regulation. With respect to terminal fees that may be charged by PIATCO, 41 as shown earlier, this was included within the category of "Public Utility Revenues" under the 1997 Concession Agreement. This classification is significant because under the 1997 Concession Agreement, "Public Utility Revenues" are subject to an "Interim Adjustment" of fees upon the occurrence of certain extraordinary events specified in the agreement. 42 However, under the draft Concession Agreement, terminal fees are not included in the types of fees that may be subject to "Interim Adjustment." 43 Finally, under the 1997 Concession Agreement, "Public Utility Revenues," except terminal fees, are denominated in US Dollars 44 while payments to the Government are in Philippine Pesos. In the draft Concession Agreement, no such stipulation was included. By stipulating that "Public Utility Revenues" will be paid to PIATCO in US Dollars while payments by PIATCO to the Government are in Philippine currency under the 1997 Concession Agreement, PIATCO is able to enjoy the benefits of depreciations of the Philippine Peso, while being effectively insulated from the detrimental effects of exchange rate fluctuations. When taken as a whole, the changes under the 1997 Concession Agreement with respect to reduction in the types of fees that are subject to MIAA regulation and the relaxation of such regulation with respect to other fees are significant amendments that substantially distinguish the draft Concession Agreement from the 1997 Concession Agreement. The 1997 Concession Agreement, in this respect, clearly gives PIATCO more favorable terms than what was available to other bidders at the time the contract was bidded out. It is not very difficult to see that the changes in the 1997 Concession Agreement translate to direct and concrete financial advantages for PIATCO which were not available at the time the contract was offered for bidding. It cannot be denied that under the 1997 Concession Agreement only "Public Utility Revenues" are subject to MIAA regulation. Adjustments of all other fees imposed and collected by PIATCO are entirely within its control. Moreover, with respect to terminal fees, under the 1997 Concession Agreement, the same is further subject to "Interim Adjustments" not previously stipulated in the draft Concession Agreement. Finally, the change in the currency stipulated for "Public Utility Revenues" under the 1997 Concession Agreement, except terminal fees, gives PIATCO an added benefit which was not available at the time of bidding.
aSTAIH

b.Assumption by the Government of the liabilities of PIATCO in the event of the latter's default thereof Under the draft Concession Agreement, default by PIATCO of any of its obligations to creditors who have provided, loaned or advanced funds for the NAIA IPT III project does not result in the assumption by the Government of these liabilities. In fact, nowhere in the said contract does default of PIATCO's loans figure in the agreement. Such default does not directly result in any concomitant right or obligation in favor of the Government. However, the 1997 Concession Agreement provides:
Section 4.04 Assignment. xxx xxx xxx (b)In the event Concessionaire should default in the payment of an Attendant Liability, and the default has resulted in the acceleration of the payment due date of the Attendant Liability prior to its stated date of maturity, the Unpaid Creditors and Concessionaire shall immediately inform GRP in writing of such default. GRP shall, within one hundred eighty (180) Days from receipt of the joint written notice of the Unpaid Creditors and Concessionaire, either (i) take over the Development Facility and assume the Attendant Liabilities, or (ii) allow the Unpaid Creditors, if qualified, to be substituted as concessionaire and operator of the Development Facility in accordance with the terms and conditions hereof, or designate a qualified operator acceptable to GRP to operate the Development Facility, likewise under the terms and conditions of this Agreement; Provided that if at the end of the 180-day period GRP shall not have served the Unpaid Creditors and Concessionaire written notice of its choice, GRP shall be deemed to have elected to take over the Development Facility with the concomitant assumption of Attendant Liabilities. (c)If GRP should, by written notice, allow the Unpaid Creditors to be substituted as concessionaire, the latter shall form and organize a concession company qualified to take over the operation of the Development Facility. If the concession company should elect to designate an operator for the Development Facility, the concession company shall in good faith identify and designate a qualified operator acceptable to GRP within one hundred eighty (180) days from receipt of GRP's written notice. If the concession company, acting in good faith and with due diligence, is unable to designate a qualified operator within the aforesaid period, then GRP shall at the end of the 180-day period take over the Development Facility and assume Attendant Liabilities.

The term "Attendant Liabilities" under the 1997 Concession Agreement is defined as:

Attendant Liabilities refer to all amounts recorded and from time to time outstanding in the books of the Concessionaire as owing to Unpaid Creditors who have provided, loaned or advanced funds actually used for the Project, including all interests, penalties, associated fees, charges, surcharges, indemnities, reimbursements and other related expenses, and further including amounts owed by Concessionaire to its suppliers, contractors and subcontractors.

Under the above quoted portions of Section 4.04 in relation to the definition of "Attendant Liabilities," default by PIATCO of its loans used to finance the NAIA IPT III project triggers the occurrence of certain events that leads to the assumption by the Government of the liability for the loans. Only in one instance may the Government escape the assumption of PIATCO's liabilities, i.e., when the Government so elects and allows a qualified operator to take over as Concessionaire. However, this circumstance is dependent on the existence and availability of a qualified operator who is willing to take over the rights and obligations of PIATCO under the contract, a circumstance that is not entirely within the control of the Government. Without going into the validity of this provision at this juncture, suffice it to state that Section 4.04 of the 1997 Concession Agreement may be considered a form of security for the loans PIATCO has obtained to finance the project, an option that was not made available in the draft Concession Agreement. Section 4.04 is an important amendment to the 1997 Concession Agreement because it grants PIATCO a financial advantage or benefit which was not previously made available during the bidding process. This financial advantage is a significant modification that translates to better terms and conditions for PIATCO. PIATCO, however, argues that the parties to the bidding procedure acknowledge that the draft Concession Agreement is subject to amendment because the Bid Documents permit financing or borrowing. They claim that it was the lenders who proposed the amendments to the draft Concession Agreement which resulted in the 1997 Concession Agreement. We agree that it is not inconsistent with the rationale and purpose of the BOT Law to allow the project proponent or the winning bidder to obtain financing for the project, especially in this case which involves the construction, operation and maintenance of the NAIA IPT III. Expectedly, compliance by the project proponent of its undertakings therein would involve a substantial amount of investment. It is therefore inevitable for the awardee of the contract to seek alternate sources of funds to support the project. Be that as it may, this Court maintains that amendments to the contract bidded upon should always conform to the general policy on public bidding if such procedure is to be faithful to its real nature and purpose. By its very nature and characteristic, competitive public bidding aims to protect the public interest by giving the public the best possible

advantages through open competition. 45 It has been held that the three principles in public bidding are (1) the offer to the public; (2) opportunity for competition; and (3) a basis for the exact comparison of bids. A regulation of the matter which excludes any of these factors destroys the distinctive character of the system and thwarts the purpose of its adoption. 46 These are the basic parameters which every awardee of a contract bidded out must conform to, requirements of financing and borrowing notwithstanding. Thus, upon a concrete showing that, as in this case, the contract signed by the government and the contract awardee is an entirely different contract from the contract bidded, courts should not hesitate to strike down said contract in its entirety for violation of public policy on public bidding. A strict adherence on the principles, rules and regulations on public bidding must be sustained if only to preserve the integrity and the faith of the general public on the procedure. Public bidding is a standard practice for procuring government contracts for public service and for furnishing supplies and other materials. It aims to secure for the government the lowest possible price under the most favorable terms and conditions, to curtail favoritism in the award of government contracts and avoid suspicion of anomalies and it places all bidders in equal footing. 47 Any government action which permits any substantial variance between the conditions under which the bids are invited and the contract executed after the award thereof is a grave abuse of discretion amounting to lack or excess of jurisdiction which warrants proper judicial action. In view of the above discussion, the fact that the foregoing substantial amendments were made on the 1997 Concession Agreement renders the same null and void for being contrary to public policy. These amendments convert the 1997 Concession Agreement to an entirely different agreement from the contract bidded out or the draft Concession Agreement. It is not difficult to see that the amendments on (1) the types of fees or charges that are subject to MIAA regulation or control and the extent thereof and (2) the assumption by the Government, under certain conditions, of the liabilities of PIATCO directly translates concrete financial advantages to PIATCO that were previously not available during the bidding process. These amendments cannot be taken as merely supplements to or implementing provisions of those already existing in the draft Concession Agreement. The amendments discussed above present new terms and conditions which provide financial benefit to PIATCO which may have altered the technical and financial parameters of other bidders had they known that such terms were available. III Direct Government Guarantee Article IV, Section 4.04(b) and (c), in relation to Article 1.06, of the 1997 Concession Agreement provides:

Section 4.04 Assignment xxx xxx xxx (b)In the event Concessionaire should default in the payment of an Attendant Liability, and the default resulted in the acceleration of the payment due date of the Attendant Liability prior to its stated date of maturity, the Unpaid Creditors and Concessionaire shall immediately inform GRP in writing of such default. GRP shall within one hundred eighty (180) days from receipt of the joint written notice of the Unpaid Creditors and Concessionaire, either (i) take over the Development Facility and assume the Attendant Liabilities, or (ii) allow the Unpaid Creditors, if qualified to be substituted as concessionaire and operator of the Development facility in accordance with the terms and conditions hereof, or designate a qualified operator acceptable to GRP to operate the Development Facility, likewise under the terms and conditions of this Agreement; Provided, that if at the end of the 180-day period GRP shall not have served the Unpaid Creditors and Concessionaire written notice of its choice, GRP shall be deemed to have elected to take over the Development Facility with the concomitant assumption of Attendant Liabilities. (c)If GRP, by written notice, allow the Unpaid Creditors to be substituted as concessionaire, the latter shall form and organize a concession company qualified to takeover the operation of the Development Facility. If the concession company should elect to designate an operator for the Development Facility, the concession company shall in good faith identify and designate a qualified operator acceptable to GRP within one hundred eighty (180) days from receipt of GRP's written notice. If the concession company, acting in good faith and with due diligence, is unable to designate a qualified operator within the aforesaid period, then GRP shall at the end of the 180-day period take over the Development Facility and assume Attendant Liabilities. xxx xxx xxx Section 1.06. Attendant Liabilities Attendant Liabilities refer to all amounts recorded and from time to time outstanding in the books of the Concessionaire as owing to Unpaid Creditors who have provided, loaned or advanced funds actually used for the Project, including all interests, penalties, associated fees, charges, surcharges, indemnities, reimbursements and other related expenses, and further including amounts owed by Concessionaire to its suppliers, contractors and subcontractors. 48

It is clear from the above-quoted provisions that Government, in the event that PIATCO defaults in its loan obligations, is obligated to pay "all amounts recorded and from time to time outstanding from the books" of PIATCO which the latter owes to its creditors. 49

These amounts include "all interests, penalties, associated fees, charges, surcharges, indemnities, reimbursements and other related expenses." 50 This obligation of the Government to pay PIATCO's creditors upon PIATCO's default would arise if the Government opts to take over NAIA IPT III. It should be noted, however, that even if the Government chooses the second option, which is to allow PIATCO's unpaid creditors operate NAIA IPT III, the Government is still at a risk of being liable to PIATCO's creditors should the latter be unable to designate a qualified operator within the prescribed period. 51 In effect, whatever option the Government chooses to take in the event of PIATCO's failure to fulfill its loan obligations, the Government is still at a risk of assuming PIATCO's outstanding loans. This is due to the fact that the Government would only be free from assuming PIATCO's debts if the unpaid creditors would be able to designate a qualified operator within the period provided for in the contract. Thus, the Government's assumption of liability is virtually out of its control. The Government under the circumstances provided for in the 1997 Concession Agreement is at the mercy of the existence, availability and willingness of a qualified operator. The above contractual provisions constitute a direct government guarantee which is prohibited by law.

One of the main impetus for the enactment of the BOT Law is the lack of government funds to construct the infrastructure and development projects necessary for economic growth and development. This is why private sector resources are being tapped in order to finance these projects. The BOT law allows the private sector to participate, and is in fact encouraged to do so by way of incentives, such as minimizing, the unstable flow of returns, 52 provided that the government would not have to unnecessarily expend scarcely available funds for the project itself. As such, direct guarantee, subsidy and equity by the government in these projects are strictly prohibited. 53 This is but logical for if the government would in the end still be at a risk of paying the debts incurred by the private entity in the BOT projects, then the purpose of the law is subverted. Section 2(n) of the BOT Law defines direct guarantee as follows:
(n)Direct government guarantee An agreement whereby the government or any of its agencies or local government units assume responsibility for the repayment of debt directly incurred by the project proponent in implementing the project in case of a loan default.

Clearly by providing that the Government "assumes" the attendant liabilities, which consists of PIATCO's unpaid debts, the 1997 Concession Agreement provided for a direct government guarantee for the debts incurred by PIATCO in the implementation of the NAIA IPT III project. It is of no moment that the relevant sections are subsumed under

the title of "assignment". The provisions providing for direct government guarantee which is prohibited by law is clear from the terms thereof. The fact that the ARCA superseded the 1997 Concession Agreement did not cure this fatal defect. Article IV, Section 4.04(c), in relation to Article 1, Section 1.06, of the ARCA provides:
Section 4.04 Security xxx xxx xxx (c)GRP agrees with Concessionaire (PIATCO) that it shall negotiate in good faith and enter into direct agreement with the Senior Lenders, or with an agent of such Senior Lenders (which agreement shall be subject to the approval of the Bangko Sentral ng Pilipinas), in such form as may be reasonably acceptable to both GRP and Senior Lenders, with regard, inter alia, to the following parameters: xxx xxx xxx (iv)If the Concessionaire [PIATCO] is in default under a payment obligation owed to the Senior Lenders, and as a result thereof the Senior Lenders have become entitled to accelerate the Senior Loans, the Senior Lenders shall have the right to notify GRP of the same, and without prejudice to any other rights of the Senior Lenders or any Senior Lenders' agent may have (including without limitation under security interests granted in favor of the Senior Lenders), to either in good faith identify and designate a nominee which is qualified under sub-clause (viii)(y) below to operate the Development Facility [NAIA Terminal 3] or transfer the Concessionaire's [PIATCO] rights and obligations under this Agreement to a transferee which is qualified under sub-clause (viii) below; xxx xxx xxx (vi)if the Senior Lenders, acting in good faith and using reasonable efforts, are unable to designate a nominee or effect a transfer in terms and conditions satisfactory to the Senior Lenders within one hundred eighty (180) days after giving GRP notice as referred to respectively in (iv) or (v) above, then GRP and the Senior Lenders shall endeavor in good faith to enter into any other arrangement relating to the Development Facility [NAIA Terminal 3] (other than a turnover of the Development Facility [NAIA Terminal 3] to GRP) within the following one hundred eighty (180) days. If no agreement relating to the Development Facility [NAIA Terminal 3] is arrived at by GRP and the Senior Lenders within the said 180-day period, then at the end thereof the Development Facility [NAIA Terminal 3] shall be transferred by the Concessionaire [PIATCO] to GRP or its designee and GRP shall make a termination payment to Concessionaire [PIATCO] equal to the Appraised Value (as hereinafter

defined) of the Development Facility [NAIA Terminal 3] or the sum of the Attendant Liabilities, if greater. Notwithstanding Section 8.01 (c) hereof, this Agreement shall be deemed terminated upon the transfer of the Development Facility [NAIA Terminal 3] to GRP pursuant hereto; xxx xxx xxx Section 1.06. Attendant Liabilities Attendant Liabilities refer to all amounts in each case supported by verifiable evidence from time to time owed or which may become owing by Concessionaire [PIATCO] to Senior Lenders or any other persons or entities who have provided, loaned, or advanced funds or provided financial facilities to Concessionaire [PIATCO] for the Project [NAIA Terminal 3], including, without limitation, all principal, interest, associated fees, charges, reimbursements, and other related expenses (including the fees, charges and expenses of any agents or trustees of such persons or entities), whether payable at maturity, by acceleration or otherwise, and further including amounts owed by Concessionaire [PIATCO] to its professional consultants and advisers, suppliers, contractors and sub-contractors. 54

It is clear from the foregoing contractual provisions that in the event that PIATCO fails to fulfill its loan obligations to its Senior Lenders, the Government is obligated to directly negotiate and enter into an agreement relating to NAIA IPT III with the Senior Lenders, should the latter fail to appoint a qualified nominee or transferee who will take the place of PIATCO. If the Senior Lenders and the Government are unable to enter into an agreement after the prescribed period, the Government must then pay PIATCO, upon transfer of NAIA IPT III to the Government, termination payment equal to the appraised value of the project or the value of the attendant liabilities whichever is greater. Attendant liabilities as defined in the ARCA includes all amounts owed or thereafter may be owed by PIATCO not only to the Senior Lenders with whom PIATCO has defaulted in its loan obligations but to all other persons who may have loaned, advanced funds or provided any other type of financial facilities to PIATCO for NAIA IPT III. The amount of PIATCO's debt that the Government would have to pay as a result of PIATCO's default in its loan obligations in case no qualified nominee or transferee is appointed by the Senior Lenders and no other agreement relating to NAIA IPT III has been reached between the Government and the Senior Lenders includes, but is not limited to, "all principal, interest, associated fees, charges, reimbursements, and other related expenses . . . whether payable at maturity, by acceleration or otherwise." 55 It is clear from the foregoing that the ARCA provides for a direct guarantee by the government to pay PIATCO's loans not only to its Senior Lenders but all other entities who provided PIATCO funds or services upon PIATCO's default in its loan obligation with its Senior Lenders. The fact that the Government's obligation to pay PIATCO's

lenders for the latter's obligation would only arise after the Senior Lenders fail to appoint a qualified nominee or transferee does not detract from the fact that, should the conditions as stated in the contract occur, the ARCA still obligates the Government to pay any and all amounts owed by PIATCO to its lenders in connection with NAIA IPT III. Worse, the conditions that would make the Government liable for PIATCO's debts is triggered by PIATCO's own default of its loan obligations to its Senior Lenders to which loan contracts the Government was never a party to. The Government was not even given an option as to what course of action it should take in case PIATCO defaulted in the payment of its senior loans. The Government, upon PIATCO's default, would be merely notified by the Senior Lenders of the same and it is the Senior Lenders who are authorized to appoint a qualified nominee or transferee. Should the Senior Lenders fail to make such an appointment, the Government is then automatically obligated to "directly deal and negotiate" with the Senior Lenders regarding NAIA IPT III. The only way the Government would not be liable for PIATCO's debt is for a qualified nominee or transferee to be appointed in place of PIATCO to continue the construction, operation and maintenance of NAIA IPT III. This "pre-condition", however, will not take the contract out of the ambit of a direct guarantee by the government as the existence, availability and willingness of a qualified nominee or transferee is totally out of the government's control. As such the Government is virtually at the mercy of PIATCO (that it would not default on its loan obligations to its Senior Lenders), the Senior Lenders (that they would appoint a qualified nominee or transferee or agree to some other arrangement with the Government) and the existence of a qualified nominee or transferee who is able and willing to take the place of PIATCO in NAIA IPT III. The proscription against government guarantee in any form is one of the policy considerations behind the BOT Law. Clearly, in the present case, the ARCA obligates the Government to pay for all loans, advances and obligations arising out of financial facilities extended to PIATCO for the implementation of the NAIA IPT III project should PIATCO default in its loan obligations to its Senior Lenders and the latter fails to appoint a qualified nominee or transferee. This in effect would make the Government liable for PIATCO's loans should the conditions as set forth in the ARCA arise. This is a form of direct government guarantee. The BOT Law and its implementing rules provide that in order for an unsolicited proposal for a BOT project may be accepted, the following conditions must first be met: (1) the project involves a new concept in technology and/or is not part of the list of priority projects, (2) no direct government guarantee, subsidy or equity is required, and (3) the government agency or local government unit has invited by publication other interested parties to a public bidding and conducted the same. 56 The failure to meet any of the above conditions will result in the denial of the proposal. It is further provided that the presence of direct government guarantee, subsidy or equity will "necessarily, disqualify a proposal from being treated and accepted as an unsolicited proposal." 57 The BOT Law clearly and strictly prohibits direct government guarantee, subsidy and equity

in unsolicited proposals that the mere inclusion of a provision to that effect is fatal and is sufficient to deny the proposal. It stands to reason therefore that if a proposal can be denied by reason of the existence of direct government guarantee, then its inclusion in the contract executed after the said proposal has been accepted is likewise sufficient to invalidate the contract itself. A prohibited provision, the inclusion of which would result in the denial of a proposal cannot, and should not, be allowed to later on be inserted in the contract resulting from the said proposal. The basic rules of justice and fair play alone militate against such an occurrence and must not, therefore, be countenanced particularly in this instance where the government is exposed to the risk of shouldering hundreds of million of dollars in debt.

This Court has long and consistently adhered to the legal maxim that those that cannot be done directly cannot be done indirectly. 58 To declare the PIATCO contracts valid despite the clear statutory prohibition against a direct government guarantee would not only make a mockery of what the BOT Law seeks to prevent which is to expose the government to the risk of incurring a monetary obligation resulting from a contract of loan between the project proponent and its lenders and to which the Government is not a party to but would also render the BOT Law useless for what it seeks to achieve to make use of the resources of the private sector in the "financing, operation and maintenance of infrastructure and development projects" 59 which are necessary for national growth and development but which the government, unfortunately, could illafford to finance at this point in time. IV Temporary takeover of business affected with public interest Article XII, Section 17 of the 1987 Constitution provides:
Section 17.In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest.

The above provision pertains to the right of the State in times of national emergency, and in the exercise of its police power, to temporarily take over the operation of any business affected with public interest. In the 1986 Constitutional Commission, the term "national emergency" was defined to include threat from external aggression, calamities or national disasters, but not strikes "unless it is of such proportion that would paralyze government service." 60 The duration of the emergency itself is the determining factor as to how long the temporary takeover by the government would last. 61 The temporary takeover by the government extends only to the operation of the business and not to the ownership

thereof. As such the government is not required to compensate the private entity-owner of the said business as there is no transfer of ownership, whether permanent or temporary. The private entity-owner affected by the temporary takeover cannot, likewise, claim just compensation for the use of the said business and its properties as the temporary takeover by the government is in exercise of its police power and not of its power of eminent domain. Article V, Section 5.10 (c) of the 1997 Concession Agreement provides:
Section 5.10 Temporary Take-over of operations by GRP. xxx xxx xxx (c)In the event the development Facility or any part thereof and/or the operations of Concessionaire or any part thereof, become the subject matter of or be included in any notice, notification, or declaration concerning or relating to acquisition, seizure or appropriation by GRP in times of war or national emergency, GRP shall, by written notice to Concessionaire, immediately take over the operations of the Terminal and/or the Terminal Complex. During such take over by GRP, the Concession Period shall be suspended; provided, that upon termination of war, hostilities or national emergency, the operations shall be returned to Concessionaire, at which time, the Concession period shall commence to run again. Concessionaire shall be entitled to reasonable compensation for the duration of the temporary take over by GRP, which compensation shall take into account the reasonable cost for the use of the Terminal and/or Terminal Complex, (which is in the amount at least equal to the debt service requirements of Concessionaire, if the temporary take over should occur at the time when Concessionaire is still servicing debts owed to project lenders), any loss or damage to the Development Facility, and other consequential damages. If the parties cannot agree on the reasonable compensation of Concessionaire, or on the liability of GRP as aforesaid, the matter shall be resolved in accordance with Section 10.01 [Arbitration]. Any amount determined to be payable by GRP to Concessionaire shall be offset from the amount next payable by Concessionaire to GRP. 62

PIATCO cannot, by mere contractual stipulation, contravene the Constitutional provision on temporary government takeover and obligate the government to pay "reasonable cost for the use of the Terminal and/or Terminal Complex." 63 Article XII, section 17 of the 1987 Constitution envisions a situation wherein the exigencies of the times necessitate the government to "temporarily take over or direct the operation of any privately owned public utility or business affected with public interest." It is the welfare and interest of the public which is the paramount consideration in determining whether or not to temporarily take over a particular business. Clearly, the State in effecting the temporary takeover is exercising its police power. Police power is the "most essential, insistent, and illimitable of powers." 64 Its exercise therefore must not be unreasonably hampered nor its exercise

be a source of obligation by the government in the absence of damage due to arbitrariness of its exercise. 65 Thus, requiring the government to pay reasonable compensation for the reasonable use of the property pursuant to the operation of the business contravenes the Constitution. V Regulation of Monopolies A monopoly is "a privilege or peculiar advantage vested in one or more persons or companies, consisting in the exclusive right (or power) to carry on a particular business or trade, manufacture a particular article, or control the sale of a particular commodity." 66 The 1987 Constitution strictly regulates monopolies, whether private or public, and even provides for their prohibition if public interest so requires. Article XII, Section 19 of the 1987 Constitution states:
Sec. 19.The state shall regulate or prohibit monopolies when the public interest so requires. No combinations in restraint of trade or unfair competition shall be allowed.

Clearly, monopolies are not per se prohibited by the Constitution but may be permitted to exist to aid the government in carrying on an enterprise or to aid in the performance of various services and functions in the interest of the public. 67 Nonetheless, a determination must first be made as to whether public interest requires a monopoly. As monopolies are subject to abuses that can inflict severe prejudice to the public, they are subject to a higher level of State regulation than an ordinary business undertaking. In the cases at bar, PIATCO, under the 1997 Concession Agreement and the ARCA, is granted the "exclusive right to operate a commercial international passenger terminal within the Island of Luzon" at the NAIA IPT III. 68 This is with the exception of already existing international airports in Luzon such as those located in the Subic Bay Freeport Special Economic Zone ("SBFSEZ"), Clark Special Economic Zone ("CSEZ") and in Laoag City. 69 As such, upon commencement of PIATCO's operation of NAIA IPT III, Terminals 1 and 2 of NAIA would cease to function as international passenger terminals. This, however, does not prevent MIAA to use Terminals 1 and 2 as domestic passenger terminals or in any other manner as it may deem appropriate except those activities that would compete with NAIA IPT III in the latter's operation as an international passenger terminal. 70 The right granted to PIATCO to exclusively operate NAIA IPT III would be for a period of twenty-five (25) years from the In-Service Date 71 and renewable for another twenty-five (25) years at the option of the government. 72 Both the 1997 Concession Agreement and the ARCA further provide that, in view of the exclusive right granted to PIATCO, the concession contracts of the service providers currently servicing Terminals 1 and 2 would no longer be renewed and those concession contracts whose

expiration are subsequent to the In-Service Date would cease to be effective on the said date. 73 The operation of an international passenger airport terminal is no doubt an undertaking imbued with public interest. In entering into a Build-Operate-and-Transfer contract for the construction, operation and maintenance of NAIA IPT III, the government has determined that public interest would be served better if private sector resources were used in its construction and an exclusive right to operate be granted to the private entity undertaking the said project, in this case PIATCO. Nonetheless, the privilege given to PIATCO is subject to reasonable regulation and supervision by the Government through the MIAA, which is the government agency authorized to operate the NAIA complex, as well as DOTC, the department to which MIAA is attached. 74 This is in accord with the Constitutional mandate that a monopoly which is not prohibited must be regulated. 75 While it is the declared policy of the BOT Law to encourage private sector participation by "providing a climate of minimum government regulations," 76 the same does not mean that Government must completely surrender its sovereign power to protect public interest in the operation of a public utility as a monopoly. The operation of said public utility can not be done in an arbitrary manner to the detriment of the public which it seeks to serve. The right granted to the public utility may be exclusive but the exercise of the right cannot run riot. Thus, while PIATCO may be authorized to exclusively operate NAIA IPT III as an international passenger terminal, the Government, through the MIAA, has the right and the duty to ensure that it is done in accord with public interest. PIATCO's right to operate NAIA IPT III cannot also violate the rights of third parties. Section 3.01(e) of the 1997 Concession Agreement and the ARCA provide:

3.01Concession Period xxx xxx xxx (e)GRP confirms that certain concession agreements relative to certain services and operations currently being undertaken at the Ninoy Aquino International Airport passenger Terminal I have a validity period extending beyond the InService Date. GRP through DOTC/MIAA, confirms that these services and operations shall not be carried over to the Terminal and the Concessionaire is under no legal obligation to permit such carry-over except through a separate agreement duly entered into with Concessionaire. In the event Concessionaire becomes involved in any litigation initiated by any such concessionaire or operator, GRP undertakes and hereby holds Concessionaire free and harmless on full indemnity basis from and against any loss and/or any liability resulting

from any such litigation, including the cost of litigation and the reasonable fees paid or payable to Concessionaire's counsel of choice, all such amounts shall be fully deductible by way of an offset from any amount which the Concessionaire is bound to pay GRP under this Agreement.

During the oral arguments on December 10, 2002, the counsel for the petitioners-inintervention for G.R. No. 155001 stated that there are two service providers whose contracts are still existing and whose validity extends beyond the In-Service Date. One contract remains valid until 2008 and the other until 2010. 77 We hold that while the service providers presently operating at NAIA Terminal 1 do not have an absolute right for the renewal or the extension of their respective contracts, those contracts whose duration extends beyond NAIA IPT III's In-Service-Date should not be unduly prejudiced. These contracts must be respected not just by the parties thereto but also by third parties. PIATCO cannot, by law and certainly not by contract, render a valid and binding contract nugatory. PIATCO, by the mere expedient of claiming an exclusive right to operate, cannot require the Government to break its contractual obligations to the service providers. In contrast to the arrastre and stevedoring service providers in the case of Anglo-Fil Trading Corporation v. Lazaro 78 whose contracts consist of temporary hold-over permits, the affected service providers in the cases at bar, have a valid and binding contract with the Government, through MIAA, whose period of effectivity, as well as the other terms and conditions thereof cannot be violated. In fine, the efficient functioning of NAIA IPT III is imbued with public interest. The provisions of the 1997 Concession Agreement and the ARCA did not strip government, thru the MIAA, of its right to supervise the operation of the whole NAIA complex, including NAIA IPT III. As the primary government agency tasked with the job, 79 it is MIAA's responsibility to ensure that whoever by contract is given the right to operate NAIA IPT III will do so within the bounds of the law and with due regard to the rights of third parties and above all, the interest of the public. VI CONCLUSION In sum, this Court rules that in view of the absence of the requisite financial capacity of the Paircargo Consortium, predecessor of respondent PIATCO, the award by the PBAC of the contract for the construction, operation and maintenance of the NAIA IPT III is null and void. Further, considering that the 1997 Concession Agreement contains material and substantial amendments, which amendments had the effect of converting the 1997 Concession Agreement into an entirely different agreement from the contract bidded upon, the 1997 Concession Agreement is similarly null and void for being contrary to public policy. The provisions under Sections 4.04(b) and (c) in relation to Section 1.06 of the 1997 Concession Agreement and Section 4.04(c) in relation to

Section 1.06 of the ARCA, which constitute a direct government guarantee expressly prohibited by, among others, the BOT Law and its Implementing Rules and Regulations are also null and void. The Supplements, being accessory contracts to the ARCA, are likewise null and void.
TcEaAS

WHEREFORE, the 1997 Concession Agreement, the Amended and Restated Concession Agreement and the Supplements thereto are set aside for being null and void. SO ORDERED.

THIRD DIVISION
[G.R. No. 131124. March 29, 1999.] OSMUNDO G. UMALI, petitioner, vs. EXECUTIVE SECRETARY TEOFISTO T. GUINGONA JR., CHAIRMAN, PRESIDENTIAL COMMISSION AGAINST GRAFT AND CORRUPTION, THE SECRETARY OF FINANCE, AND THE COMMISSIONER OF INTERNAL REVENUE, respondents. Domingo C. Palarca and Ramon M. Maronilla for petitioner. The Solicitor General for public respondents. SYNOPSIS Petitioner was appointed Regional Director of the Bureau of Internal Revenue. In 1994, then President Fidel V. Ramos, received a confidential memorandum against petitioner for alleged violations of internal revenue laws, rules and regulations. Immediately, he was placed under preventive suspension and a complaint against him was referred to the Presidential Commission on Anti-Graft and Corruption (PCAGC), for investigation. The PCAGC found prima facie evidence to support six (6) charges of malfeasance, misfeasance, and nonfeasance against petitioner. Acting upon the recommendation of the PCAGC, President Ramos issued an Administrative Order dismissing petitioner with forfeiture of retirement and all benefits under the law. His motion for reconsideration having been denied by the Office of the President, petitioner brought a petition for certiorari, prohibition and injunction before the RTC of Makati which dismissed the same. The Court of Appeals likewise dismissed the petition when its jurisdiction was invoked, hence, petitioner found its way to the Supreme Court.
cdasia

With respect to the criminal aspect of the charge under investigation before the Ombudsman, the latter dismissed the criminal charge and accordingly all the informations against petitioner previously sent to the Office of the City Prosecutor were recalled. The focal point of inquiry in case at bar is whether in the light of the Ombudsman resolution dismissing the charges against petitioner, there is still basis for petitioner's dismissal with forfeiture of benefits as ruled in the President's Administrative Order.
DEacIT

The Supreme Court ruled that the steps taken and the subsequent dismissal of the petitioner were proper. However, taking into account the attendant facts and circumstances, i.e., the dismissal of the charges against petitioner before the Ombudsman,

the succinct and unmistakable manifestation by the BIR that it is no longer interested in pursuing the case and the position taken by the Solicitor General that there is no more basis for the President's Administrative Order, the Supreme Court, in the exercise of its powers, considered these circumstances as effective and substantive supervening events that warrant the granting of the position. SYLLABUS 1.CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS; NOT VIOLATED WHERE PETITIONER WAS DULY HEARD; CASE AT BAR. Petitioner was not denied the right to due process before the PCAGC. Records show that the petitioner filed his answer and other pleadings with respect to his alleged violation of internal revenue laws and regulations, and he attended the hearings before the investigatory body. It is thus decisively clear that his protestation of non-observance of due process is devoid of any factual or legal basis.
EaHcDS

2.ADMINISTRATIVE LAW; PUBLIC OFFICERS; SECURITY OF TENURE; NOT VIOLATED IN CASE AT BAR. Petitioner maintains that as a career executive service officer, he can only be removed for cause and under the Administrative Code of 1987, loss of confidence is not one of the legal causes or grounds for removal. Consequently, his dismissal from office on the ground of loss of confidence violated his right of security of tenure. Neither can it be said that there was a violation of what petitioner asserts as his security of tenure. According to petitioner, as a Regional Director of Bureau of Internal Revenue, he is a CESO eligible entitled to security of tenure. Neither can it be said that there was a violation of what petitioner asserts as his security of tenure. However, petitioner's claim of CESO eligibility is anemic of evidentiary support. It was incumbent upon him to prove that he is a CESO eligible but unfortunately, he failed to adduce sufficient evidence on the matter. His failure to do so is fatal. 3.REMEDIAL LAW; ACTIONS; ISSUE CANNOT BE RAISED FOR FIRST TIME ON MOTION FOR RECONSIDERATION. As regards the issue of constitutionality of the PCAGC, it was only posed by petitioner in his motion for reconsideration before the Regional Trial Court of Makati. It was certainly too late to raise the said issue for the first time at such late stage of the proceedings below. 4.CONSTITUTIONAL LAW; JUDICIARY; SUPREME COURT; EXERCISE OF EQUITY POWER IN CASE AT BAR. The petition is dismissable on the ground that the issues posited by the petitioner do not constitute a valid legal basis for overturning the finding and conclusion arrived at by the Court of Appeals. However, taking into account the antecedent facts and circumstances aforementioned, the Court, in the exercise of its equity powers, has decided to consider the dismissal of the charges against petitioner

before the Ombudsman, the succinct and unmistakable manifestation by the Commissioner of the Bureau of Internal Revenue that his office is no longer interested in pursuing the case, and the position taken by the Solicitor General, that there is no more basis for Administrative Order No. 152, as effective and substantive supervening events that cannot be overlooked.
ADaSEH

DECISION

PURISIMA, J :
p

At bar is a petition for review under Rule 45 of the Revised Rules of Court assailing the decision of the Court of Appeals dated April 8, 1997, which set aside the Amended Decision dated December 13, 1995 of the Regional Trial Court of Makati in Civil Case No. 94-3079, and dismissed the petition for Certiorari, Prohibition and Injunction brought by petitioner against the respondents. The antecedent facts leading to the filing of the present petition are as follows: On October 27, 1993, petitioner Osmundo Umali was appointed Regional Director of the Bureau of Internal Revenue by the then President Fidel V. Ramos. He was assigned in Manila, from November 29, 1993 to March 15, 1994, and in Makati, from March 16, 1994 to August 4, 1994. On August 1, 1994, President Ramos received a confidential memorandum against the petitioner for alleged violations of internal revenue laws, rules and regulations during his incumbency as Regional Director, more particularly the following malfeasance, misfeasance and nonfeasance, to wit: A.Issuance of Letters of Authority (LA's) to investigate taxpayers despite the ban on investigations as ordered in Revenue Memorandum Order No. 31-93. In numerous cases, revenue officers whose names appeared in the LA's as investigating officers were unaware that such LA's were issued to them. He issued LA's to favored revenue examiners such as his Secretary, Natividad Feliciano; B.Termination of tax cases without the submission of the required investigation reports, thus exempting the same from examination and review; C.Terminated cases with reports were submitted directly to and approved by respondent Umali without being reviewed by the Assessment

Division, thus eliminating the check and balance mechanism designed to guard against abuses or errors; D.Unlawful issuance of LA's to taxpayers who were thereafter convinced to avail of the BIR's compromise and abatement program under RMO's 45093 and 54-93, for which the taxpayers were made, for a monetary consideration, to pay smaller amounts in lieu of being investigated; E.Despite the devolution of the authority to issue LA's from Regional Directors to the Revenue District Officers under RMO 26-94, dated April 14, 1994, respondent Umali continued to issue antedated LA's in absolute defiance of the aforesaid issuance, using old LA's requisitioned by him when still Regional Director of San Pablo Region. In one instance, he issued a termination letter bearing the San Pablo Region letterhead even when he was already Makati Regional Director; and F.In his attempt to cover up his tracks and to muddle the real issue of his violations of the ban in the issuance of LA's and basic revenue rules and regulations, respondent enlisted the support of other regional directors for the purpose of questioning particularly the devolution/centralization of the functions of the Bureau. 1 On August 2, 1994, upon receipt of the said confidential memorandum, former President Ramos authorized the issuance of an Order for the preventive suspension of Umali and immediately referred the Complaint against the latter to the Presidential Commission on Anti-Graft and Corruption (PCAGC), for investigation. Petitioner was duly informed of the charges against him. In its Order, dated August 9, 1994, the PCAGC directed him to send in his answer, copies of his Statement of Assets and Liabilities for the past three years (3), and Personal Data Sheet. Initial hearing was set on August 25, 1994, at 2:00 p.m., at the PCAGC Office. On August 23, the petitioner filed his required Answer. On August 25, 1994, petitioner appeared with his lawyer, Atty. Bienvenido Santiago before the PCAGC. Counsel for the Commissioner of Internal Revenue submitted a Progress Report, dated August 24, 1994, on the audit conducted on the petitioner. As prayed for, petitioner and his lawyer were granted five (5) days to file a supplemental answer. The hearing was reset to August 30, 1994, during which the parties were given a chance to ask clarificatory questions. Petitioner and his counsel did not ask any question on the

genuineness and authenticity of the documents attached as annexes to the Complaint. Thereafter, the parties agreed to submit the case for resolution upon the presentation of their respective memoranda. Petitioner filed his Memorandum on September 6, 1994 while the BIR sent in its Memorandum on the following day. After evaluating the evidence on record, the PCAGC issued its Resolution of September 23, 1994, finding a prima facie evidence to support six (6) of the twelve (12) charges against petitioner, to wit:

1.On the First Charge Respondent issued 176 Letters of Authority in gross disobedience to and in violation of RMOs 31-93 and 27-94. xxx xxx xxx 3.On the Third Charge There is sufficient evidence of a prima facie case of falsification of official documents as defined in Art. 171, par. 2 and 4 of the Revised Penal Code, against the respondent for the issuance of 9 LA's and who did not investigate the tax cases, each LA being a separate offense. xxx xxx xxx 7.On the Seventh Charge There is sufficient evidence of a prima facie case of falsification of official documents against respondent for antedating the four LA's cited in the charge, each LA constituting a separate offense, under Art. 171 (4) of the Revised Penal Code. 8.On the Ninth (sic) Charge There is sufficient evidence to support a prima facie case of falsification of an official document under Art. 171(4) of the Revised Penal Code against the respondent in the tax case of Richfield International Corp., Inc. for indicating a false date on the letter of termination he issued to the company. There is, however, insufficient evidence against respondent in the other tax case of Jayson Auto Supply Co. 9.On the Ninth Charge There is sufficient evidence of a prima facie case of falsification of official documents in each of the two tax cases cited in his charge, under the provisions of Art. 171(4) of the

Revised Penal Code, as the dates of Termination Letters were false. 10.On the Tenth Charge Respondent, by his own admission, violated RMO 36-87 requiring turn over of all properties and forms to his successor upon transfer as head of office, and RMO 27-94 requiring the surrender of all unused old forms of Letters of Authority. The Commission noted the defiant attitude of respondent, as expressed in his admission, towards valid and legal orders of the BIR, and his propensity to defy and ignore such orders and regulations. 2 xxx xxx xxx On October 6, 1994, acting upon the recommendation of the PCAGC, then President Ramos issued Administrative Order No. 152 dismissing petitioner from the service, with forfeiture of retirement and all benefits under the law. On October 24, 1994, the petitioner moved for reconsideration of his dismissal but the Office of the President denied the motion for reconsideration on November 28, 1994. On December 1, 1994, petitioner brought a Petition for Certiorari, Prohibition and Injunction, docketed as Civil Case No. 94-3079 before the Regional Trial Court of Makati, alleging, among others: I.That the petitioner was suspended and dismissed from the service in violation of his constitutional right to due process of law; and II.That the constitutional right of the petitioner to security of tenure was violated by the respondents. The case was raffled off to Branch 133 of the Regional Trial Court in Makati, which issued on December 2, 1994, a Temporary Restraining Order, enjoining the respondents and/or their representatives from enforcing Administrative Order No. 152, and directing the parties to observe the status quo until further orders from the said Court. On December 23, 1994, the said Regional Trial Court dismissed the petition. On January 10, 1995, the petitioner presented a motion for reconsideration, this time, theorizing that the Presidential Commission on Anti-Graft and Corruption is an unconstitutional office without jurisdiction to conduct the investigation against him.
cdt

Respondents submitted their Opposition/Comment to the Motion for Reconsideration. Then, the petitioner filed a Motion to Inhibit Judge Inoturan on the ground that the latter

was formerly a Solicitor in the Office of the Solicitor General and could not be expected to decide the case with utmost impartiality. The case was then re-raffled to Hon. Teofilo L. Guadiz, Jr. who, on December 13, 1995, handed down an Amended Decision, granting the petition and practically reversing the original Decision. Not satisfied with the Amended Decision of Judge Guadiz, Jr., the respondents appealed therefrom to the Court of Appeals. On April 8, 1997, the Ninth Division of the Court of Appeals 3 promulgated its decision, reversing the Amended Decision of the trial court of origin, and dismissing Civil Case No. 94-3079. Petitioner's motion for reconsideration met the same fate. It was denied on October 28, 1997. Undaunted, petitioner found his way to this Court via the petition under scrutiny. In the interim that the administrative and civil cases against the petitioner were pending, the criminal aspect of such cases was referred to the Office of the Ombudsman for investigation. On July 25, 1995, after conducting the investigation, Ombudsman Investigators Merba Waga and Arnulfo Pelagio issued a Resolution finding a probable cause and recommending the institution in the courts of proper jurisdiction criminal cases for Falsification of Public Documents (13 counts) and Open Disobedience (2 counts) against the petitioner. However, acting upon petitioner's motion for reconsideration Special Prosecution Officer II Lemuel M. De Guzman set aside the said Resolution of July 25, 1995, and in lieu thereof, dismissed the charges against petitioner, in the Order dated November 5, 1996, which was approved by Ombudsman Aniano Desierto. Accordingly, all the Informations against the petitioner previously sent to the Office of the City Prosecutor, were recalled. On August 10, 1998, Commissioner Beethoven L. Rualo of the Bureau of Internal Revenue sent a letter to the Solicitor General informing the latter that "the Bureau of Internal Revenue is no longer interested in pursuing the case against Atty. Osmundo Umali" on the basis of the comment and recommendation submitted by the Legal Department of the BIR. 4 Petitioner raised the issues: 1.WHETHER ADMINISTRATIVE ORDER NO. 152 VIOLATED PETITIONER'S RIGHT TO SECURITY OF TENURE;

2.WHETHER PETITIONER WAS DENIED DUE PROCESS IN THE ISSUANCE OF ADMINISTRATIVE ORDER NO. 152; 3.WHETHER THE PCAGC IS A VALIDLY CONSTITUTED GOVERNMENT AGENCY AND WHETHER PETITIONER CAN RAISE THE ISSUE OF ITS CONSTITUTIONALITY BELATEDLY IN ITS MOTION FOR RECONSIDERATION OF THE TRIAL COURT'S DECISION; AND 5.WHETHER IN THE LIGHT OF THE OMBUDSMAN RESOLUTION DISMISSING THE CHARGES AGAINST PETITIONER, THERE IS STILL BASIS FOR PETITIONER'S DISMISSAL WITH FORFEITURE OF BENEFITS AS RULED IN ADMINISTRATIVE ORDER NO. 152. Petitioner contends that as Regional Director of the Bureau of Internal Revenue he belongs to the Career Executive Service. Although a presidential appointee under the direct authority of the President to discipline, he is a career executive service officer (CESO) with tenurial protection, who can only be removed for cause. In support of this theory, petitioner cited the case of Larin vs. Executive Secretary 5 where the Court held:
". . . petitioner is a presidential appointee who belongs to the career service of the Civil Service. Being a presidential appointee, he comes under the direct disciplining authority of the President. This is in line with the settled principle that the "power to remove is inherent in the power to appoint" conferred to the President by Section 16, Article VII of the Constitution. . . . This power of removal, however, is not an absolute one which accepts no reservation. It must be pointed out that petitioner is a career service officer. . . . Specifically, Section 36 of P.D. No. 807, as amended, otherwise known as Civil Service Decree of the Philippines, is emphatic that career service officers and employees who enjoy security of tenure may be removed only for any of the causes enumerated in said law. In other words, the fact that petitioner is a presidential appointee does not give the appointing authority the license to remove him at will or at his pleasure for it is an admitted fact that he is likewise a career service officer who under the law is the recipient of tenurial protection, thus, may only be removed for cause and in accordance with procedural due process."

Petitioner maintains that as a career executive service officer, he can only be removed for cause and under the Administrative Code of 1987, 6 loss of confidence is not one of the legal causes or grounds for removal. Consequently, his dismissal from office on the ground of loss of confidence violated his right to security of tenure; petitioner theorized. After a careful study, we are of the irresistible conclusion that the Court of Appeals ruled correctly on the first three issues. To be sure, petitioner was not denied the right to due process before the PCAGC. Records show that the petitioner filed his answer and other pleadings with respect to his alleged violation of internal revenue laws and regulations,

and he attended the hearings before the investigatory body. It is thus decisively clear that his protestation of non-observance of due process is devoid of any factual or legal basis. Neither can it be said that there was a violation of what petitioner asserts as his security of tenure. According to petitioner, as a Regional Director of Bureau of Internal Revenue, he is a CESO eligible entitled to security of tenure. However, petitioner's claim of CESO eligibility is anemic of evidentiary support. It was incumbent upon him to prove that he is a CESO eligible but unfortunately, he failed to adduce sufficient evidence on the matter. His failure to do so is fatal. As regards the issue of constitutionality of the PCAGC, it was only posed by petitioner in his motion for reconsideration before the Regional Trial Court of Makati. It was certainly too late to raise the said issue for the first time at such late stage of the proceedings below. How about the fourth issue, whether in view of the Resolution of the Ombudsman dismissing the charges against petitioner, there still remains a basis for the latter's dismissal with forfeiture of benefits, as directed in Administrative Order No. 152?

It is worthy to note that in the case under consideration, the administrative action against the petitioner was taken prior to the institution of the criminal case. The charges included in Administrative Order No. 152 were based on the results of investigation conducted by the PCAGC and not on the criminal charges before the Ombudsman. In sum, the petition is dismissable on the ground that the issues posited by the petitioner do not constitute a valid legal basis for overturning the finding and conclusion arrived at by the Court of Appeals. However, taking into account the antecedent facts and circumstances aforementioned, the Court, in the exercise of its equity powers, has decided to consider the dismissal of the charges against petitioner before the Ombudsman, the succinct, and unmistakable manifestation by the Commissioner of the Bureau of Internal Revenue that his office is no longer interested in pursuing the case, and the position taken by the Solicitor General, 7 that there is no more basis for Administrative Order No. 152, as effective and substantive supervening events that cannot be overlooked. WHEREFORE, in light of the foregoing effective and substantive supervening events, and in the exercise of its equity powers, the Court hereby GRANTS the petition. Accordingly, Administrative Order No. 152 is considered LIFTED, and petitioner can be allowed to retire with full benefits. No pronouncement as to costs. SO ORDERED.

EN BANC
[G.R. No. 183591. October 14, 2008.] THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS SACDALAN and/or VICE-GOVERNOR EMMANUEL PIOL, for and in his own behalf, petitioners, vs. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN and/or GEN. HERMOGENES ESPERON, JR., the latter in his capacity as the present and duly-appointed Presidential Adviser on the Peace Process (OPAPP) or the so-called Office of the Presidential Adviser on the Peace Process, respondents. [G.R. No. 183752. October 14, 2008.] CITY GOVERNMENT OF ZAMBOANGA, as represented by HON. CELSO L. LOBREGAT, City Mayor of Zamboanga, and in his personal capacity as resident of the City of Zamboanga, Rep. MA. ISABELLE G. CLIMACO, District 1, and Rep. ERICO BASILIO A. FABIAN, District 2, City of Zamboanga, petitioners, vs. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL (GRP), as represented by RODOLFO C. GARCIA, LEAH ARMAMENTO, SEDFREY CANDELARIA, MARK RYAN SULLIVAN and HERMOGENES ESPERON, in his capacity as the Presidential Adviser on Peace Process, respondents. [G.R. No. 183893. October 14, 2008.] THE CITY OF ILIGAN, duly represented by CITY MAYOR LAWRENCE LLUCH CRUZ, petitioner, vs. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN, GEN. HERMOGENES ESPERON, JR., in his capacity as the present and duly appointed Presidential Adviser on the Peace Process; and/or SEC. EDUARDO ERMITA, in his capacity as Executive Secretary, respondents.

[G.R. No. 183951. October 14, 2008.] THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as represented by HON. ROLANDO E. YEBES, in his capacity as Provincial Governor, HON. FRANCIS H. OLVIS, in his capacity as Vice-Governor and Presiding Officer of the Sangguniang Panlalawigan, HON. CECILIA JALOSJOS CARREON, Congresswoman, 1st Congressional District, HON. CESAR G. JALOSJOS, Congressman, 3rd Congressional District, and Members of the Sangguniang Panlalawigan of the Province of Zamboanga del Norte, namely, HON. SETH FREDERICK P. JALOSJOS, HON. FERNANDO R. CABIGON, JR., HON. ULDARICO M. MEJORADA II, HON. EDIONAR M. ZAMORAS, HON. EDGAR J. BAGUIO, HON. CEDRIC L. ADRIATICO, HON. FELIXBERTO C. BOLANDO, HON. JOSEPH BRENDO C. AJERO, HON. NORBIDEIRI B. EDDING, HON. ANECITO S. DARUNDAY, HON. ANGELICA J. CARREON and HON. LUZVIMINDA E. TORRINO, petitioners, vs. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL [GRP], as represented by HON. RODOLFO C. GARCIA and HON. HERMOGENES ESPERON, in his capacity as the Presidential Adviser of Peace Process, respondents. [G.R. No. 183962. October 14, 2008.] ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L. PIMENTEL III, petitioners, vs. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL, represented by its Chairman RODOLFO C. GARCIA, and the MORO ISLAMIC LIBERATION FRONT PEACE NEGOTIATING PANEL, represented by its Chairman MOHAGHER IQBAL, respondents. FRANKLIN M. DRILON and ADEL ABBAS TAMANO, petitionersin-intervention. SEN. MANUEL A. ROXAS, petitioner-in-intervention. MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor NOEL N. DEANO, petitioner-in-intervention.

THE CITY OF ISABELA, BASILAN PROVINCE, represented by MAYOR CHERRYLYN P. SANTOS-AKBAR, petitioner-inintervention. THE PROVINCE OF SULTAN KUDARAT, rep. by HON. SUHARTO T. MANGUDADATU, in his capacity as Provincial Governor and a resident of the Province of Sultan Kudarat, petitioner-in-intervention. RUY ELIAS LOPEZ, for and in his own behalf and on behalf of Indigenous Peoples in Mindanao Not Belonging to the MILF, petitioner-in-intervention. CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT, JOSELITO C. ALISUAG and RICHALEX G. JAGMIS, as citizens and residents of Palawan, petitioners-in-intervention. MARINO RIDAO and KISIN BUXANI, petitioners-in-intervention. MUSLIM LEGAL ASSISTANCE FOUNDATION, INC. (MUSLAF), respondent-in-intervention. MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & DEVELOPMENT (MMMPD), respondent-in-intervention.

DECISION

CARPIO-MORALES, J :
p

Subject of these consolidated cases is the extent of the powers of the President in pursuing the peace process. While the facts surrounding this controversy center on the armed conflict in Mindanao between the government and the Moro Islamic Liberation Front (MILF), the legal issue involved has a bearing on all areas in the country where there has been a long-standing armed conflict. Yet again, the Court is tasked to perform a delicate balancing act. It must uncompromisingly delineate the bounds within which the President may lawfully exercise her discretion, but it must do so in strict adherence to the Constitution, lest its ruling unduly restricts the freedom of action vested by that same

Constitution in the Chief Executive precisely to enable her to pursue the peace process effectively. I.FACTUAL ANTECEDENTS OF THE PETITIONS On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the MILF, through the Chairpersons of their respective peace negotiating panels, were scheduled to sign a Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia. The MILF is a rebel group which was established in March 1984 when, under the leadership of the late Salamat Hashim, it splintered from the Moro National Liberation Front (MNLF) then headed by Nur Misuari, on the ground, among others, of what Salamat perceived to be the manipulation of the MNLF away from an Islamic basis towards Marxist-Maoist orientations. 1 The signing of the MOA-AD between the GRP and the MILF was not to materialize, however, for upon motion of petitioners, specifically those who filed their cases before the scheduled signing of the MOA-AD, this Court issued a Temporary Restraining Order enjoining the GRP from signing the same.
IECcaA

The MOA-AD was preceded by a long process of negotiation and the concluding of several prior agreements between the two parties beginning in 1996, when the GRPMILF peace negotiations began. On July 18, 1997, the GRP and MILF Peace Panels signed the Agreement on General Cessation of Hostilities. The following year, they signed the General Framework of Agreement of Intent on August 27, 1998. The Solicitor General, who represents respondents, summarizes the MOA-AD by stating that the same contained, among others, the commitment of the parties to pursue peace negotiations, protect and respect human rights, negotiate with sincerity in the resolution and pacific settlement of the conflict, and refrain from the use of threat or force to attain undue advantage while the peace negotiations on the substantive agenda are on-going. 2 Early on, however, it was evident that there was not going to be any smooth sailing in the GRP-MILF peace process. Towards the end of 1999 up to early 2000, the MILF attacked a number of municipalities in Central Mindanao and, in March 2000, it took control of the town hall of Kauswagan, Lanao del Norte. 3 In response, then President Joseph Estrada
declared and carried out an "all-out-war" against the MILF.
cHDaEI

When President Gloria Macapagal-Arroyo assumed office, the military offensive against the MILF was suspended and the government sought a resumption of the peace talks. The MILF, according to a leading MILF member, initially responded with deep reservation,

but when President Arroyo asked the Government of Malaysia through Prime Minister Mahathir Mohammad to help convince the MILF to return to the negotiating table, the MILF convened its Central Committee to seriously discuss the matter and, eventually, decided to meet with the GRP. 4 The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated by the Malaysian government, the parties signing on the same date the Agreement on the General Framework for the Resumption of Peace Talks Between the GRP and the MILF. The MILF thereafter suspended all its military actions. 5 Formal peace talks between the parties were held in Tripoli, Libya from June 20-22, 2001, the outcome of which was the GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement 2001) containing the basic principles and agenda on the following aspects of the negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral Domain Aspect. With regard to the Ancestral Domain Aspect, the parties in Tripoli Agreement 2001 simply agreed "that the same be discussed further by the Parties in their next meeting". A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7, 2001 which ended with the signing of the Implementing Guidelines on the Security Aspect of the Tripoli Agreement 2001 leading to a ceasefire status between the parties. This was followed by the Implementing Guidelines on the Humanitarian Rehabilitation and Development Aspects of the Tripoli Agreement 2001, which was signed on May 7, 2002 at Putrajaya, Malaysia. Nonetheless, there were many incidence of violence between government forces and the MILF from 2002 to 2003. Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he was replaced by Al Haj Murad, who was then the chief peace negotiator of the MILF. Murad's position as chief peace negotiator was taken over by Mohagher Iqbal. 6
ISCHET

In 2005, several exploratory talks were held between the parties in Kuala Lumpur, eventually leading to the crafting of the draft MOA-AD in its final form, which, as mentioned, was set to be signed last August 5, 2008. II.STATEMENT OF THE PROCEEDINGS Before the Court is what is perhaps the most contentious "consensus" ever embodied in an instrument the MOA-AD which is assailed principally by the present petitions bearing docket numbers 183591, 183752, 183893, 183951 and 183962.

Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain. 7
and the Presidential Adviser on the Peace Process (PAPP) Hermogenes Esperon, Jr.

On July 23, 2008, the Province of North Cotabato 8 and Vice-Governor Emmanuel Piol
filed a petition, docketed as G.R. No. 183591, for Mandamus and Prohibition with Prayer for the Issuance of Writ of Preliminary Injunction and Temporary Restraining Order. 9 Invoking the right to information on matters of public concern, petitioners seek to compel respondents to disclose and furnish them the complete and official copies of the MOA-AD including its attachments, and to prohibit the slated signing of the MOA-AD, pending the disclosure of the contents of the MOA-AD and the holding of a public consultation thereon. Supplementarily, petitioners pray that the MOA-AD be declared unconstitutional. 10

This initial petition was followed by another one, docketed as G.R. No. 183752, also for Mandamus and Prohibition. 11 filed by the City of Zamboanga, 12 Mayor Celso Lobregat,
Rep. Ma. Isabelle Climaco and Rep. Erico Basilio Fabian who likewise pray for similar injunctive reliefs. Petitioners herein moreover pray that the City of Zamboanga be excluded from the Bangsamoro Homeland and/or Bangsamoro Juridical Entity and, in the alternative, that the MOA-AD be declared null and void.

By Resolution of August 4, 2008, the Court issued a Temporary Restraining Order commanding and directing public respondents and their agents to cease and desist from formally signing the MOA-AD. 13 The Court also required the Solicitor General to submit to
the Court and petitioners the official copy of the final draft of the MOA-AD, 14 to which she complied. 15

Meanwhile, the City of Iligan 16 filed a petition for Injunction and/or Declaratory Relief,
docketed as G.R. No. 183893, praying that respondents be enjoined from signing the MOA-AD or, if the same had already been signed, from implementing the same, and that the MOA-AD be declared unconstitutional. Petitioners herein additionally implead Executive Secretary Eduardo Ermita as respondent.
HSDCTA

The Province of Zamboanga del Norte, 17 Governor Rolando Yebes, Vice-Governor Francis
Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members 18 of the Sangguniang Panlalawigan of Zamboanga del Norte filed on August 15, 2008 a petition for Certiorari, Mandamus and Prohibition, 19 docketed as G.R. No. 183951. They pray, inter alia, that the MOA-AD be declared null and void and without operative effect, and that respondents be enjoined from executing the MOA-AD.

On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a petition for Prohibition, 20 docketed as G.R. No. 183962, praying for a judgment prohibiting
and permanently enjoining respondents from formally signing and executing the MOA-AD and or any other agreement derived therefrom or similar thereto, and nullifying the MOA-AD for being unconstitutional and illegal. Petitioners herein additionally implead as respondent the MILF Peace Negotiating Panel represented by its Chairman Mohagher Iqbal.

Various parties moved to intervene and were granted leave of court to file their petitions/comments-in-intervention. Petitioners-in-intervention include Senator Manuel A. Roxas, former Senate President Franklin Drilon and Atty. Adel Tamano, the City of Isabela 21

and Mayor Cherrylyn Santos-Akbar, the Province of Sultan Kudarat 22 and Gov. Suharto Mangudadatu, the Municipality of Linamon in Lanao del Norte, 23 Ruy Elias Lopez of Davao City and of the Bagobo tribe, Sangguniang Panlungsod member Marino Ridao and businessman Kisin Buxani, both of Cotabato City; and lawyers Carlo Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag, Richalex Jagmis, all of Palawan City. The Muslim Legal Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral Movement for Peace and Development (MMMPD) filed their respective Comments-in-Intervention.
aIHSEc

By subsequent Resolutions, the Court ordered the consolidation of the petitions. Respondents filed Comments on the petitions, while some of petitioners submitted their respective Replies. Respondents, by Manifestation and Motion of August 19, 2008, stated that the Executive Department shall thoroughly review the MOA-AD and pursue further negotiations to address the issues hurled against it, and thus moved to dismiss the cases. In the succeeding exchange of pleadings, respondents' motion was met with vigorous opposition from petitioners. The cases were heard on oral argument on August 15, 22 and 29, 2008 that tackled the following principal issues:
1.Whether the petitions have become moot and academic (i)insofar as the mandamus aspect is concerned, in view of the disclosure of official copies of the final draft of the Memorandum of Agreement (MOA); and (ii)insofar as the prohibition aspect involving the Local Government Units is concerned, if it is considered that consultation has become fait accompli with the finalization of the draft; 2.Whether the constitutionality and the legality of the MOA is ripe for adjudication; 3.Whether respondent Government of the Republic of the Philippines Peace Panel committed grave abuse of discretion amounting to lack or excess of jurisdiction when it negotiated and initiated the MOA vis--vis ISSUES Nos. 4 and 5; 4.Whether there is a violation of the people's right to information on matters of public concern (1987 Constitution, Article III, Sec. 7) under a state policy of full disclosure of all its transactions involving public interest (1987 Constitution, Article II, Sec. 28) including public consultation under Republic Act No. 7160 (LOCAL GOVERNMENT CODE OF 1991)[;]

If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil Procedure is an appropriate remedy; 5.Whether by signing the MOA, the Government of the Republic of the Philippines would be BINDING itself
ACcISa

a)to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical, territorial or political subdivision not recognized by law; b)to revise or amend the Constitution and existing laws to conform to the MOA; c)to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral domain in violation of Republic Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997), particularly Section 3(g) & Chapter VII (DELINEATION, RECOGNITION OF ANCESTRAL DOMAINS)[;] If in the affirmative, whether the Executive Branch has the authority to so bind the Government of the Republic of the Philippines; 6.Whether the inclusion/exclusion of the Province of North Cotabato, Cities of Zamboanga, Iligan and Isabela, and the Municipality of Linamon, Lanao del Norte in/from the areas covered by the projected Bangsamoro Homeland is a justiciable question; and 7.Whether desistance from signing the MOA derogates any prior valid commitments of the Government of the Republic of the Philippines. 24

The Court, thereafter, ordered the parties to submit their respective Memoranda. Most of the parties submitted their memoranda on time. III.OVERVIEW OF THE MOA-AD As a necessary backdrop to the consideration of the objections raised in the subject five petitions and six petitions-in-intervention against the MOA-AD, as well as the two comments-in-intervention in favor of the MOA-AD, the Court takes an overview of the MOA. The MOA-AD identifies the Parties to it as the GRP and the MILF. Under the heading "Terms of Reference" (TOR), the MOA-AD includes not only four earlier agreements between the GRP and MILF, but also two agreements between the GRP and the MNLF: the 1976 Tripoli Agreement, and the Final Peace Agreement on the

Implementation of the 1976 Tripoli Agreement, signed on September 2, 1996 during the administration of President Fidel Ramos.
TICAcD

The MOA-AD also identifies as TOR two local statutes the organic act for the Autonomous Region in Muslim Mindanao (ARMM) 25 and the Indigenous Peoples Rights
Act (IPRA), 26 and several international law instruments the ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries in relation to the UN Declaration on the Rights of the Indigenous Peoples, and the UN Charter, among others.

The MOA-AD includes as a final TOR the generic category of "compact rights entrenchment emanating from the regime of dar-ul-mua'hada (or territory under compact) and dar-ul-sulh (or territory under peace agreement) that partakes the nature of a treaty device". During the height of the Muslim Empire, early Muslim jurists tended to see the world through a simple dichotomy: there was the dar-ul-Islam (the Abode of Islam) and dar-ulharb (the Abode of War). The first referred to those lands where Islamic laws held sway, while the second denoted those lands where Muslims were persecuted or where Muslim laws were outlawed or ineffective. 27 This way of viewing the world, however, became more
complex through the centuries as the Islamic world became part of the international community of nations.

As Muslim States entered into treaties with their neighbors, even with distant States and inter-governmental organizations, the classical division of the world into dar-ul-Islam and dar-ul-harb eventually lost its meaning. New terms were drawn up to describe novel ways of perceiving non-Muslim territories. For instance, areas like dar-ul-mua'hada (land of compact) and dar-ul-sulh (land of treaty) referred to countries which, though under a secular regime, maintained peaceful and cooperative relations with Muslim States, having been bound to each other by treaty or agreement. Dar-ul-aman (land of order), on the other hand, referred to countries which, though not bound by treaty with Muslim States, maintained freedom of religion for Muslims. 28 It thus appears that the "compact rights entrenchment" emanating from the regime of darul-mua'hada and dar-ul-sulh simply refers to all other agreements between the MILF and the Philippine government the Philippines being the land of compact and peace agreement that partake of the nature of a treaty device, "treaty" being broadly defined as "any solemn agreement in writing that sets out understandings, obligations, and benefits for both parties which provides for a framework that elaborates the principles declared in the [MOA-AD]". 29

The MOA-AD states that the Parties "HAVE AGREED AND ACKNOWLEDGED AS FOLLOWS", and starts with its main body.

The main body of the MOA-AD is divided into four strands, namely, Concepts and Principles, Territory, Resources, and Governance. A.CONCEPTS AND PRINCIPLES This strand begins with the statement that it is "the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be accepted as 'Bangsamoros'". It defines "Bangsamoro people" as the natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization, and their descendants whether mixed or of full blood, including their spouses. 30 Thus, the concept of "Bangsamoro", as defined in this strand of the MOA-AD, includes not only "Moros" as traditionally understood even by Muslims, 31 but all indigenous
peoples of Mindanao and its adjacent islands. The MOA-AD adds that the freedom of choice of indigenous peoples shall be respected. What this freedom of choice consists in has not been specifically defined.
ICTaEH

The MOA-AD proceeds to refer to the "Bangsamoro homeland", the ownership of which is vested exclusively in the Bangsamoro people by virtue of their prior rights of occupation. 32 Both parties to the MOA-AD acknowledge that ancestral domain does not form part of the public domain. 33 The Bangsamoro people are acknowledged as having the right to self-governance, which right is said to be rooted on ancestral territoriality exercised originally under the suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw. The sultanates were described as states or "karajaan/kadatuan" resembling a body politic endowed with all the elements of a nation-state in the modern sense. 34 The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on the past suzerain authority of the sultanates. As gathered, the territory defined as the Bangsamoro homeland was ruled by several sultanates and, specifically in the case of the Maranao, by the Pat a Pangampong ku Ranaw, a confederation of independent principalities (pangampong) each ruled by datus and sultans, none of whom was supreme over the others. 35 The MOA-AD goes on to describe the Bangsamoro people as "the 'First Nation' with defined territory and with a system of government having entered into treaties of amity and commerce with foreign nations". The term "First Nation" is of Canadian origin referring to the indigenous peoples of that territory, particularly those known as Indians. In Canada, each of these indigenous peoples is equally entitled to be called "First Nation", hence, all of them are usually described collectively by the plural "First Nations". 36 To that extent, the MOA-AD, by

identifying the Bangsamoro people as "the First Nation" suggesting its exclusive entitlement to that designation departs from the Canadian usage of the term.

The MOA-AD then mentions for the first time the "Bangsamoro Juridical Entity" (BJE) to which it grants the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro. 37
ADaECI

B.TERRITORY The territory of the Bangsamoro homeland is described as the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, including the aerial domain and the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region.
38

More specifically, the core of the BJE is defined as the present geographic area of the ARMM thus constituting the following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City. Significantly, this core also includes certain municipalities of Lanao del Norte that voted for inclusion in the ARMM in the 2001 plebiscite. 39 Outside of this core, the BJE is to cover other provinces, cities, municipalities and barangays, which are grouped into two categories, Category A and Category B. Each of these areas is to be subjected to a plebiscite to be held on different dates, years apart from each other. Thus, Category A areas are to be subjected to a plebiscite not later than twelve (12) months following the signing of the MOA-AD. 40 Category B areas, also called
"Special Intervention Areas", on the other hand, are to be subjected to a plebiscite twenty-five (25) years from the signing of a separate agreement the Comprehensive Compact. 41

The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural resources within its "internal waters", defined as extending fifteen (15) kilometers from the coastline of the BJE area; 42 that the BJE shall also have "territorial waters", which shall
stretch beyond the BJE internal waters up to the baselines of the Republic of the Philippines (RP) south east and south west of mainland Mindanao; and that within these territorial waters, the BJE and the "Central Government" (used interchangeably with RP) shall exercise joint jurisdiction, authority and management over all natural resources. 43 Notably, the jurisdiction over the internal waters is not similarly described as "joint".

The MOA-AD further provides for the sharing of minerals on the territorial waters between the Central Government and the BJE, in favor of the latter, through production sharing and economic cooperation agreement. 44 The activities which the Parties are allowed
to conduct on the territorial waters are enumerated, among which are the exploration and utilization of natural resources, regulation of shipping and fishing activities, and the enforcement of police and safety measures. 45 There is no similar provision on the sharing of minerals and allowed activities with respect to the internal waters of the BJE.

C.RESOURCES The MOA-AD states that the BJE is free to enter into any economic cooperation and trade relations with foreign countries and shall have the option to establish trade missions in those countries. Such relationships and understandings, however, are not to include aggression against the GRP. The BJE may also enter into environmental cooperation agreements. 46
ACcaET

The external defense of the BJE is to remain the duty and obligation of the Central Government. The Central Government is also bound to "take necessary steps to ensure the BJE's participation in international meetings and events" like those of the ASEAN and the specialized agencies of the UN. The BJE is to be entitled to participate in Philippine official missions and delegations for the negotiation of border agreements or protocols for environmental protection and equitable sharing of incomes and revenues involving the bodies of water adjacent to or between the islands forming part of the ancestral domain. 47 With regard to the right of exploring for, producing, and obtaining all potential sources of energy, petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction and control thereon is to be vested in the BJE "as the party having control within its territorial jurisdiction". This right carries the proviso that, "in times of national emergency, when public interest so requires", the Central Government may, for a fixed period and under reasonable terms as may be agreed upon by both Parties, assume or direct the operation of such resources. 48 The sharing between the Central Government and the BJE of total production pertaining to natural resources is to be 75:25 in favor of the BJE. 49 The MOA-AD provides that legitimate grievances of the Bangsamoro people arising from any unjust dispossession of their territorial and proprietary rights, customary land tenures, or their marginalization shall be acknowledged. Whenever restoration is no longer possible, reparation is to be in such form as mutually determined by the Parties. 50
STDEcA

The BJE may modify or cancel the forest concessions, timber licenses, contracts or agreements, mining concessions, Mineral Production and Sharing Agreements (MPSA), Industrial Forest Management Agreements (IFMA), and other land tenure instruments granted by the Philippine Government, including those issued by the present ARMM. 51 D.GOVERNANCE The MOA-AD binds the Parties to invite a multinational third-party to observe and monitor the implementation of the Comprehensive Compact. This compact is to embody the "details for the effective enforcement" and "the mechanisms and modalities

for the actual implementation" of the MOA-AD. The MOA-AD explicitly provides that the participation of the third party shall not in any way affect the status of the relationship between the Central Government and the BJE. 52 The "associative" relationship between the Central Government and the BJE The MOA-AD describes the relationship of the Central Government and the BJE as "associative", characterized by shared authority and responsibility. And it states that the structure of governance is to be based on executive, legislative, judicial, and administrative institutions with defined powers and functions in the Comprehensive Compact. The MOA-AD provides that its provisions requiring "amendments to the existing legal framework" shall take effect upon signing of the Comprehensive Compact and upon effecting the aforesaid amendments, with due regard to the non-derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact. As will be discussed later, much of the present controversy hangs on the legality of this provision. The BJE is granted the power to build, develop and maintain its own institutions inclusive of civil service, electoral, financial and banking, education, legislation, legal, economic, police and internal security force, judicial system and correctional institutions, the details of which shall be discussed in the negotiation of the comprehensive compact.
AIaDcH

As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo Garcia and Mohagher Iqbal, Chairpersons of the Peace Negotiating Panels of the GRP and the MILF, respectively. Notably, the penultimate paragraph of the MOA-AD identifies the signatories as "the representatives of the Parties", meaning the GRP and MILF themselves, and not merely of the negotiating panels. 53 In addition, the signature
page of the MOA-AD states that it is "WITNESSED BY" Datuk Othman Bin Abd Razak, Special Adviser to the Prime Minister of Malaysia, "ENDORSED BY" Ambassador Sayed Elmasry, Adviser to Organization of the Islamic Conference (OIC) Secretary General and Special Envoy for Peace Process in Southern Philippines, and SIGNED "IN THE PRESENCE OF" Dr. Albert G. Romulo, Secretary of Foreign Affairs of RP and Dato' Seri Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs, Malaysia, all of whom were scheduled to sign the Agreement last August 5, 2008.

Annexed to the MOA-AD are two documents containing the respective lists cum maps of the provinces, municipalities, and barangays under Categories A and B earlier mentioned in the discussion on the strand on TERRITORY.

IV.PROCEDURAL ISSUES A.RIPENESS The power of judicial review is limited to actual cases or controversies. 54 Courts decline
to issue advisory opinions or to resolve hypothetical or feigned problems, or mere academic questions. 55 The limitation of the power of judicial review to actual cases and controversies defines the role assigned to the judiciary in a tripartite allocation of power, to assure that the courts will not intrude into areas committed to the other branches of government. 56

An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute. There must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence. 57 The Court can
decide the constitutionality of an act or treaty only when a proper case between opposing parties is submitted for judicial determination. 58
CEHcSI

Related to the requirement of an actual case or controversy is the requirement of ripeness. A question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. 59 For a case to be considered ripe for adjudication, it
is a prerequisite that something had then been accomplished or performed by either branch before a court may come into the picture, 60 and the petitioner must allege the existence of an immediate or threatened injury to itself as a result of the challenged action. 61 He must show that he has sustained or is immediately in danger of sustaining some direct injury as a result of the act complained of. 62

The Solicitor General argues that there is no justiciable controversy that is ripe for judicial review in the present petitions, reasoning that:
The unsigned MOA-AD is simply a list of consensus points subject to further negotiations and legislative enactments as well as constitutional processes aimed at attaining a final peaceful agreement. Simply put, the MOA-AD remains to be a proposal that does not automatically create legally demandable rights and obligations until the list of operative acts required have been duly complied with. . . . xxx xxx xxx In the cases at bar, it is respectfully submitted that this Honorable Court has no authority to pass upon issues based on hypothetical or feigned constitutional problems or interests with no concrete bases. Considering the preliminary character of the MOA-AD, there are no concrete acts that could possibly violate petitioners' and intervenors' rights since the acts complained of are mere contemplated steps toward the formulation of a final peace agreement. Plainly, petitioners and intervenors' perceived injury, if at all, is merely imaginary and

illusory apart from being unfounded and based on mere conjectures. (Underscoring supplied)

The Solicitor General cites 63 the following provisions of the MOA-AD:

TERRITORY xxx xxx xxx 2.Toward this end, the Parties enter into the following stipulations: xxx xxx xxx d.Without derogating from the requirements of prior agreements, the Government stipulates to conduct and deliver, using all possible legal measures, within twelve (12) months following the signing of the MOA-AD, a plebiscite covering the areas as enumerated in the list and depicted in the map as Category A attached herein (the "Annex"). The Annex constitutes an integral part of this framework agreement. Toward this end, the Parties shall endeavor to complete the negotiations and resolve all outstanding issues on the Comprehensive Compact within fifteen (15) months from the signing of the MOA-AD.
caTESD

xxx xxx xxx GOVERNANCE xxx xxx xxx 7.The Parties agree that mechanisms and modalities for the actual implementation of this MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such steps to enable it to occur effectively.
CASTDI

Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon the signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework with due regard to non-derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact. 64 (Underscoring supplied)

The Solicitor General's arguments fail to persuade. Concrete acts under the MOA-AD are not necessary to render the present controversy ripe. In Pimentel, Jr. v. Aguirre, 65 this Court held:

. . . [B]y the mere enactment of the questioned law or the approval of the challenged action, the dispute is said to have ripened into a judicial controversy even without any other overt act. Indeed, even a singular violation of the Constitution and/or the law is enough to awaken judicial duty.
DEaCSA

xxx xxx xxx By the same token, when an act of the President, who in our constitutional scheme is a coequal of Congress, is seriously alleged to have infringed the Constitution and the laws . . . settling the dispute becomes the duty and the responsibility of the courts. 66

In Santa Fe Independent School District v. Doe, 67 the United States Supreme Court held
that the challenge to the constitutionality of the school's policy allowing student-led prayers and speeches before games was ripe for adjudication, even if no public prayer had yet been led under the policy, because the policy was being challenged as unconstitutional on its face. 68

That the law or act in question is not yet effective does not negate ripeness. For example, in New York v. United States, 69 decided in 1992, the United States Supreme Court held that
the action by the State of New York challenging the provisions of the Low-Level Radioactive Waste Policy Act was ripe for adjudication even if the questioned provision was not to take effect until January 1, 1996, because the parties agreed that New York had to take immediate action to avoid the provision's consequences. 70

The present petitions pray for Certiorari, 71 Prohibition, and Mandamus. Certiorari and
Prohibition are remedies granted by law when any tribunal, board or officer has acted, in the case of certiorari, or is proceeding, in the case of prohibition, without or in excess of its jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. 72 Mandamus is a remedy granted by law when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use or enjoyment of a right or office to which such other is entitled. 73 Certiorari, Mandamus and Prohibition are appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify, when proper, acts of legislative and executive officials. 74

The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O. No. 3), issued on February 28, 2001. 75 The said executive order requires that "[t]he
government's policy framework for peace, including the systematic approach and the administrative structure for carrying out the comprehensive peace process . . . be governed by this Executive Order". 76

The present petitions allege that respondents GRP Panel and PAPP Esperon drafted the terms of the MOA-AD without consulting the local government units or communities affected, nor informing them of the proceedings. As will be discussed in greater detail

later, such omission, by itself, constitutes a departure by respondents from their mandate under E.O. No. 3. Furthermore, the petitions allege that the provisions of the MOA-AD violate the Constitution. The MOA-AD provides that "any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon the signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework", implying an amendment of the Constitution to accommodate the MOA-AD. This stipulation, in effect, guaranteed to the MILF the amendment of the Constitution. Such act constitutes another violation of its authority. Again, these points will be discussed in more detail later. As the petitions allege acts or omissions on the part of respondent that exceed their authority, by violating their duties under E.O. No. 3 and the provisions of the Constitution and statutes, the petitions make a prima facie case for Certiorari, Prohibition, and Mandamus, and an actual case or controversy ripe for adjudication exists. When an act of a branch of government is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. 77
HSIDTE

B.LOCUS STANDI For a party to have locus standi, one must allege "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions". 78 Because constitutional cases are often public actions in which the relief sought is likely to affect other persons, a preliminary question frequently arises as to this interest in the constitutional question raised. 79 When suing as a citizen, the person complaining must allege that he has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.
80 When the issue concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the laws. 81
EaHcDS

For a taxpayer, one is allowed to sue where there is an assertion that public funds are illegally disbursed or deflected to an illegal purpose, or that there is a wastage of public funds through the enforcement of an invalid or unconstitutional law. 82 The Court retains discretion whether or not to allow a taxpayer's suit. 83

In the case of a legislator or member of Congress, an act of the Executive that injures the institution of Congress causes a derivative but nonetheless substantial injury that can be questioned by legislators. A member of the House of Representatives has standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in his office. 84 An organization may be granted standing to assert the rights of its members, 85 but the
mere invocation by the Integrated Bar of the Philippines or any member of the legal profession of the duty to preserve the rule of law does not suffice to clothe it with standing. 86

As regards a local government unit (LGU), it can seek relief in order to protect or vindicate an interest of its own, and of the other LGUs. 87 Intervenors, meanwhile, may be given legal standing upon showing of facts that satisfy the requirements of the law authorizing intervention, . 88 such as a legal interest in the
matter in litigation, or in the success of either of the parties.

In any case, the Court has discretion to relax the procedural technicality on locus standi, given the liberal attitude it has exercised, highlighted in the case of David v. MacapagalArroyo, 89 where technicalities of procedure were brushed aside, the constitutional issues raised
being of paramount public interest or of transcendental importance deserving the attention of the Court in view of their seriousness, novelty and weight as precedents. 90 The Court's forbearing stance on locus standi on issues involving constitutional issues has for its purpose the protection of fundamental rights.

In not a few cases, the Court, in keeping with its duty under the Constitution to determine whether the other branches of government have kept themselves within the limits of the Constitution and the laws and have not abused the discretion given them, has brushed aside technical rules of procedure. 91
ScHADI

In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591) Province of Zamboanga del Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893) and City of Zamboanga (G.R. No. 183752) and petitioners-in-intervention Province of Sultan Kudarat, City of Isabela and Municipality of Linamon have locus standi in view of the direct and substantial injury that they, as LGUs, would suffer as their territories, whether in whole or in part, are to be included in the intended domain of the BJE. These petitioners allege that they did not vote for their inclusion in the ARMM which would be expanded to form the BJE territory. Petitioners' legal standing is thus beyond doubt. In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel III would have no standing as citizens and taxpayers for their failure to specify that they would be denied some right or privilege or there would be wastage of public funds. The fact that they are a former Senator, an incumbent mayor of Makati City, and a

resident of Cagayan de Oro, respectively, is of no consequence. Considering their invocation of the transcendental importance of the issues at hand, however, the Court grants them standing. Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers, assert that government funds would be expended for the conduct of an illegal and unconstitutional plebiscite to delineate the BJE territory. On that score alone, they can be given legal standing. Their allegation that the issues involved in these petitions are of "undeniable transcendental importance" clothes them with added basis for their personality to intervene in these petitions. With regard to Senator Manuel Roxas, his standing is premised on his being a member of the Senate and a citizen to enforce compliance by respondents of the public's constitutional right to be informed of the MOA-AD, as well as on a genuine legal interest in the matter in litigation, or in the success or failure of either of the parties. He thus possesses the requisite standing as an intervenor. With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3rd district of Davao City, a taxpayer and a member of the Bagobo tribe; Carlo B. Gomez, et al., as members of the IBP Palawan chapter, citizens and taxpayers; Marino Ridao, as taxpayer, resident and member of the Sangguniang Panlungsod of Cotabato City; and Kisin Buxani, as taxpayer, they failed to allege any proper legal interest in the present petitions. Just the same, the Court exercises its discretion to relax the procedural technicality on locus standi given the paramount public interest in the issues at hand.
ECaAHS

Intervening respondents Muslim Multi-Sectoral Movement for Peace and Development, an advocacy group for justice and the attainment of peace and prosperity in Muslim Mindanao; and Muslim Legal Assistance Foundation, Inc., a nongovernment organization of Muslim lawyers, allege that they stand to be benefited or prejudiced, as the case may be, in the resolution of the petitions concerning the MOAAD, and prays for the denial of the petitions on the grounds therein stated. Such legal interest suffices to clothe them with standing. B.MOOTNESS Respondents insist that the present petitions have been rendered moot with the satisfaction of all the reliefs prayed for by petitioners and the subsequent pronouncement of the Executive Secretary that "[n]o matter what the Supreme Court ultimately decides[,] the government will not sign the MOA". 92 In lending credence to this policy decision, the Solicitor General points out that the President had already disbanded the GRP Peace Panel. 93

In David v. Macapagal-Arroyo, 94 this Court held that the "moot and academic" principle not
being a magical formula that automatically dissuades courts in resolving a case, it will decide cases, otherwise moot and academic, if it finds that (a) there is a grave violation of the Constitution; 95 (b) the situation is of exceptional character and paramount public interest is involved; 96 (c) the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; 97 and (d) the case is capable of repetition yet evading review. 98

Another exclusionary circumstance that may be considered is where there is a voluntary cessation of the activity complained of by the defendant or doer. Thus, once a suit is filed and the doer voluntarily ceases the challenged conduct, it does not automatically deprive the tribunal of power to hear and determine the case and does not render the case moot especially when the plaintiff seeks damages or prays for injunctive relief against the possible recurrence of the violation. 93
SICDAa

The present petitions fall squarely into these exceptions to thus thrust them into the domain of judicial review. The grounds cited above in David are just as applicable in the present cases as they were, not only in David, but also in Province of Batangas v. Romulo
100 and Manalo v. Calderon 101 where the Court similarly decided them on the merits, supervening events that would ordinarily have rendered the same moot notwithstanding.

Petitions not mooted Contrary then to the asseverations of respondents, the non-signing of the MOA-AD and the eventual dissolution of the GRP Peace Panel did not moot the present petitions. It bears emphasis that the signing of the MOA-AD did not push through due to the Court's issuance of a Temporary Restraining Order. Contrary too to respondents' position, the MOA-AD cannot be considered a mere "list of consensus points", especially given its nomenclature, the need to have it signed or initialed by all the parties concerned on August 5, 2008, and the far-reaching Constitutional implications of these "consensus points", foremost of which is the creation of the BJE. In fact, as what will, in the main, be discussed, there is a commitment on the part of respondents to amend and effect necessary changes to the existing legal framework for certain provisions of the MOA-AD to take effect. Consequently, the present petitions are not confined to the terms and provisions of the MOA-AD, but to other ongoing and future negotiations and agreements necessary for its realization. The petitions have not, therefore, been rendered moot and academic simply by the public disclosure of the MOA-AD, 101 the manifestation that it will not be signed as well as the disbanding of the
GRP Panel notwithstanding.

Petitions are imbued with paramount public interest

There is no gainsaying that the petitions are imbued with paramount public interest, involving a significant part of the country's territory and the wide-ranging political modifications of affected LGUs. The assertion that the MOA-AD is subject to further legal enactments including possible Constitutional amendments more than ever provides impetus for the Court to formulate controlling principles to guide the bench, the bar, the public and, in this case, the government and its negotiating entity. Respondents cite Suplico v. NEDA, et al. 103 where the Court did not "pontificat[e] on issues
which no longer legitimately constitute an actual case or controversy [as this] will do more harm than good to the nation as a whole".

The present petitions must be differentiated from Suplico. Primarily, in Suplico, what was assailed and eventually cancelled was a stand-alone government procurement contract for a national broadband network involving a one-time contractual relation between two parties the government and a private foreign corporation. As the issues therein involved specific government procurement policies and standard principles on contracts, the majority opinion in Suplico found nothing exceptional therein, the factual circumstances being peculiar only to the transactions and parties involved in the controversy.
ATcaID

The MOA-AD is part of a series of agreements In the present controversy, the MOA-AD is a significant part of a series of agreements necessary to carry out the Tripoli Agreement 2001. The MOA-AD which dwells on the Ancestral Domain Aspect of said Tripoli Agreement is the third such component to be undertaken following the implementation of the Security Aspect in August 2001 and the Humanitarian, Rehabilitation and Development Aspect in May 2002. Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008 to the Solicitor General, has stated that "no matter what the Supreme Court ultimately decides[,] the government will not sign the MOA[-AD]", mootness will not set in in light of the terms of the Tripoli Agreement 2001. Need to formulate principles-guidelines Surely, the present MOA-AD can be renegotiated or another one will be drawn up to carry out the Ancestral Domain Aspect of the Tripoli Agreement 2001, in another or in any form, which could contain similar or significantly drastic provisions. While the Court notes the word of the Executive Secretary that the government "is committed to securing an agreement that is both constitutional and equitable because that is the only way that long-lasting peace can be assured", it is minded to render a decision on the

merits in the present petitions to formulate controlling principles to guide the bench, the bar, the public and, most especially, the government in negotiating with the MILF regarding Ancestral Domain. Respondents invite the Court's attention to the separate opinion of then Chief Justice Artemio Panganiban in Sanlakas v. Reyes 104 in which he stated that the doctrine of "capable
of repetition yet evading review" can override mootness, "provided the party raising it in a proper case has been and/or continue to be prejudiced or damaged as a direct result of their issuance". They contend that the Court must have jurisdiction over the subject matter for the doctrine to be invoked.
DHSEcI

The present petitions all contain prayers for Prohibition over which this Court exercises original jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP) is a petition for Injunction and Declaratory Relief, the Court will treat it as one for Prohibition as it has far reaching implications and raises questions that need to be resolved. 105 At all events,
the Court has jurisdiction over most if not the rest of the petitions.

Indeed, the present petitions afford a proper venue for the Court to again apply the doctrine immediately referred to as what it had done in a number of landmark cases. 106
There is a reasonable expectation that petitioners, particularly the Provinces of North Cotabato, Zamboanga del Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela, and the Municipality of Linamon, will again be subjected to the same problem in the future as respondents' actions are capable of repetition, in another or any form.

It is with respect to the prayers for Mandamus that the petitions have become moot, respondents having, by Compliance of August 7, 2008, provided this Court and petitioners with official copies of the final draft of the MOA-AD and its annexes. Too, intervenors have been furnished, or have procured for themselves, copies of the MOAAD. V.SUBSTANTIVE ISSUES As culled from the Petitions and Petitions-in-Intervention, there are basically two SUBSTANTIVE issues to be resolved, one relating to the manner in which the MOA-AD was negotiated and finalized, the other relating to its provisions, viz.: 1.Did respondents violate constitutional and statutory provisions on public consultation and the right to information when they negotiated and later initialed the MOA-AD? 2.Do the contents of the MOA-AD violate the Constitution and the laws? ON THE FIRST SUBSTANTIVE ISSUE

Petitioners invoke their constitutional right to information on matters of public concern, as provided in Section 7, Article III on the Bill of Rights:
Sec. 7.The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. 107

As early as 1948, in Subido v. Ozaeta, 108 Court has recognized the statutory right to
examine and inspect public records, a right which was eventually accorded constitutional status.
SaHTCE

The right of access to public documents, as enshrined in both the 1973 Constitution and the 1987 Constitution, has been recognized as a self-executory constitutional right. 109 In the 1976 case of Baldoza v. Hon. Judge Dimaano, 110 the Court ruled that access to
public records is predicated on the right of the people to acquire information on matters of public concern since, undoubtedly, in a democracy, the public has a legitimate interest in matters of social and political significance. . . . The incorporation of this right in the Constitution is a recognition of the fundamental role of free exchange of information in a democracy. There can be no realistic perception by the public of the nation's problems, nor a meaningful democratic decision-making if they are denied access to information of general interest. Information is needed to enable the members of society to cope with the exigencies of the times. As has been aptly observed: "Maintaining the flow of such information depends on protection for both its acquisition and its dissemination since, if either process is interrupted, the flow inevitably ceases." . . . 111

In the same way that free discussion enables members of society to cope with the exigencies of their time, access to information of general interest aids the people in democratic decision-making by giving them a better perspective of the vital issues confronting the nation 112 so that they may be able to criticize and participate in the affairs of
the government in a responsible, reasonable and effective manner. It is by ensuring an unfettered and uninhibited exchange of ideas among a well-informed public that a government remains responsive to the changes desired by the people. 113

The MOA-AD is a matter of public concern That the subject of the information sought in the present cases is a matter of public concern 114 faces no serious challenge. In fact, respondents admit that the MOA-AD is indeed
of public concern. 115 In previous cases, the Court found that the regularity of real estate transactions entered in the Register of Deeds, 116 the need for adequate notice to the public of the various laws, 117 the civil service eligibility of a public employee, 118 the proper

management of GSIS funds allegedly used to grant loans to public officials, 119 the recovery of the Marcoses' alleged ill-gotten wealth, 120 and the identity of party-list nominees, 121 among others, are matters of public concern. Undoubtedly, the MOA-AD subject of the present cases is of public concern, involving as it does the sovereignty and territorial integrity of the State, which directly affects the lives of the public at large.
ACcHIa

Matters of public concern covered by the right to information include steps and negotiations leading to the consummation of the contract. In not distinguishing as to the executory nature or commercial character of agreements, the Court has categorically ruled:
. . . [T]he right to information "contemplates inclusion of negotiations leading to the consummation of the transaction". Certainly, a consummated contract is not a requirement for the exercise of the right to information. Otherwise, the people can never exercise the right if no contract is consummated, and if one is consummated, it may be too late for the public to expose its defects. Requiring a consummated contract will keep the public in the dark until the contract, which may be grossly disadvantageous to the government or even illegal, becomes fait accompli. This negates the State policy of full transparency on matters of public concern, a situation which the framers of the Constitution could not have intended. Such a requirement will prevent the citizenry from participating in the public discussion of any proposed contract, effectively truncating a basic right enshrined in the Bill of Rights. We can allow neither an emasculation of a constitutional right, nor a retreat by the State of its avowed "policy of full disclosure of all its transactions involving public interest." 122 (Emphasis and italics in the original)

Intended as a "splendid symmetry" 123 to the right to information under the Bill of Rights is
the policy of public disclosure under Section 28, Article II of the Constitution reading: Sec. 28.Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. 124

The policy of full public disclosure enunciated in above-quoted Section 28 complements the right of access to information on matters of public concern found in the Bill of Rights. The right to information guarantees the right of the people to demand information, while Section 28 recognizes the duty of officialdom to give information even if nobody demands. 125 The policy of public disclosure establishes a concrete ethical principle for the conduct of public affairs in a genuinely open democracy, with the people's right to know as the centerpiece. It is a mandate of the State to be accountable by following such policy. 126

These provisions are vital to the exercise of the freedom of expression and essential to hold public officials at all times accountable to the people. 127
DcaCSE

Whether Section 28 is self-executory, the records of the deliberations of the Constitutional Commission so disclose:
MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or will not be in force and effect until after Congress shall have provided it.

MR. OPLE. I expect it to influence the climate of public ethics immediately but, of course, the implementing law will have to be enacted by Congress, Mr. Presiding Officer. 128

The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on the issue, is enlightening.
MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer, did I get the Gentleman correctly as having said that this is not a self-executing provision? It would require a legislation by Congress to implement? MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an amendment from Commissioner Regalado, so that the safeguards on national interest are modified by the clause "as may be provided by law". MR. DAVIDE. But as worded, does it not mean that this will immediately take effect and Congress may provide for reasonable safeguards on the sole ground national interest? MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should immediately influence the climate of the conduct of public affairs but, of course, Congress here may no longer pass a law revoking it, or if

this is approved, revoking this principle, which is inconsistent with this policy. 129 (Emphasis supplied)

Indubitably, the effectivity of the policy of public disclosure need not await the passing of a statute. As Congress cannot revoke this principle, it is merely directed to provide for "reasonable safeguards". The complete and effective exercise of the right to information necessitates that its complementary provision on public disclosure derive the same self-executory nature. Since both provisions go hand-in-hand, it is absurd to say that the broader 130 right to information on matters of public concern is already enforceable
while the correlative duty of the State to disclose its transactions involving public interest is not enforceable until there is an enabling law. Respondents cannot thus point to the absence of an implementing legislation as an excuse in not effecting such policy.
SDHAEC

An essential element of these freedoms is to keep open a continuing dialogue or process of communication between the government and the people. It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the people's will. 131 Envisioned to be
corollary to the twin rights to information and disclosure is the design for feedback mechanisms. MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be able to participate? Will the government provide feedback mechanisms so that the people can participate and can react where the existing media facilities are not able to provide full feedback mechanisms to the government? I suppose this will be part of the government implementing operational mechanisms. MR. OPLE. Yes. I think through their elected representatives and that is how these courses take place. There is a message and a feedback, both ways. xxx xxx xxx MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence? I think when we talk about the feedback network, we are not talking about public officials but also network of private business o[r] communitybased organizations that will be reacting. As a matter of fact, we will put more credence or credibility on the private network of volunteers and voluntary community-based organizations. So I do not think we are

afraid that there will be another OMA in the making. 132 (Emphasis supplied)
ScCEIA

The imperative of a public consultation, as a species of the right to information, is evident in the "marching orders" to respondents. The mechanics for the duty to disclose information and to conduct public consultation regarding the peace agenda and process is manifestly provided by E.O. No. 3. 133 The preambulatory clause of E.O. No. 3 declares that
there is a need to further enhance the contribution of civil society to the comprehensive peace process by institutionalizing the people's participation.

One of the three underlying principles of the comprehensive peace process is that it "should be community-based, reflecting the sentiments, values and principles important to all Filipinos" and "shall be defined not by the government alone, nor by the different contending groups only, but by all Filipinos as one community". 134 Included as a
component of the comprehensive peace process is consensus-building and empowerment for peace, which includes "continuing consultations on both national and local levels to build consensus for a peace agenda and process, and the mobilization and facilitation of people's participation in the peace process". 135

Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate "continuing" consultations, contrary to respondents' position that plebiscite is "more than sufficient consultation". 136 Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of which is to "[c]onduct regular dialogues with the National Peace Forum (NPF) and other peace partners to seek relevant information, comments, recommendations as well as to render appropriate and timely reports on the progress of the comprehensive peace process". 137 E.O. No. 3 mandates the establishment of the NPF to be "the principal forum for
the PAPP to consult with and seek advi[c]e from the peace advocates, peace partners and concerned sectors of society on both national and local levels, on the implementation of the comprehensive peace process, as well as for government[-]civil society dialogue and consensusbuilding on peace agenda and initiatives". 138
aTADcH

In fine, E.O. No. 3 establishes petitioners' right to be consulted on the peace agenda, as a corollary to the constitutional right to information and disclosure. PAPP Esperon committed grave abuse of discretion The PAPP committed grave abuse of discretion when he failed to carry out the pertinent consultation. The furtive process by which the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof.

The Court may not, of course, require the PAPP to conduct the consultation in a particular way or manner. It may, however, require him to comply with the law and discharge the functions within the authority granted by the President. 139 Petitioners are not claiming a seat at the negotiating table, contrary to respondents' retort in justifying the denial of petitioners' right to be consulted. Respondents' stance manifests the manner by which they treat the salient provisions of E.O. No. 3 on people's participation. Such disregard of the express mandate of the President is not much different from superficial conduct toward token provisos that border on classic lip service. 140 It illustrates a gross evasion of positive duty and a virtual refusal to perform the
duty enjoined.

As for respondents' invocation of the doctrine of executive privilege, it is not tenable under the premises. The argument defies sound reason when contrasted with E.O. No. 3's explicit provisions on continuing consultation and dialogue on both national and local levels. The executive order even recognizes the exercise of the public's right even before the GRP makes its official recommendations or before the government proffers its definite propositions. 141 It bears emphasis that E.O. No. 3 seeks to elicit relevant advice,
information, comments and recommendations from the people through dialogue.

AT ALL EVENTS, respondents effectively waived the defense of executive privilege in view of their unqualified disclosure of the official copies of the final draft of the MOAAD. By unconditionally complying with the Court's August 4, 2008 Resolution, without a prayer for the document's disclosure in camera, or without a manifestation that it was complying therewith ex abundante ad cautelam.
ESTDcC

Petitioners' assertion that the Local Government Code (LGC) of 1991 declares it a State policy to "require all national agencies and offices to conduct periodic consultations with appropriate local government units, non-governmental and people's organizations, and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions" 142 is well-taken. The LGC chapter on intergovernmental
relations puts flesh into this avowed policy: Prior Consultations Required. No project or program shall be implemented by government authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained: Provided, That occupants in areas where such projects are to be implemented shall not be evicted unless appropriate relocation sites have been provided, in accordance with the provisions of the Constitution. 143 (Italics and underscoring supplied)

In Lina, Jr. v. Hon. Pao, 144 the Court held that the above-stated policy and above-quoted
provision of the LGU apply only to national programs or projects which are to be implemented in a particular local community. Among the programs and projects covered are those that are

critical to the environment and human ecology including those that may call for the eviction of a particular group of people residing in the locality where these will be implemented. 145 The MOA-AD is one peculiar program that unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro people, 146 which could pervasively and drastically result to the diaspora or displacement of a great number of inhabitants from their total environment.

With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs), whose interests are represented herein by petitioner Lopez and are adversely affected by the MOA-AD, the ICCs/IPs have, under the IPRA, the right to participate fully at all levels of decision-making in matters which may affect their rights, lives and destinies.
147 The MOA-AD, an instrument recognizing ancestral domain, failed to justify its noncompliance with the clear-cut mechanisms ordained in said Act, 148 which entails, among other things, the observance of the free and prior informed consent of the ICCs/IPs.

Notably, the IPRA does not grant the Executive Department or any government agency the power to delineate and recognize an ancestral domain claim by mere agreement or compromise. The recognition of the ancestral domain is the raison d'etre of the MOAAD, without which all other stipulations or "consensus points" necessarily must fail. In proceeding to make a sweeping declaration on ancestral domain, without complying with the IPRA, which is cited as one of the TOR of the MOA-AD, respondents clearly transcended the boundaries of their authority. As it seems, even the heart of the MOA-AD is still subject to necessary changes to the legal framework. While paragraph 7 on Governance suspends the effectivity of all provisions requiring changes to the legal framework, such clause is itself invalid, as will be discussed in the following section.
TcSHaD

Indeed, ours is an open society, with all the acts of the government subject to public scrutiny and available always to public cognizance. This has to be so if the country is to remain democratic, with sovereignty residing in the people and all government authority emanating from them. 149 ON THE SECOND SUBSTANTIVE ISSUE With regard to the provisions of the MOA-AD, there can be no question that they cannot all be accommodated under the present Constitution and laws. Respondents have admitted as much in the oral arguments before this Court, and the MOA-AD itself recognizes the need to amend the existing legal framework to render effective at least some of its provisions. Respondents, nonetheless, counter that the MOA-AD is free of any legal infirmity because any provisions therein which are inconsistent with the present legal framework will not be effective until the necessary changes to that framework are made. The validity of this argument will be considered later. For now, the Court shall pass upon how

The MOA-AD is inconsistent with the Constitution and laws as presently worded. In general, the objections against the MOA-AD center on the extent of the powers conceded therein to the BJE. Petitioners assert that the powers granted to the BJE exceed those granted to any local government under present laws, and even go beyond those of the present ARMM. Before assessing some of the specific powers that would have been vested in the BJE, however, it would be useful to turn first to a general idea that serves as a unifying link to the different provisions of the MOA-AD, namely, the international law concept of association. Significantly, the MOA-AD explicitly alludes to this concept, indicating that the Parties actually framed its provisions with it in mind. Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last mentioned provision, however, that the MOA-AD most clearly uses it to describe the envisioned relationship between the BJE and the Central Government.
aTCAcI

4.The relationship between the Central Government and the Bangsamoro juridical entity shall be associative characterized by shared authority and responsibility with a structure of governance based on executive, legislative, judicial and administrative institutions with defined powers and functions in the comprehensive compact. A period of transition shall be established in a comprehensive peace compact specifying the relationship between the Central Government and the BJE. (Emphasis and underscoring supplied)

The nature of the "associative" relationship may have been intended to be defined more precisely in the still to be forged Comprehensive Compact. Nonetheless, given that there is a concept of "association" in international law, and the MOA-AD by its inclusion of international law instruments in its TOR placed itself in an international legal context, that concept of association may be brought to bear in understanding the use of the term "associative" in the MOA-AD.
cdrep

Keitner and Reisman state that

[a]n association is formed when two states of unequal power voluntarily establish durable links. In the basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a state. Free associations represent a middle ground between integration and independence. . . . 150 (Emphasis and underscoring supplied)

For purposes of illustration, the Republic of the Marshall Islands and the Federated States of Micronesia (FSM), formerly part of the U.S.-administered Trust Territory of the Pacific Islands, 151 are associated states of the U.S. pursuant to a Compact of Free Association.
The currency in these countries is the U.S. dollar, indicating their very close ties with the U.S., yet they issue their own travel documents, which is a mark of their statehood. Their international legal status as states was confirmed by the UN Security Council and by their admission to UN membership.

According to their compacts of free association, the Marshall Islands and the FSM generally have the capacity to conduct foreign affairs in their own name and right, such capacity extending to matters such as the law of the sea, marine resources, trade, banking, postal, civil aviation, and cultural relations. The U.S. government, when conducting its foreign affairs, is obligated to consult with the governments of the Marshall Islands or the FSM on matters which it (U.S. government) regards as relating to or affecting either government. In the event of attacks or threats against the Marshall Islands or the FSM, the U.S. government has the authority and obligation to defend them as if they were part of U.S. territory. The U.S. government, moreover, has the option of establishing and using military areas and facilities within these associated states and has the right to bar the military personnel of any third country from having access to these territories for military purposes. It bears noting that in U.S. constitutional and international practice, free association is understood as an international association between sovereigns. The Compact of Free Association is a treaty which is subordinate to the associated nation's national constitution, and each party may terminate the association consistent with the right of independence. It has been said that, with the admission of the U.S.-associated states to the UN in 1990, the UN recognized that the American model of free association is actually based on an underlying status of independence. 152
ACTISE

In international practice, the "associated state" arrangement has usually been used as a transitional device of former colonies on their way to full independence. Examples of states that have passed through the status of associated states as a transitional phase are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since become independent states. 153 Back to the MOA-AD, it contains many provisions which are consistent with the international legal concept of association, specifically the following: the BJE's capacity to enter into economic and trade relations with foreign countries, the commitment of the Central Government to ensure the BJE's participation in meetings and events in the ASEAN and the specialized UN agencies, and the continuing responsibility of the Central Government over external defense. Moreover, the BJE's right to participate in Philippine

official missions bearing on negotiation of border agreements, environmental protection, and sharing of revenues pertaining to the bodies of water adjacent to or between the islands forming part of the ancestral domain, resembles the right of the governments of FSM and the Marshall Islands to be consulted by the U.S. government on any foreign affairs matter affecting them. These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the status of an associated state or, at any rate, a status closely approximating it. The concept of association is not recognized under the present Constitution No province, city, or municipality, not even the ARMM, is recognized under our laws as having an "associative" relationship with the national government. Indeed, the concept implies powers that go beyond anything ever granted by the Constitution to any local or regional government. It also implies the recognition of the associated entity as a state. The Constitution, however, does not contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence.
caTIDE

Even the mere concept animating many of the MOA-AD's provisions, therefore, already requires for its validity the amendment of constitutional provisions, specifically the following provisions of Article X:
SEC. 1.The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided. SEC. 15.There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.

The BJE is a far more powerful entity than the autonomous region recognized in the Constitution It is not merely an expanded version of the ARMM, the status of its relationship with the national government being fundamentally different from that of the ARMM. Indeed, BJE

is a state in all but name as it meets the criteria of a state laid down in the Montevideo Convention, 154 namely, a permanent population, a defined territory, a
government, and a capacity to enter into relations with other states.
AEITDH

Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine territory, the spirit animating it which has betrayed itself by its use of the concept of association runs counter to the national sovereignty and territorial integrity of the Republic. The defining concept underlying the relationship between the national government and the BJE being itself contrary to the present Constitution, it is not surprising that many of the specific provisions of the MOA-AD on the formation and powers of the BJE are in conflict with the Constitution and the laws. Article X, Section 18 of the Constitution provides that "[t]he creation of the autonomous region shall be effective when approved by a majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region". (Emphasis supplied) As reflected above, the BJE is more of a state than an autonomous region. But even assuming that it is covered by the term "autonomous region" in the constitutional provision just quoted, the MOA-AD would still be in conflict with it. Under paragraph 2 (c) on TERRITORY in relation to 2 (d) and 2 (e), the present geographic area of the ARMM and, in addition, the municipalities of Lanao del Norte which voted for inclusion in the ARMM during the 2001 plebiscite Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal are automatically part of the BJE without need of another plebiscite, in contrast to the areas under Categories A and B mentioned earlier in the overview. That the present components of the ARMM and the above-mentioned municipalities voted for inclusion therein in 2001, however, does not render another plebiscite unnecessary under the Constitution, precisely because what these areas voted for then was their inclusion in the ARMM, not the BJE.
ScCIaA

The MOA-AD, moreover, would not comply with Article X, Section 20 of the Constitution since that provision defines the powers of autonomous regions as follows:
SEC. 20.Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over:

(1)Administrative organization; (2)Creation of sources of revenues; (3)Ancestral domain and natural resources; (4)Personal, family, and property relations; (5)Regional urban and rural planning development; (6)Economic, social, and tourism development; (7)Educational policies; (8)Preservation and development of the cultural heritage; and (9)Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region. (Underscoring supplied)

Again on the premise that the BJE may be regarded as an autonomous region, the MOAAD would require an amendment that would expand the above-quoted provision. The mere passage of new legislation pursuant to sub-paragraph No. 9 of said constitutional provision would not suffice, since any new law that might vest in the BJE the powers found in the MOA-AD must, itself, comply with other provisions of the Constitution. It would not do, for instance, to merely pass legislation vesting the BJE with treaty-making power in order to accommodate paragraph 4 of the strand on RESOURCES which states: "The BJE is free to enter into any economic cooperation and trade relations with foreign countries: provided, however, that such relationships and understandings do not include aggression against the Government of the Republic of the Philippines . . . ." Under our constitutional system, it is only the President who has that power. Pimentel v. Executive Secretary 155 instructs:
In our system of government, the President, being the head of state, is regarded as the sole organ and authority in external relations and is the country's sole representative with foreign nations. As the chief architect of foreign policy, the President acts as the country's mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations. In the realm of treaty-making, the President has the sole authority to negotiate with other states. (Emphasis and underscoring supplied)
CIHAED

Article II, Section 22 of the Constitution must also be amended if the scheme envisioned in the MOA-AD is to be effected. That constitutional provision states: "The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development." (Underscoring supplied) An associative arrangement does not uphold national unity. While there may be a semblance of unity because of the associative ties between the BJE and the national government, the act of placing a portion of Philippine territory in a status which, in international practice, has generally been a preparation for independence, is certainly not conducive to national unity. Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent with prevailing statutory law, among which are R.A. No. 9054 156 or the Organic |Act of the ARMM, and the IPRA. 157 Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the definition of "Bangsamoro people" used in the MOA-AD. Paragraph 1 on CONCEPTS AND PRINCIPLES states:
1.It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be accepted as "Bangsamoros". The Bangsamoro people refers to those who are natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization of its descendants whether mixed or of full blood. Spouses and their descendants are classified as Bangsamoro. The freedom of choice of the Indigenous people shall be respected. (Emphasis and underscoring supplied)
cHAaCE

This use of the term Bangsamoro sharply contrasts with that found in the Article X, Section 3 of the Organic Act, which, rather than lumping together the identities of the Bangsamoro and other indigenous peoples living in Mindanao, clearly distinguishes between Bangsamoro people and Tribal peoples, as follows:
"As used in this Organic Act, the phrase "indigenous cultural community" refers to Filipino citizens residing in the autonomous region who are: (a)Tribal peoples. These are citizens whose social, cultural and economic conditions distinguish them from other sectors of the national community; and (b)Bangsa Moro people. These are citizens who are believers in Islam and who have retained some or all of their own social, economic, cultural, and political institutions."

Respecting the IPRA, it lays down the prevailing procedure for the delineation and recognition of ancestral domains. The MOA-AD's manner of delineating the ancestral domain of the Bangsamoro people is a clear departure from that procedure. By paragraph 1 of TERRITORY, the Parties simply agree that, subject to the delimitations in the agreed Schedules, "[t]he Bangsamoro homeland and historic territory refer to the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain, the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region". Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as illustrated in the following provisions thereof:
SEC. 52.Delineation Process. The identification and delineation of ancestral domains shall be done in accordance with the following procedures: xxx xxx xxx b)Petition for Delineation. The process of delineating a specific perimeter may be initiated by the NCIP with the consent of the ICC/IP concerned, or through a Petition for Delineation filed with the NCIP, by a majority of the members of the ICCs/IPs;
CSaIAc

c)Delineation Proper. The official delineation of ancestral domain boundaries including census of all community members therein, shall be immediately undertaken by the Ancestral Domains Office upon filing of the application by the ICCs/IPs concerned. Delineation will be done in coordination with the community concerned and shall at all times include genuine involvement and participation by the members of the communities concerned; d)Proof Required. Proof of Ancestral Domain Claims shall include the testimony of elders or community under oath, and other documents directly or indirectly attesting to the possession or occupation of the area since time immemorial by such ICCs/IPs in the concept of owners which shall be any one (1) of the following authentic documents: 1)Written accounts of the ICCs/IPs customs and traditions; 2)Written accounts of the ICCs/IPs political structure and institution; 3)Pictures showing long term occupation such as those of old improvements, burial grounds, sacred places and old villages; 4)Historical accounts, including pacts and agreements concerning boundaries entered into by the ICCs/IPs concerned with other ICCs/IPs;
ISaCTE

5)Survey plans and sketch maps; 6)Anthropological data; 7)Genealogical surveys; 8)Pictures and descriptive histories of traditional communal forests and hunting grounds; 9)Pictures and descriptive histories of traditional landmarks such as mountains, rivers, creeks, ridges, hills, terraces and the like; and 10)Write-ups of names and places derived from the native dialect of the community. e)Preparation of Maps. On the basis of such investigation and the findings of fact based thereon, the Ancestral Domains Office of the NCIP shall prepare a perimeter map, complete with technical descriptions, and a description of the natural features and landmarks embraced therein; f)Report of Investigation and Other Documents. A complete copy of the preliminary census and a report of investigation, shall be prepared by the Ancestral Domains Office of the NCIP;

g)Notice and Publication. A copy of each document, including a translation in the native language of the ICCs/IPs concerned shall be posted in a prominent place therein for at least fifteen (15) days. A copy of the document shall also be posted at the local, provincial and regional offices of the NCIP, and shall be published in a newspaper of general circulation once a week for two (2) consecutive weeks to allow other claimants to file opposition thereto within fifteen (15) days from date of such publication: Provided, That in areas where no such newspaper exists, broadcasting in a radio station will be a valid substitute: Provided, further, That mere posting shall be deemed sufficient if both newspaper and radio station are not available;
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h)Endorsement to NCIP. Within fifteen (15) days from publication, and of the inspection process, the Ancestral Domains Office shall prepare a report to the NCIP endorsing a favorable action upon a claim that is deemed to have sufficient proof. However, if the proof is deemed insufficient, the Ancestral Domains Office shall require the submission of additional evidence: Provided, That the Ancestral Domains Office shall reject any claim that is deemed patently false or fraudulent after inspection and verification: Provided, further, That in case of rejection,

the Ancestral Domains Office shall give the applicant due notice, copy furnished all concerned, containing the grounds for denial. The denial shall be appealable to the NCIP: Provided, furthermore, That in cases where there are conflicting claims among ICCs/IPs on the boundaries of ancestral domain claims, the Ancestral Domains Office shall cause the contending parties to meet and assist them in coming up with a preliminary resolution of the conflict, without prejudice to its full adjudication according to the section below. xxx xxx xxx

To remove all doubts about the irreconcilability of the MOA-AD with the present legal system, a discussion of not only the Constitution and domestic statutes, but also of international law is in order, for Article II, Section 2 of the Constitution states that the Philippines "adopts the generally accepted principles of international law as part of the law of the land". Applying this provision of the Constitution, the Court, in Mejoff v. Director of Prisons, 158 held that the Universal Declaration of Human Rights is part of the law of the
land on account of which it ordered the release on bail of a detained alien of Russian descent whose deportation order had not been executed even after two years. Similarly, the Court in Agustin v. Edu 159 applied the aforesaid constitutional provision to the 1968 Vienna Convention on Road Signs and Signals.

International law has long recognized the right to self-determination of "peoples", understood not merely as the entire population of a State but also a portion thereof. In considering the question of whether the people of Quebec had a right to unilaterally secede from Canada, the Canadian Supreme Court in REFERENCE RE SECESSION OF QUEBEC 160 had occasion to acknowledge that "the right of a people to self-determination is
now so widely recognized in international conventions that the principle has acquired a status beyond 'convention' and is considered a general principle of international law".

Among the conventions referred to are the International Covenant on Civil and Political Rights 161 and the International Covenant on Economic, Social and Cultural Rights 162 which
state, in Article 1 of both covenants, that all peoples, by virtue of the right of self-determination, "freely determine their political status and freely pursue their economic, social, and cultural development".
DICSaH

The people's right to self-determination should not, however, be understood as extending to a unilateral right of secession. A distinction should be made between the right of internal and external self-determination. REFERENCE RE SECESSION OF QUEBEC is again instructive:

"(ii)Scope of the Right to Self-determination 126.The recognized sources of international law establish that the right to selfdetermination of a people is normally fulfilled through internal selfdetermination a people's pursuit of its political, economic, social and cultural development within the framework of an existing state. A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances . . . . External self-determination can be defined as in the following statement from the Declaration on Friendly Relations, supra, as The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people. (Emphasis added)
HDAaIS

127.The international law principle of self-determination has evolved within a framework of respect for the territorial integrity of existing states. The various international documents that support the existence of a people's right to self-determination also contain parallel statements supportive of the conclusion that the exercise of such a right must be sufficiently limited to prevent threats to an existing state's territorial integrity or the stability of relations between sovereign states. xxx xxx xxx (Emphasis, italics and underscoring supplied)

The Canadian Court went on to discuss the exceptional cases in which the right to external self-determination can arise, namely, where a people is under colonial rule, is subject to foreign domination or exploitation outside a colonial context, and less definitely but asserted by a number of commentators is blocked from the meaningful exercise of its right to internal self-determination. The Court ultimately held that the population of Quebec had no right to secession, as the same is not under colonial rule or foreign domination, nor is it being deprived of the freedom to make political choices and pursue economic, social and cultural development, citing that Quebec is equitably represented in legislative, executive and judicial institutions within Canada, even occupying prominent positions therein. The exceptional nature of the right of secession is further exemplified in the REPORT OF THE INTERNATIONAL COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF THE AALAND ISLANDS QUESTION. 163 There, Sweden presented to the Council of the
League of Nations the question of whether the inhabitants of the Aaland Islands should be authorized to determine by plebiscite if the archipelago should remain under Finnish sovereignty or be incorporated in the kingdom of Sweden. The Council, before resolving the question,

appointed an International Committee composed of three jurists to submit an opinion on the preliminary issue of whether the dispute should, based on international law, be entirely left to the domestic jurisdiction of Finland. The Committee stated the rule as follows: . . . [I]n the absence of express provisions in international treaties, the right of disposing of national territory is essentially an attribute of the sovereignty of every State. Positive International Law does not recognize the right of national groups, as such, to separate themselves from the State of which they form part by the simple expression of a wish, any more than it recognizes the right of other States to claim such a separation. Generally speaking, the grant or refusal of the right to a portion of its population of determining its own political fate by plebiscite or by some other method, is, exclusively, an attribute of the sovereignty of every State which is definitively constituted. A dispute between two States concerning such a question, under normal conditions therefore, bears upon a question which International Law leaves entirely to the domestic jurisdiction of one of the States concerned. Any other solution would amount to an infringement of sovereign rights of a State and would involve the risk of creating difficulties and a lack of stability which would not only be contrary to the very idea embodied in term "State", but would also endanger the interests of the international community. If this right is not possessed by a large or small section of a nation, neither can it be held by the State to which the national group wishes to be attached, nor by any other State. (Emphasis and underscoring supplied)
DHTCaI

The Committee held that the dispute concerning the Aaland Islands did not refer to a question which is left by international law to the domestic jurisdiction of Finland, thereby applying the exception rather than the rule elucidated above. Its ground for departing from the general rule, however, was a very narrow one, namely, the Aaland Islands agitation originated at a time when Finland was undergoing drastic political transformation. The internal situation of Finland was, according to the Committee, so abnormal that, for a considerable time, the conditions required for the formation of a sovereign State did not exist. In the midst of revolution, anarchy, and civil war, the legitimacy of the Finnish national government was disputed by a large section of the people, and it had, in fact, been chased from the capital and forcibly prevented from carrying out its duties. The armed camps and the police were divided into two opposing forces. In light of these circumstances, Finland was not, during the relevant time period, a "definitively constituted" sovereign state. The Committee, therefore, found that Finland did not possess the right to withhold from a portion of its population the option to separate itself a right which sovereign nations generally have with respect to their own populations.

Turning now to the more specific category of indigenous peoples, this term has been used, in scholarship as well as international, regional, and state practices, to refer to

groups with distinct cultures, histories, and connections to land (spiritual and otherwise) that have been forcibly incorporated into a larger governing society. These groups are regarded as "indigenous" since they are the living descendants of pre-invasion inhabitants of lands now dominated by others. Otherwise stated, indigenous peoples, nations, or communities are culturally distinctive groups that find themselves engulfed by settler societies born of the forces of empire and conquest. 164 Examples of groups who have been
regarded as indigenous peoples are the Maori of New Zealand and the aboriginal peoples of Canada.

As with the broader category of "peoples", indigenous peoples situated within states do not have a general right to independence or secession from those states under international law, 165 but they do have rights amounting to what was discussed above as the
right to internal self-determination.

In a historic development last September 13, 2007, the UN General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP) through General Assembly Resolution 61/295. The vote was 143 to 4, the Philippines being included among those in favor, and the four voting against being Australia, Canada, New Zealand, and the U.S. The Declaration clearly recognized the right of indigenous peoples to self-determination, encompassing the right to autonomy or self-government, to wit:
Article 3 Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
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Article 4 Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions. Article 5 Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.

Self-government, as used in international legal discourse pertaining to indigenous peoples, has been understood as equivalent to "internal self-determination". 166 The extent
of self-determination provided for in the UN DRIP is more particularly defined in its subsequent articles, some of which are quoted hereunder:

Article 8 1.Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture. 2.States shall provide effective mechanisms for prevention of, and redress for: (a)Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities; (b)Any action which has the aim or effect of dispossessing them of their lands, territories or resources; (c)Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights; (d)Any form of forced assimilation or integration; (e)Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them. Article 21 1.Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions, including, inter alia, in the areas of education, employment, vocational training and retraining, housing, sanitation, health and social security.
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2.States shall take effective measures and, where appropriate, special measures to ensure continuing improvement of their economic and social conditions. Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities. Article 26 1.Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. 2.Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

3.States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.
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Article 30 1.Military activities shall not take place in the lands or territories of indigenous peoples, unless justified by a relevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned. 2.States shall undertake effective consultations with the indigenous peoples concerned, through appropriate procedures and in particular through their representative institutions, prior to using their lands or territories for military activities. Article 32 1.Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources. 2.States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
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3.States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact. Article 37 1.Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other constructive arrangements. 2.Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous peoples contained in treaties, agreements and other constructive arrangements. Article 38

States in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.
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Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must now be regarded as embodying customary international law a question which the Court need not definitively resolve here the obligations enumerated therein do not strictly require the Republic to grant the Bangsamoro people, through the instrumentality of the BJE, the particular rights and powers provided for in the MOA-AD. Even the more specific provisions of the UN DRIP are general in scope, allowing for flexibility in its application by the different States. There is, for instance, no requirement in the UN DRIP that States now guarantee indigenous peoples their own police and internal security force. Indeed, Article 8 presupposes that it is the State which will provide protection for indigenous peoples against acts like the forced dispossession of their lands a function that is normally performed by police officers. If the protection of a right so essential to indigenous people's identity is acknowledged to be the responsibility of the State, then surely the protection of rights less significant to them as such peoples would also be the duty of States. Nor is there in the UN DRIP an acknowledgement of the right of indigenous peoples to the aerial domain and atmospheric space. What it upholds, in Article 26 thereof, is the right of indigenous peoples to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
IDTSEH

Moreover, the UN DRIP, while upholding the right of indigenous peoples to autonomy, does not obligate States to grant indigenous peoples the near-independent status of an associated state. All the rights recognized in that document are qualified in Article 46 as follows:
1.Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.

Even if the UN DRIP were considered as part of the law of the land pursuant to Article II, Section 2 of the Constitution, it would not suffice to uphold the validity of the MOA-AD so as to render its compliance with other laws unnecessary. It is, therefore, clear that the MOA-AD contains numerous provisions that cannot be reconciled with the Constitution and the laws as presently worded. Respondents proffer, however, that the signing of the MOA-AD alone would not have entailed any violation of law or grave abuse of discretion on their part, precisely because it stipulates

that the provisions thereof inconsistent with the laws shall not take effect until these laws are amended. They cite paragraph 7 of the MOA-AD strand on GOVERNANCE quoted earlier, but which is reproduced below for convenience:
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7.The Parties agree that the mechanisms and modalities for the actual implementation of this MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such steps to enable it to occur effectively. Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework with due regard to non derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact.

Indeed, the foregoing stipulation keeps many controversial provisions of the MOA-AD from coming into force until the necessary changes to the legal framework are effected. While the word "Constitution" is not mentioned in the provision now under consideration or anywhere else in the MOA-AD, the term "legal framework" is certainly broad enough to include the Constitution. Notwithstanding the suspensive clause, however, respondents, by their mere act of incorporating in the MOA-AD the provisions thereof regarding the associative relationship between the BJE and the Central Government, have already violated the Memorandum of Instructions From The President dated March 1, 2001, which states that the "negotiations shall be conducted in accordance with . . . the principles of the sovereignty and territorial integrity of the Republic of the Philippines". (Emphasis supplied) Establishing an associative relationship between the BJE and the Central Government is, for the reasons already discussed, a preparation for independence, or worse, an implicit acknowledgment of an independent status already prevailing.
HDAaIS

Even apart from the above-mentioned Memorandum, however, the MOA-AD is defective because the suspensive clause is invalid, as discussed below. The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is founded on E.O. No. 3, Section 5 (c), which states that there shall be established Government Peace Negotiating Panels for negotiations with different rebel groups to be "appointed by the President as her official emissaries to conduct negotiations, dialogues, and face-toface discussions with rebel groups". These negotiating panels are to report to the President, through the PAPP on the conduct and progress of the negotiations. It bears noting that the GRP Peace Panel, in exploring lasting solutions to the Moro Problem through its negotiations with the MILF, was not restricted by E.O. No. 3 only to those options available under the laws as they presently stand. One of the components of

a comprehensive peace process, which E.O. No. 3 collectively refers to as the "Paths to Peace", is the pursuit of social, economic, and political reforms which may require new legislation or even constitutional amendments. Sec. 4 (a) of E.O. No. 3, which reiterates Section 3 (a), of E.O. No. 125, 167 states:
HSEcTC

SEC. 4.The Six Paths to Peace. The components of the comprehensive peace process comprise the processes known as the "Paths to Peace". These component processes are interrelated and not mutually exclusive, and must therefore be pursued simultaneously in a coordinated and integrated fashion. They shall include, but may not be limited to, the following: a.PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component involves the vigorous implementation of various policies, reforms, programs and projects aimed at addressing the root causes of internal armed conflicts and social unrest. This may require administrative action, new legislation or even constitutional amendments. xxx xxx xxx (Emphasis supplied)

The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents to address, pursuant to this provision of E.O. No. 3, the root causes of the armed conflict in Mindanao. The E.O. authorized them to "think outside the box", so to speak. Hence, they negotiated and were set on signing the MOA-AD that included various social, economic, and political reforms which cannot, however, all be accommodated within the present legal framework, and which thus would require new legislation and constitutional amendments. The inquiry on the legality of the "suspensive clause", however, cannot stop here, because it must be asked
AIcaDC

whether the President herself may exercise the power delegated to the GRP Peace Panel under E.O. No. 3, Sec. 4 (a). The President cannot delegate a power that she herself does not possess. May the President, in the course of peace negotiations, agree to pursue reforms that would require new legislation and constitutional amendments, or should the reforms be restricted only to those solutions which the present laws allow? The answer to this question requires a discussion of
HIEAcC

the extent of the President's power to conduct peace negotiations.

That the authority of the President to conduct peace negotiations with rebel groups is not explicitly mentioned in the Constitution does not mean that she has no such authority. In Sanlakas v. Executive Secretary, 168 in issue was the authority of the President to declare a
state of rebellion an authority which is not expressly provided for in the Constitution. The Court held thus: "In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into jurisprudence. There, the Court, by a slim 8-7 margin, upheld the President's power to forbid the return of her exiled predecessor. The rationale for the majority's ruling rested on the President's . . . unstated residual powers which are implied from the grant of executive power and which are necessary for her to comply with her duties under the Constitution. The powers of the President are not limited to what are expressly enumerated in the article on the Executive Department and in scattered provisions of the Constitution. This is so, notwithstanding the avowed intent of the members of the Constitutional Commission of 1986 to limit the powers of the President as a reaction to the abuses under the regime of Mr. Marcos, for the result was a limitation of specific powers of the President, particularly those relating to the commander-in-chief clause, but not a diminution of the general grant of executive power.
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Thus, the President's authority to declare a state of rebellion springs in the main from her powers as chief executive and, at the same time, draws strength from her Commander-in-Chief powers. . . . (Emphasis and underscoring supplied)

Similarly, the President's power to conduct peace negotiations is implicitly included in her powers as Chief Executive and Commander-in-Chief. As Chief Executive, the President has the general responsibility to promote public peace, and as Commander-inChief, she has the more specific duty to prevent and suppress rebellion and lawless violence. 169 As the experience of nations which have similarly gone through internal armed conflict will show, however, peace is rarely attained by simply pursuing a military solution. Oftentimes, changes as far-reaching as a fundamental reconfiguration of the nation's constitutional structure is required. The observations of Dr. Kirsti Samuels are enlightening, to wit:
. . . [T]he fact remains that a successful political and governance transition must form the core of any post-conflict peace-building mission. As we have observed in Liberia and Haiti over the last ten years, conflict cessation without modification of the political environment, even where state-building is undertaken through technical electoral assistance and institution- or capacity-

building, is unlikely to succeed. On average, more than 50 percent of states emerging from conflict return to conflict. Moreover, a substantial proportion of transitions have resulted in weak or limited democracies. The design of a constitution and its constitution-making process can play an important role in the political and governance transition. Constitution-making after conflict is an opportunity to create a common vision of the future of a state and a road map on how to get there. The constitution can be partly a peace agreement and partly a framework setting up the rules by which the new democracy will operate. 170

In the same vein, Professor Christine Bell, in her article on the nature and legal status of peace agreements, observed that the typical way that peace agreements establish or confirm mechanisms for demilitarization and demobilization is by linking them to new constitutional structures addressing governance, elections, and legal and human rights institutions. 171 In the Philippine experience, the link between peace agreements and constitution-making has been recognized by no less than the framers of the Constitution. Behind the provisions of the Constitution on autonomous regions 172 is the framers' intention to
implement a particular peace agreement, namely, the Tripoli Agreement of 1976 between the GRP and the MNLF, signed by then Undersecretary of National Defense Carmelo Z. Barbero and then MNLF Chairman Nur Misuari.
aTIEcA

MR. ROMULO. There are other speakers; so, although I have some more questions, I will reserve my right to ask them if they are not covered by the other speakers. I have only two questions. I heard one of the Commissioners say that local autonomy already exists in the Muslim region; it is working very well; it has, in fact, diminished a great deal of the problems. So, my question is: since that already exists, why do we have to go into something new? MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup Abubakar is right that certain definite steps have been taken to implement the provisions of the Tripoli Agreement with respect to an autonomous region in Mindanao. This is a good first step, but there is no question that this is merely a partial response to the Tripoli Agreement itself and to the fuller standard of regional autonomy contemplated in that agreement, and now by state policy. 173 (Emphasis supplied)

The constitutional provisions on autonomy and the statutes enacted pursuant to them have, to the credit of their drafters, been partly successful. Nonetheless, the Filipino people are still faced with the reality of an on-going conflict between the Government and the MILF. If the President is to be expected to find means for bringing this conflict to an end and to achieve lasting peace in Mindanao, then she must be given the leeway to explore, in the course of peace negotiations, solutions that may require changes to the Constitution for their implementation. Being uniquely vested with the power to conduct peace negotiations with rebel groups, the President is in a singular position to know the precise nature of their grievances which, if resolved, may bring an end to hostilities.
DAaIEc

The President may not, of course, unilaterally implement the solutions that she considers viable, but she may not be prevented from submitting them as recommendations to Congress, which could then, if it is minded, act upon them pursuant to the legal procedures for constitutional amendment and revision. In particular, Congress would have the option, pursuant to Article XVII, Sections 1 and 3 of the Constitution, to propose the recommended amendments or revision to the people, call a constitutional convention, or submit to the electorate the question of calling such a convention. While the President does not possess constituent powers as those powers may be exercised only by Congress, a Constitutional Convention, or the people through initiative and referendum she may submit proposals for constitutional change to Congress in a manner that does not involve the arrogation of constituent powers. In Sanidad v. COMELEC, 174 in issue was the legality of then President Marcos' act of
directly submitting proposals for constitutional amendments to a referendum, bypassing the interim National Assembly which was the body vested by the 1973 Constitution with the power to propose such amendments. President Marcos, it will be recalled, never convened the interim National Assembly. The majority upheld the President's act, holding that "the urges of absolute necessity" compelled the President as the agent of the people to act as he did, there being no interim National Assembly to propose constitutional amendments. Against this ruling, Justices Teehankee and Muoz Palma vigorously dissented. The Court's concern at present, however, is not with regard to the point on which it was then divided in that controversial case, but on that which was not disputed by either side.

Justice Teehankee's dissent, 175 in particular, bears noting. While he disagreed that the
President may directly submit proposed constitutional amendments to a referendum, implicit in his opinion is a recognition that he would have upheld the President's action along with the majority had the President convened the interim National Assembly and coursed his proposals through it. Thus Justice Teehankee opined: "Since the Constitution provides for the organization of the essential departments of government, defines and delimits the powers of each and prescribes the manner of the exercise of such powers, and the constituent power

has not been granted to but has been withheld from the President or Prime Minister, it follows that the President's questioned decrees proposing and submitting constitutional amendments directly to the people (without the intervention of the interim National Assembly in whom the power is expressly vested) are devoid of constitutional and legal basis." 176 (Emphasis supplied)

From the foregoing discussion, the principle may be inferred that the President in the course of conducting peace negotiations may validly consider implementing even those policies that require changes to the Constitution, but she may not unilaterally implement them without the intervention of Congress, or act in any way as if the assent of that body were assumed as a certainty.
TEAaDC

Since, under the present Constitution, the people also have the power to directly propose amendments through initiative and referendum, the President may also submit her recommendations to the people, not as a formal proposal to be voted on in a plebiscite similar to what President Marcos did in Sanidad, but for their independent consideration of whether these recommendations merit being formally proposed through initiative. These recommendations, however, may amount to nothing more than the President's suggestions to the people, for any further involvement in the process of initiative by the Chief Executive may vitiate its character as a genuine "people's initiative". The only initiative recognized by the Constitution is that which truly proceeds from the people. As the Court stated in Lambino v. COMELEC: 177
"The Lambino Group claims that their initiative is the 'people's voice'. However, the Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the verification of their petition with the COMELEC, that 'ULAP maintains its unqualified support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms'. The Lambino Group thus admits that their 'people's' initiative is an 'unqualified support to the agenda' of the incumbent President to change the Constitution. This forewarns the Court to be wary of incantations of 'people's voice' or 'sovereign will' in the present initiative."
SEcITC

It will be observed that the President has authority, as stated in her oath of office, 178 only
to preserve and defend the Constitution. Such presidential power does not, however, extend to allowing her to change the Constitution, but simply to recommend proposed amendments or revision. As long as she limits herself to recommending these changes and submits to the proper procedure for constitutional amendments and revision, her mere recommendation need not be construed as an unconstitutional act.

The foregoing discussion focused on the President's authority to propose constitutional amendments, since her authority to propose new legislation is not in controversy. It has been an accepted practice for Presidents in this jurisdiction to propose new legislation.

One of the more prominent instances the practice is usually done is in the yearly State of the Nation Address of the President to Congress. Moreover, the annual general appropriations bill has always been based on the budget prepared by the President, which for all intents and purposes is a proposal for new legislation coming from the President. 179 The "suspensive clause" in the MOA-AD viewed in light of the above-discussed standards Given the limited nature of the President's authority to propose constitutional amendments, she cannot guarantee to any third party that the required amendments will eventually be put in place, nor even be submitted to a plebiscite. The most she could do is submit these proposals as recommendations either to Congress or the people, in whom constituent powers are vested. Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof which cannot be reconciled with the present Constitution and laws "shall come into force upon signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework". This stipulation does not bear the marks of a suspensive condition defined in civil law as a future and uncertain event but of a term. It is not a question of whether the necessary changes to the legal framework will be effected, but when. That there is no uncertainty being contemplated is plain from what follows, for the paragraph goes on to state that the contemplated changes shall be "with due regard to non derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact". Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the changes to the legal framework contemplated in the MOA-AD which changes would include constitutional amendments, as discussed earlier. It bears noting that,
TSHcIa

By the time these changes are put in place, the MOA-AD itself would be counted among the "prior agreements" from which there could be no derogation. What remains for discussion in the Comprehensive Compact would merely be the implementing details for these "consensus points" and, notably, the deadline for effecting the contemplated changes to the legal framework. Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the President's authority to propose constitutional amendments, it being a virtual

guarantee that the Constitution and the laws of the Republic of the Philippines will certainly be adjusted to conform to all the "consensus points" found in the MOA-AD. Hence, it must be struck down as unconstitutional. A comparison between the "suspensive clause" of the MOA-AD with a similar provision appearing in the 1996 final peace agreement between the MNLF and the GRP is most instructive. As a backdrop, the parties to the 1996 Agreement stipulated that it would be implemented in two phases. Phase I covered a three-year transitional period involving the putting up of new administrative structures through Executive Order, such as the Special Zone of Peace and Development (SZOPAD) and the Southern Philippines Council for Peace and Development (SPCPD), while Phase II covered the establishment of the new regional autonomous government through amendment or repeal of R.A. No. 6734, which was then the Organic Act of the ARMM. The stipulations on Phase II consisted of specific agreements on the structure of the expanded autonomous region envisioned by the parties. To that extent, they are similar to the provisions of the MOA-AD. There is, however, a crucial difference between the two agreements. While the MOA-AD virtually guarantees that the "necessary changes to the legal framework" will be put in place, the GRP-MNLF final peace agreement states thus: "Accordingly, these provisions [on Phase II] shall be recommended by the GRP to Congress for incorporation in the amendatory or repealing law".
cHECAS

Concerns have been raised that the MOA-AD would have given rise to a binding international law obligation on the part of the Philippines to change its Constitution in conformity thereto, on the ground that it may be considered either as a binding agreement under international law, or a unilateral declaration of the Philippine government to the international community that it would grant to the Bangsamoro people all the concessions therein stated. Neither ground finds sufficient support in international law, however. The MOA-AD, as earlier mentioned in the overview thereof, would have included foreign dignitaries as signatories. In addition, representatives of other nations were invited to witness its signing in Kuala Lumpur. These circumstances readily lead one to surmise that the MOA-AD would have had the status of a binding international agreement had it been signed. An examination of the prevailing principles in international law, however, leads to the contrary conclusion.

The Decision on CHALLENGE TO JURISDICTION: LOM ACCORD AMNESTY 180

(the Lom Accord case) of the Special Court of Sierra Leone is enlightening. The Lom Accord was a peace agreement signed on July 7, 1999 between the Government of Sierra Leone and the Revolutionary United Front (RUF), a rebel group with which the Sierra Leone Government had

been in armed conflict for around eight years at the time of signing. There were non-contracting signatories to the agreement, among which were the Government of the Togolese Republic, the Economic Community of West African States, and the UN.

On January 16, 2002, after a successful negotiation between the UN Secretary-General and the Sierra Leone Government, another agreement was entered into by the UN and that Government whereby the Special Court of Sierra Leone was established. The sole purpose of the Special Court, an international court, was to try persons who bore the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since November 30, 1996.
AETcSa

Among the stipulations of the Lom Accord was a provision for the full pardon of the members of the RUF with respect to anything done by them in pursuit of their objectives as members of that organization since the conflict began. In the Lom Accord case, the Defence argued that the Accord created an internationally binding obligation not to prosecute the beneficiaries of the amnesty provided therein, citing, among other things, the participation of foreign dignitaries and international organizations in the finalization of that agreement. The Special Court, however, rejected this argument, ruling that the Lome Accord is not a treaty and that it can only create binding obligations and rights between the parties in municipal law, not in international law. Hence, the Special Court held, it is ineffective in depriving an international court like it of jurisdiction.
"37.In regard to the nature of a negotiated settlement of an internal armed conflict it is easy to assume and to argue with some degree of plausibility, as Defence counsel for the defendants seem to have done, that the mere fact that in addition to the parties to the conflict, the document formalizing the settlement is signed by foreign heads of state or their representatives and representatives of international organizations, means the agreement of the parties is internationalized so as to create obligations in international law.
cHITCS

xxx xxx xxx 40.Almost every conflict resolution will involve the parties to the conflict and the mediator or facilitator of the settlement, or persons or bodies under whose auspices the settlement took place but who are not at all parties to the conflict, are not contracting parties and who do not claim any obligation from the contracting parties or incur any obligation from the settlement. 41.In this case, the parties to the conflict are the lawful authority of the State and the RUF which has no status of statehood and is to all intents and purposes a faction within the state. The non-contracting

signatories of the Lom Agreement were moral guarantors of the principle that, in the terms of Article XXXIV of the Agreement, "this peace agreement is implemented with integrity and in good faith by both parties". The moral guarantors assumed no legal obligation. It is recalled that the UN by its representative appended, presumably for avoidance of doubt, an understanding of the extent of the agreement to be implemented as not including certain international crimes. 42.An international agreement in the nature of a treaty must create rights and obligations regulated by international law so that a breach of its terms will be a breach determined under international law which will also provide principle means of enforcement. The Lom Agreement created neither rights nor obligations capable of being regulated by international law. An agreement such as the Lom Agreement which brings to an end an internal armed conflict no doubt creates a factual situation of restoration of peace that the international community acting through the Security Council may take note of. That, however, will not convert it to an international agreement which creates an obligation enforceable in international, as distinguished from municipal, law.A breach of the terms of such a peace agreement resulting in resumption of internal armed conflict or creating a threat to peace in the determination of the Security Council may indicate a reversal of the factual situation of peace to be visited with possible legal consequences arising from the new situation of conflict created. Such consequences such as action by the Security Council pursuant to Chapter VII arise from the situation and not from the agreement, nor from the obligation imposed by it. Such action cannot be regarded as a remedy for the breach. A peace agreement which settles an internal armed conflict cannot be ascribed the same status as one which settles an international armed conflict which, essentially, must be between two or more warring States. The Lom Agreement cannot be characterised as an international instrument. . . ." (Emphasis, italics and underscoring supplied)
AHSaTI

Similarly, that the MOA-AD would have been signed by representatives of States and international organizations not parties to the Agreement would not have sufficed to vest in it a binding character under international law. In another vein, concern has been raised that the MOA-AD would amount to a unilateral declaration of the Philippine State, binding under international law, that it would comply with all the stipulations stated therein, with the result that it would have to amend its Constitution accordingly regardless of the true will of the people. Cited as authority for this view is Australia v. France, 181 also known as the Nuclear Tests Case, decided by the
International Court of Justice (ICJ).
EcIaTA

In the Nuclear Tests Case, Australia challenged before the ICJ the legality of France's nuclear tests in the South Pacific. France refused to appear in the case, but public statements from its President, and similar statements from other French officials including its Minister of Defence, that its 1974 series of atmospheric tests would be its last, persuaded the ICJ to dismiss the case. 182 Those statements, the ICJ held, amounted to a
legal undertaking addressed to the international community, which required no acceptance from other States for it to become effective.

Essential to the ICJ ruling is its finding that the French government intended to be bound to the international community in issuing its public statements, viz.:
43.It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding. In these circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction from other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement by the State was made. 44.Of course, not all unilateral acts imply obligation; but a State may choose to take up a certain position in relation to a particular matter with the intention of being bound the intention is to be ascertained by interpretation of the act. When States make statements by which their freedom of action is to be limited, a restrictive interpretation is called for.
cCSTHA

xxx xxx xxx 51.In announcing that the 1974 series of atmospheric tests would be the last, the French Government conveyed to the world at large, including the Applicant, its intention effectively to terminate these tests. It was bound to assume that other States might take note of these statements and rely on their being effective. The validity of these statements and their legal consequences must be considered within the general framework of the security of international intercourse, and the confidence and trust which are so essential in the relations among States. It is from the actual substance of these

statements, and from the circumstances attending their making, that the legal implications of the unilateral act must be deduced. The objects of these statements are clear and they were addressed to the international community as a whole, and the Court holds that they constitute an undertaking possessing legal effect. The Court considers *270 that the President of the Republic, in deciding upon the effective cessation of atmospheric tests, gave an undertaking to the international community to which his words were addressed. . . . (Emphasis and underscoring supplied)

As gathered from the above-quoted ruling of the ICJ, public statements of a state representative may be construed as a unilateral declaration only when the following conditions are present: the statements were clearly addressed to the international community, the state intended to be bound to that community by its statements, and that not to give legal effect to those statements would be detrimental to the security of international intercourse. Plainly, unilateral declarations arise only in peculiar circumstances. The limited applicability of the Nuclear Tests Case ruling was recognized in a later case decided by the ICJ entitled Burkina Faso v. Mali, 183 also known as the Case Concerning
the Frontier Dispute. The public declaration subject of that case was a statement made by the President of Mali, in an interview by a foreign press agency, that Mali would abide by the decision to be issued by a commission of the Organization of African Unity on a frontier dispute then pending between Mali and Burkina Faso.
CaASIc

Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's President was not a unilateral act with legal implications. It clarified that its ruling in the Nuclear Tests case rested on the peculiar circumstances surrounding the French declaration subject thereof, to wit:
40.In order to assess the intentions of the author of a unilateral act, account must be taken of all the factual circumstances in which the act occurred. For example, in the Nuclear Tests cases, the Court took the view that since the applicant States were not the only ones concerned at the possible continuance of atmospheric testing by the French Government, that Government's unilateral declarations had 'conveyed to the world at large, including the Applicant, its intention effectively to terminate these tests' (I.C.J. Reports 1974, p. 269, para. 51; p. 474, para. 53). In the particular circumstances of those cases, the French Government could not express an intention to be bound otherwise than by unilateral declarations. It is difficult to see how it could have accepted the terms of a negotiated solution with each of the applicants without thereby jeopardizing its contention that its conduct was lawful. The circumstances of the

present case are radically different. Here, there was nothing to hinder the Parties from manifesting an intention to accept the binding character of the conclusions of the Organization of African Unity Mediation Commission by the normal method: a formal agreement on the basis of reciprocity. Since no agreement of this kind was concluded between the Parties, the Chamber finds that there are no grounds to interpret the declaration made by Mali's head of State on 11 April 1975 as a unilateral act with legal implications in regard to the present case. (Emphasis and underscoring supplied)

Assessing the MOA-AD in light of the above criteria, it would not have amounted to a unilateral declaration on the part of the Philippine State to the international community. The Philippine panel did not draft the same with the clear intention of being bound thereby to the international community as a whole or to any State, but only to the MILF. While there were States and international organizations involved, one way or another, in the negotiation and projected signing of the MOA-AD, they participated merely as witnesses or, in the case of Malaysia, as facilitator. As held in the Lom Accord case, the mere fact that in addition to the parties to the conflict, the peace settlement is signed by representatives of states and international organizations does not mean that the agreement is internationalized so as to create obligations in international law.
HaAIES

Since the commitments in the MOA-AD were not addressed to States, not to give legal effect to such commitments would not be detrimental to the security of international intercourse to the trust and confidence essential in the relations among States. In one important respect, the circumstances surrounding the MOA-AD are closer to that of Burkina Faso wherein, as already discussed, the Mali President's statement was not held to be a binding unilateral declaration by the ICJ. As in that case, there was also nothing to hinder the Philippine panel, had it really been its intention to be bound to other States, to manifest that intention by formal agreement. Here, that formal agreement would have come about by the inclusion in the MOA-AD of a clear commitment to be legally bound to the international community, not just the MILF, and by an equally clear indication that the signatures of the participating states-representatives would constitute an acceptance of that commitment. Entering into such a formal agreement would not have resulted in a loss of face for the Philippine government before the international community, which was one of the difficulties that prevented the French Government from entering into a formal agreement with other countries. That the Philippine panel did not enter into such a formal agreement suggests that it had no intention to be bound to the international community. On that ground, the MOA-AD may not be considered a unilateral declaration under international law. The MOA-AD not being a document that can bind the Philippines under international law notwithstanding, respondents' almost consummated act of guaranteeing amendments to the legal framework is, by itself, sufficient to constitute grave abuse of discretion.

The grave abuse lies not in the fact that they considered, as a solution to the Moro Problem, the creation of a state within a state, but in their brazen willingness to guarantee that Congress and the sovereign Filipino people would give their imprimatur to their solution. Upholding such an act would amount to authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is through an undue influence or interference with that process.
aTIAES

The sovereign people may, if it so desired, go to the extent of giving up a portion of its own territory to the Moros for the sake of peace, for it can change the Constitution in any it wants, so long as the change is not inconsistent with what, in international law, is known as Jus Cogens. 184 Respondents, however, may not preempt it in that decision. SUMMARY The petitions are ripe for adjudication. The failure of respondents to consult the local government units or communities affected constitutes a departure by respondents from their mandate under E.O. No. 3. Moreover, respondents exceeded their authority by the mere act of guaranteeing amendments to the Constitution. Any alleged violation of the Constitution by any branch of government is a proper matter for judicial review. As the petitions involve constitutional issues which are of paramount public interest or of transcendental importance, the Court grants the petitioners, petitioners-in-intervention and intervening respondents the requisite locus standi in keeping with the liberal stance adopted in David v. Macapagal-Arroyo. Contrary to the assertion of respondents that the non-signing of the MOA-AD and the eventual dissolution of the GRP Peace Panel mooted the present petitions, the Court finds that the present petitions provide an exception to the "moot and academic" principle in view of (a) the grave violation of the Constitution involved; (b) the exceptional character of the situation and paramount public interest; (c) the need to formulate controlling principles to guide the bench, the bar, and the public; and (d) the fact that the case is capable of repetition yet evading review.
EDcICT

The MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli Agreement on Peace signed by the government and the MILF back in June 2001. Hence, the present MOA-AD can be renegotiated or another one drawn up that could contain similar or significantly dissimilar provisions compared to the original. The Court, however, finds that the prayers for mandamus have been rendered moot in view of the respondents' action in providing the Court and the petitioners with the official copy of the final draft of the MOA-AD and its annexes.

The people's right to information on matters of public concern under Sec. 7, Article III of the Constitution is in splendid symmetry with the state policy of full public disclosure of all its transactions involving public interest under Sec. 28, Article II of the Constitution. The right to information guarantees the right of the people to demand information, while Section 28 recognizes the duty of officialdom to give information even if nobody demands. The complete and effective exercise of the right to information necessitates that its complementary provision on public disclosure derive the same self-executory nature, subject only to reasonable safeguards or limitations as may be provided by law.
HcaATE

The contents of the MOA-AD is a matter of paramount public concern involving public interest in the highest order. In declaring that the right to information contemplates steps and negotiations leading to the consummation of the contract, jurisprudence finds no distinction as to the executory nature or commercial character of the agreement. An essential element of these twin freedoms is to keep a continuing dialogue or process of communication between the government and the people. Corollary to these twin rights is the design for feedback mechanisms. The right to public consultation was envisioned to be a species of these public rights. At least three pertinent laws animate these constitutional imperatives and justify the exercise of the people's right to be consulted on relevant matters relating to the peace agenda. One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both national and local levels and for a principal forum for consensus-building. In fact, it is the duty of the Presidential Adviser on the Peace Process to conduct regular dialogues to seek relevant information, comments, advice, and recommendations from peace partners and concerned sectors of society.
AIHECa

Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to conduct consultations before any project or program critical to the environment and human ecology including those that may call for the eviction of a particular group of people residing in such locality, is implemented therein. The MOA-AD is one peculiar program that unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro people, which could pervasively and drastically result to the diaspora or displacement of a great number of inhabitants from their total environment. Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-cut procedure for the recognition and delineation of ancestral domain, which entails, among other things, the observance of the free and prior informed consent of the Indigenous Cultural Communities/Indigenous Peoples. Notably, the statute does not grant the Executive Department or any government agency the power to delineate and recognize an ancestral domain claim by mere agreement or compromise.

The invocation of the doctrine of executive privilege as a defense to the general right to information or the specific right to consultation is untenable. The various explicit legal provisions fly in the face of executive secrecy. In any event, respondents effectively waived such defense after it unconditionally disclosed the official copies of the final draft of the MOA-AD, for judicial compliance and public scrutiny.
ISCDEA

IN SUM, the Presidential Adviser on the Peace Process committed grave abuse of discretion when he failed to carry out the pertinent consultation process, as mandated by E.O. No. 3, Republic Act No. 7160, and Republic Act No. 8371. The furtive process by which the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof. It illustrates a gross evasion of positive duty and a virtual refusal to perform the duty enjoined. The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept underlying them, namely, the associative relationship envisioned between the GRP and the BJE, are unconstitutional, for the concept presupposes that the associated entity is a state and implies that the same is on its way to independence. While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the present legal framework will not be effective until that framework is amended, the same does not cure its defect. The inclusion of provisions in the MOA-AD establishing an associative relationship between the BJE and the Central Government is, itself, a violation of the Memorandum of Instructions From The President dated March 1, 2001, addressed to the government peace panel. Moreover, as the clause is worded, it virtually guarantees that the necessary amendments to the Constitution and the laws will eventually be put in place. Neither the GRP Peace Panel nor the President herself is authorized to make such a guarantee. Upholding such an act would amount to authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is through an undue influence or interference with that process.
ScaEIT

While the MOA-AD would not amount to an international agreement or unilateral declaration binding on the Philippines under international law, respondents' act of guaranteeing amendments is, by itself, already a constitutional violation that renders the MOA-AD fatally defective. WHEREFORE, respondents' motion to dismiss is DENIED. The main and intervening petitions are GIVEN DUE COURSE and hereby GRANTED.

The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 is declared CONTRARY TO LAW AND THE CONSTITUTION.
DTcASE

SO ORDERED.

EN BANC
[G.R. No. L-49112. February 2, 1979.] LEOVILLO C. AGUSTIN, petitioner, vs. HON. ROMEO F. EDU, in his capacity as Land Transportation Commissioner; HON. JUAN PONCE ENRILE, in his capacity as Minister of National Defense; HON. ALFREDO L. JUINIO, in his capacity as Minister of Public Works, Transportation and Communications; and HON: BALTAZAR AQUINO, in his capacity as Minister of Public Highways, respondents. Leovillo C. Agustin Law Office for petitioner. Solicitor General Estelito P. Mendoza, Assistant Solicitor General Ruben E. Agpalo and Solicitor Amado D. Aquino for respondents. SYNOPSIS Letter of Instruction No. 229 (1974) as amended by Letter of Instruction No. 479 (1976) required every motor vehicle owner to procure and use one pair of a reflectorized triangular early warning device whenever any vehicle is stalled or disabled or is parked for thirty (30) minutes or more on any street, or highway, including expressways or limited access roads. The implementing rules and regulations prepared by the respondent Land Transportation Commissioner on December 10, 1976 were not enforced as President Marcos, on January 25, 1977, ordered a six-month period of suspension insofar as the installation of early warning device (EWD) as a pre-registration requirement for motor vehicles was concerned. Letter of Instruction No. 716, issued on June 30, 1978 lifted such suspension and in pursuance thereof, the rules and regulations prepared by respondent Commission were approved for immediate implementation by respondent Minister of Public Works and Communication. Petitioner came to court alleging that Letter of Instruction 229, as amended, clearly violates the provisions of the New Constitution on due process, equal protection and delegation of police power. That it is oppressive, unreasonable, arbitrary, confiscatory and contrary to the precepts of our compassionate New Society. The respondents' Answer demonstrated that the assailed Letter of Instruction was a valid exercise of the police power; that the implementing rules and regulations of respondent Land Transportation Commissioner do not constitute unlawful delegation of legislative power and that the hazards posed by such obstructions to traffic have been recognized by international bodies concerned with traffic safety, the 1968 Vienna Convention on Road Signs and

Signals of which Philippines was a signatory and which was duly ratified and the United Nations Organization. The Court dismissed the petition for prohibition ruling that the Letter of Instruction in question was issued in the exercise of the State's police power intended to promote public safety; that there has been no undue delegation of legislative power as a standard has been set; and that the country cannot repudiate its commitment to international bodies and the accepted principles of international law. SYLLABUS 1.CONSTITUTIONAL LAW; POLICE POWER OF THE STATE; ENACTMENT OF LEGISLATION TO PROMOTE GENERAL WELFARE; JURISPRUDENCE. The broad and expansive scope of the police power, which was originally identified by Chief Justice Taney of the American Supreme Court in an 1847 decision, as "nothing more or less than the powers of government inherent in every sovereignty" was stressed in the case of Edu v. Ericta, (L-32096, Oct. 24, 1970), thus: "Justice Laurel, in the first leading decision after the Constitution came into force, Calalang v. Williams, (70 Phil. 720) [1940] identified police power with the state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare. Persons and property could thus 'be subjected to all kinds of restraints and burdens in order to secure the general comfort, health and prosperity of the state.' Shortly after independence in 1948, Primicias v. Fugoso (80 Phil. 71) reiterated the doctrine, such a competence being referred to as 'the power to prescribe regulations to promote the health, morals, peace, education, good order or safety, and general welfare of the people.' The concept was set forth in negative terms by Justice Malcolm in a pre-Commonwealth decision as 'that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety and welfare of society.' In the sense it could be hardly distinguishable as noted in Morfe v. Mutuc (L-20387 Jan. 31, 1969) with the totality of legislative power. It is in the above sense the greatest and most powerful attribute of government. It is, to quote Justice Malcolm, 'the most essential, insistent, and at least illimitable powers,' extending as Justice Holmes, aptly pointed out 'to all the great public needs.' Its scope, over-expanding to meet the exigencies of the times, even to anticipate the future where it could be done, provides enough room for an efficient and flexible response to conditions and circumstances thus assuring the greatest benefits. In the language of Justice Cardozo: 'Needs that were narrow or parochial in the past may be interwoven in the present with the well-being of the nation. What is critical or urgent changes with the time.' The police power is thus a dynamic agency, suitably vague and far from precisely defined, rooted in the conception that men in organizing the state and imposing upon its government limitations to safeguard constitutional rights did not intend thereby to enable an individual citizen or a group of citizens to obstruct unreasonably the

enactments of such salutary measures calculated to insure communal peace, safety, good order, and welfare.'" 2.ID.; ID.; ID.; LETTER OF INSTRUCTION NO. 229; INTENDED TO PROMOTE PUBLIC SAFETY. Letter of Instruction 229 is a police measure clearly intended to promote public safety. It would be rare occurrence for the Court to invalidate a legislative or executive act of that character. The latest decision in point, Edu v. Ericta, sustained the validity of the Reflector Law, R.A. No. 5715 (1969), an enactment conceived with the same end in view. Calalang v. Williams found nothing objectionable in a statute, the purpose of which was: "To promote safe transit upon, and avoid obstruction on roads and streets designated as national roads . . . ." 3.ID.; ID.; ID.; ID.; ISSUED AFTER CAREFUL STUDY BY THE EXECUTIVE DEPARTMENT. The issuance of Letter of Instruction No. 229 is encased in the armor of prior, careful study by the Executive Department. The President had in his possession the necessary statistical information and data at the time he issued said letter of instruction and such factual foundation cannot be defeated by petitioner's naked assertion, not backed up by demonstrable data on record, that early warning devices are not too vital to the prevention of nighttime vehicular accidents. To set it aside for alleged repugnancy to the due process clause is to give sanction to conjectural claims that exceeded even the broadest permissible limits of a pleader's well-known penchant for exaggeration. 4.ID.; ID.; ID.; ID.; EARLY WARNING DEVICE REQUIREMENT NOT OPPRESSIVE AND CONFISCATORY. There is nothing in the questioned Letter of Instruction No. 229, as amended, or in the implementing rules and regulations in Administrative Order No. 1 issued by the Land Transportation Commission, which requires or compels motor vehicle owners to purchase the early warning device prescribed thereby. All that is required is for motor vehicle owners concerned to equip their motor vehicles with a pair of this early warning device in question, procuring or obtaining the same from whatever source. With a little of industry and practical ingenuity, motor vehicle owners can even personally make or produce this early warning device so long as the same substantially conforms with the specifications laid down in said letter of instruction and administrative order. Accordingly, the early warning device requirement can neither be oppressive, onerous, immoral, nor confiscatory, much less does it make manufacturers and dealers of said devices instant millionaries at the expense of car owners as petitioner so sweepingly concludes. 5.ID.; ID.; ID.; ID.; ATTACK ON THE WISDOM THEREOF CANNOT BE SUSTAINED. The attack on the validity of the challenged provision insofar as there may be objections, even if valid and cogent, on its wisdom cannot be sustained. That approach is distinguished by its unorthodoxy. It bears repeating "that this Court, in the language of Justice Laurel, 'does not pass upon questions of wisdom, justice or

expediency of legislation.' As expressed by Justice Tuason:' It is not the province of the courts to supervise legislation and keep it within the bounds of propriety and common sense. That is primarily and exclusively a legislative concern.' There can be no possible objection then to the observation of Justice Montemayor:' As long as laws do not violate any constitutional provision, the Courts merely interpret and apply them regardless of whether or not they are wise or salutary.' For they, according to Justice Labrador, 'are not supposed to override legitimate policy and . . . never inquire into the wisdom of the law.' It is thus settled, to paraphrase Chief Justice Concepcion in Gonzales v. Commission on Elections, that only congressional power or competence, not the wisdom of the action taken, may be the basis for declaring a statute invalid. This is as it ought to be. The principle of separation of powers has in the main wisely allocated the respective authority of each department and confined its jurisdiction to such a sphere. There would then be intrusion not allowable under the Constitution if on a matter left to the discretion of a coordinate branch, the judiciary would substitute its own. If there be adherence to the rule of law, as there ought to be, the last offender should be courts of justice, to which rightly litigants submit their controversy precisely to maintain unimpaired the supremacy of legal norms and prescriptions. . . ." 6.ID.; ID.; ID.; NO INFRINGEMENT OF THE PRINCIPLE OF NON-DELEGATION OF LEGISLATIVE POWER. The alleged infringement of the principle of nondelegation of legislative power is without any support in well-settled legal doctrines. An excerpt from the aforecited decision of Edu v. Ericta sheds light on the matter: "To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least that the legislature itself determines matters of principle and lays down fundamental policy. Otherwise, the charge of complete abdication may be hard to repel. A standard thus defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected. It is the criterion by which legislative purpose may be carried out. Thereafter, the executive or administrative office designated may in pursuance of the above guidelines promulgate supplemental rules and regulations. The standard may be either express or implied. If the former, the non-delegation is easily met. The standard though does not have to be spelled out specifically. It could be implied from the policy and purpose of the act considered as a whole. . . ."

7.ID.; ID.; ID.; ID.; STATE RECOGNITION OF INTERNATIONAL AGREEMENTS. Where the two whereas clauses of the assailed Letter of Instruction read: "(Whereas), the hazards posed by such obstructions to traffic have been recognized by international bodies concerned with traffic safety, the 1968 Vienna Convention on Road Signs and Signals and the United Nations Organization (U.N.); (Whereas), the said Vienna Convention, which was ratified by the Philippine Government under P.D. No. 207, recommended the enactment of local legislation for the installation of road safety signs

and devices; . . .", it cannot be disputed then that this Declaration of Principle found in the Constitution possesses relevance: "The Philippines . . . adopts the generally accepted principles of international law as part of the law of the land, . . ." The 1968 Vienna Convention on Road Signs and Signals is impressed with such a character. It is not for this country to repudiate a commitment to which it had pledged its word. The concept of Pacta sunt servanda stands in the way of such an attitude, which is, moreover, at war with the principle of international morality. TEEHANKEE, J., dissenting: 1.STATUTES; LETTER OF INSTRUCTION NO. 229; EARLY WARNING DEVICE REQUIREMENT; OPPRESSIVE, ARBITRARY AND DISCRIMINATORY. It is oppressive, arbitrary and discriminatory to require owners of motor vehicles with built-in and more effective and efficient early warning devices (E.W.D.'s) such as "(a) blinking lights in the fore and aft of said motor vehicles, (b) battery-powered blinking lights inside motor vehicles, (c) built-in reflectorized tapes on front and rear bumpers of motor vehicles . . . ." to purchase the E.W.D. specified in the challenged order, whose effectivity and utility have yet to be demonstrated. 2.ID.; ID.; ID.; NO PUBLIC NECESSITY THEREFOR. The public necessity for the challenged order has yet to be shown. No valid refutation has been made of petitioner's assertion that the "E.W.D.'s" are not too vital to the prevention of nighttime vehicular accidents. Statistics show that the 26,000 motor vehicle accidents that occurred in 1976, only 390 or 1.5 percent involved rear-end collisions, "as to require the purchase and installation of the questioned E.W.D. for almost 900,000 vehicles throughout the country. There is no imperative need for imposing such a blanket requirement on all vehicles. The respondents have not shown that they have availed of the powers and prerogatives vested in their offices such as ridding the country of dilapitated trucks and vehicles which are the main cause of the deplorable highway accidents due to stalled vehicles, establishing an honest and fool-proof system of examination and licensing of motor vehicle drivers so as to ban the reckless and irresponsible and a sustained education campaign to install safe driving habits and attitudes that can be carried out for much less than the P50 million burden that would be imposed by the challenged order.

DECISION

FERNANDO, J :
p

The validity of a Letter of Instruction 1 providing for an early warning device for motor vehicles is assailed in this prohibition proceeding as being violative of the constitutional guarantee of due process and, insofar as the rules and regulations for its implementation

are concerned, for transgressing the fundamental principle of non-delegation of legislative power. The Letter of Instruction is stigmatized by petitioner, who is possessed of the requisite standing, as being arbitrary and oppressive. A temporary restraining order as issued and respondents Romeo F. Edu, Land Transportation Commissioner; Juan Ponce Enrile, Minister of National Defense; Alfredo L. Juinio, Minister of Public Works, Transportation and Communications; and Baltazar Aquino, Minister of Public Highways; were required to answer. That they did in a pleading submitted by Solicitor General Estelito P. Mendoza. 2 Impressed with a highly persuasive quality, it makes quite clear that the imputation of a constitutional infirmity is devoid of justification. The challenged Letter of Instruction is a valid police power measure. Nor could the implementing rules and regulations issued by respondent Edu be considered as amounting to an exercise of legislative power. Accordingly, the petition must be dismissed.
llcd

The facts are undisputed. The assailed Letter of Instruction No. 229 of President Marcos, issued on December 2, 1974, reads in full: "[Whereas], statistics show that one of the major causes of fatal or serious accidents in land transportation is the presence of disabled, stalled, or parked motor vehicles along streets or highways without any appropriate early warning device to signal approaching motorists of their presence; [Whereas], the hazards posed by such obstructions to traffic have been recognized by international bodies concerned with traffic safety, the 1968 Vienna Convention on Road Signs and Signals and the United Nations Organization (U.N.); [Whereas], the said Vienna Convention which was ratified by the Philippine Government under P.D. No. 207, recommended the enactment of local legislation for the installation of road safety signs and devices; [Now, therefore, I, Ferdinand E. Marcos], President of the Philippines, in the interest of safety on all streets and highways, including expressways or limited access roads, do hereby direct: 1. That all owners, users or drivers of motor vehicles shall have at all times in their motor vehicles at least one (1) pair of early warning device consisting of triangular, collapsible reflectorized plates in red and yellow colors at least 15 cms. at the base and 40 cms. at the sides. 2. Whenever any motor vehicle is stalled or disabled or is parked for thirty (30) minutes or more on any street or highway, including expressways or limited access roads, the owner, user or driver thereof shall cause the warning device mentioned herein to be installed at least four meters away to the front and rear of the motor vehicle stalled, disabled or parked. 3. The Land Transportation Commissioner shall cause Reflectorized Triangular Early Warning Devices, as herein described, to be prepared and issued to registered owners of motor vehicles, except motorcycles and trailers, charging for each piece not more than 15% of the acquisition cost. He shall also promulgate such rules and regulations as are appropriate to effectively implement this order. 4. All hereby concerned shall closely coordinate and take such measures as are necessary or appropriate to carry into effect these instructions." 3 Thereafter, on November 15, 1976, it was amended by Letter of Instruction No. 479 in this wise: "Paragraph 3 of Letter of Instructions No. 229 is hereby amended to read as follows: '3. The Land Transportation Commissioner shall require every motor vehicle owner to procure from any source and present at the registration of his vehicle, one pair

of a reflectorized triangular early warning device, as described herein, of any brand or make chosen by said motor vehicle owner. The Land Transportation Commissioner shall also promulgate such rules and regulations as are appropriate to effectively implement this order.'" 4 There was issued accordingly, by respondent Edu, the implementing rules and regulations on December 10, 1976. 5 They were not enforced as President Marcos, on January 25, 1977, ordered a six-month period of suspension insofar as the installation of early warning device as a pre-registration requirement for motor vehicles was concerned. 6 Then on June 30, 1978, another Letter of Instruction 7 ordered the lifting of such suspension and directed the immediate implementation of Letter of Instruction No. 229 as amended. 8 It was not until August 29, 1978 that respondent Edu issued Memorandum Circular No. 32, worded thus: "In pursuance of Letter of Instructions No. 716, dated June 30, 1978, directing the implementation of Letter of Instructions No. 229, as amended by Letter of Instructions No. 479, requiring the use of Early Warning Devices (EWD) on motor vehicles, the following rules and regulations are hereby issued: 1. LTC Administrative Order No. 1, dated December 10, 1976; shall now be implemented provided that the device may come from whatever source and that it shall have substantially complied with the EWD specifications contained in Section 2 of said administrative order; 2. In order to insure that every motor vehicle, except motorcycles, is equipped with the device, a pair of serially numbered stickers, to be issued free of charge by this Commission, shall be attached to each EWD. The EWD serial number shall be indicated on the registration certificate and official receipt of payment of current registration fees of the motor vehicle concerned. All Orders, Circulars, and Memoranda in conflict herewith are hereby superseded, This Order shall take effect immediately." 9 It was for immediate implementation by respondent Alfredo L. Juinio, as Minister of Public Works, Transportation, and Communications. 10 Petitioner, after setting forth that he "is the owner of a Volkswagen Beetle Car, Model 13035, already properly equipped when it came out from the assembly lines with blinking lights fore and aft, which could very well serve as an early warning device in case of the emergencies mentioned in Letter of Instructions No. 229, as amended, as well as the implementing rules and regulations in Administrative Order No. 1 issued by the Land Transportation Commission," 11 alleged that said Letter of Instruction No. 229, as amended, "clearly violates the provisions and delegation of police power, [sic] . . .:" For him, they are "oppressive, unreasonable, arbitrary, confiscatory, nay unconstitutional and contrary to the precepts of our compassionate New Society." 12 He contended that they are "infected with arbitrariness because it is harsh, cruel and unconscionable to the motoring public;" 13 are "one-sided, onerous and patently illegal and immoral because [they] will make manufacturers and dealers instant millionaires at the expense of car owners who are compelled to buy a set of the so-called early warning device at the rate of P56.00 to P72.00 per set." 14 are unlawful and unconstitutional and contrary to the precepts of a compassionate New Society [as being] compulsory and confiscatory on the part of the motorists who could very well provide a practical alternative road safety device, or a better substitute to the specified set of EWDs." 15 He therefore prayed for a

judgment declaring both the assailed Letters of Instructions and Memorandum Circular void and unconstitutional and for a restraining order in the meanwhile.

A resolution to this effect was handed down by this Court on October 19, 1978: "L-49112 (Leovillo C. Agustin v. Hon. Romeo F. Edu, etc., et al.) Considering the allegations contained, the issues raised and the arguments adduced in the petition for prohibition with writ of preliminary prohibitory and/or mandatory injunction, the Court Resolved to [require] the respondents to file an answer thereto within ten (10) days from notice and not to move to dismiss the petition. The Court further Resolved to [issue] a [temporary restraining order] effective as of this date and continuing until otherwise ordered by this Court." 16 Two motions for extension were filed by the Office of the Solicitor General and granted. Then on November 15, 1978, he Answer for respondents was submitted. After admitting the factual allegations and stating that they lacked knowledge or information sufficient to form a belief as to petitioner owning a Volkswagen Beetle car, 17 they "specifically deny the allegations in paragraphs X and XI (including its subparagraphs 1, 2, 3, 4) of Petition to the effect that Letter of Instruction No. 229 as amended by Letters of Instructions Nos. 479 and 716 as well as Land Transportation Commission Administrative Order No. 1 and its Memorandum Circular No. 32 violates the constitutional provisions on due process of law, equal protection of law and undue delegation of police power, and that the same are likewise oppressive, arbitrary, confiscatory, one-sided, onerous, immoral, unreasonable and illegal, the truth being that said allegations are without legal and factual basis and for the reasons alleged in the Special and Affirmative Defenses of this Answer." 18 Unlike petitioner who contented himself with a rhetorical recital of his litany of grievances and merely invoked the sacramental phrases of constitutional litigation, the Answer, in demonstrating that the assailed Letter of Instruction was a valid exercise of the police power and implementing rules and regulations of respondent Edu not susceptible to the charge that there was unlawful delegation of legislative power, there was in the portion captioned Special and Affirmative Defenses, a citation of what respondents believed to be the authoritative decisions of this Tribunal calling for application. They are Calalang v. Williams, 19 Morfe v. Mutuc, 20 and Edu v. Ericta. 21 Reference was likewise made to the 1968 Vienna Conventions of the United Nations on road traffic, road signs, and signals, of which the Philippines was a signatory and which was duly ratified. 22 Solicitor General Mendoza took pains to refute in detail, in language calm and dispassionate, the vigorous, at times intemperate, accusation of petitioner that the assailed Letter of Instruction and the implementing rules and regulations cannot survive the test of rigorous scrutiny. To repeat, its highly-persuasive quality cannot be denied.
LexLib

This Court thus considered the petition submitted for decision, the issues being clearly joined. As noted at the outset, it is far from meritorious and must be dismissed.

1.The Letter of Instruction in question was issued in the exercise of the police power. That is conceded by petitioner and is the main reliance of respondents. It is the submission of the former, however, that while embraced in such a category, it has offended against the due process and equal protection safeguards of the Constitution, although the latter point was mentioned only in passing. The broad and expansive scope of the police power which was originally identified by Chief Justice Taney of the American Supreme Court in an 1847 decision, as "nothing more or less than the powers of government inherent in every sovereignty" 23 was stressed in the aforementioned case of Edu v. Ericta thus: "Justice Laurel, in the first leading decision after the Constitution came into force, Calalang v. Williams, identified police power with state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare. Persons and property could thus 'be subjected to all kinds of restraints and burdens in order to secure the general comfort, health and prosperity of the state.' Shortly after independence in 1948, Primicias v. Fugoso reiterated the doctrine, such a competence being referred to as 'the power to prescribe regulations to promote the health, morals, peace, education, good order or safety, and general welfare of the people.' The concept was set forth in negative terms by Justice Malcolm in a pre-Commonwealth decision as 'that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety and welfare of society.' In that sense it could be hardly distinguishable as noted by this Court in Morfe v. Mutuc with the totality of legislative power. It is in the above sense the greatest and most powerful attribute of government. It is, to quote Justice Malcolm anew, 'the most essential, insistent, and at least illimitable powers,' extending as Justice Holmes aptly pointed out 'to all the great public needs.' Its scope, ever expanding to meet the exigencies of the times, even to anticipate the future where it could be done, provides enough room for an efficient and flexible response to conditions and circumstances thus assuring the greatest benefits. In the language of Justice Cardozo: 'Needs that were narrow or parochial in the past may be interwoven in the present with the well-being of the nation. What is critical or urgent changes with the time.' The police power is thus a dynamic agency, suitably vague and far from precisely defined, rooted in the conception that men in organizing the state and imposing upon its government limitations to safeguard constitutional rights did not intend thereby to enable an individual citizen or a group of citizens to obstruct unreasonably the enactment of such salutary measures calculated to insure communal peace, safety, good order, and welfare." 24 2.It was thus a heavy burden to be shouldered by petitioner, compounded by the fact that the particular police power measure challenged was clearly intended to promote public safety. It would be a rare occurrence indeed for this Court to invalidate a legislative or executive act of that character. None has been called to our attention, an indication of its being non-existent. The latest decision in point, Edu v. Ericta, sustained the validity of the Reflector Law, 25 an enactment conceived with the same end in view. Calalang v. Williams found nothing objectionable in a statute, the purpose of which was: "To promote safe transit upon, and avoid obstruction on roads and streets designated as

national roads . . ." 26 As a matter of fact, the first law sought to be nullified after the effectivity of the 1935 Constitution, the National Defense Act, 27 with petitioner failing in his quest, was likewise prompted by the imperative demands of public safety.
LLphil

3.The futility of petitioner's effort to nullify both the Letter of Instruction and the implementing rules and regulations becomes even more apparent considering his failure to lay the necessary factual foundation to rebut the presumption of validity. So it was held in Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila. 28 The rationale was clearly set forth in an excerpt from a decision of Justice Brandeis of the American Supreme Court, quoted in the opinion: "The statute here questioned deals with a subject clearly within the scope of the police power. We are asked to declare it void on the ground that the specific method of regulation prescribed is unreasonable and hence deprives the plaintiff of due process of law. As underlying questions of fact may condition the constitutionality of legislation of this character, the presumption of constitutionality must prevail in the absence of some factual foundation of record in overthrowing the statute." 29 4.Nor did the Solicitor General, as he very well could, rely solely on such rebutted presumption of validity. As was pointed out in his Answer: "The President certainly bad in his possession the necessary statistical information and data at the time he issued said letter of instructions, and such factual foundation cannot be defeated by petitioner's naked assertion that early warning devices 'are not too vital to the prevention of nighttime vehicular accidents' because allegedly only 390 or 1.5 per cent of the supposed 26,000 motor vehicle accidents that occurred in 1976 involved rear-end collisions (p. 12 of petition). Petitioner's statistics is not backed up by demonstrable data on record. As aptly stated by this Honorable Court: 'Further: "It admits of no doubt therefore that there being a presumption of validity, the necessity for evidence to rebut it is unavoidable, unless the statute or ordinance is void on its face, which is not the case here"' . . . But even assuming the verity of petitioner's statistics, is that not reason enough to require the installation of early warning devices to prevent another 390 rear-end collisions that could mean the death of 390 or more Filipinos and the deaths that could likewise result from head-on or frontal collisions with stalled vehicles?" 30 It is quite manifest then that the issuance of such Letter of Instruction is encased in the armor of prior, careful study by the Executive Department. To set it aside for alleged repugnancy to the due process clause is to give sanction to conjectural claims that exceeded even the broadest permissible limits of a pleader's well-known penchant for exaggeration. 5.The rather wild and fantastic nature of the charge of oppressiveness of this Letter of Instruction was exposed in the Answer of the Solicitor General thus: "Such early warning device requirement is not an expensive redundancy, nor oppressive, for car owners whose cars are already equipped with 1) 'blinking-lights in the fore and aft of said motor vehicles,' 2) 'battery-powered blinking lights inside motor vehicles,' 3) 'built-in reflectorized tapes on front and rear bumpers of motor vehicles,' or 4) 'well-lighted two

(2) petroleum lamps (the Kinke) . . . because: Being universal among the signatory countries to the said 1968 Vienna Conventions, and visible even under adverse conditions at a distance of at least 400 meters, any motorist from this country or from any part of the world, who sees a reflectorized rectangular early warning device installed on the roads, highways or expressways, will conclude, without thinking, that somewhere along the travelled portion of that road, highway, or expressway, there is a motor vehicle which is stationary, stalled or disabled which obstructs or endangers passing traffic. On the other hand, a motorist who sees any of the aforementioned other built-in warning devices or the petroleum lamps will not immediately get adequate advance warning because he will still think what that blinking light is all about. Is it an emergency vehicle? Is it a law enforcement car? Is it an ambulance? Such confusion or uncertainty in the mind of the motorist will thus increase, rather than decrease, the danger of collision." 31

6.Nor did the other extravagant assertions of constitutional deficiency go unrefuted in the Answer of the Solicitor General: "There is nothing in the questioned Letter of Instruction No. 229, as amended, or in Administrative Order No. 1, which requires or compels motor vehicle owners to purchase the early warning device prescribed thereby. All that is required is for motor vehicle owners concerned like petitioner, to equip their motor vehicles with a pair of this early warning device in question, procuring or obtaining the same from whatever source. In fact, with a little of industry and practical ingenuity, motor vehicle owners can even personally make or produce this early warning device so long as the same substantially conforms with the specifications laid down in said letter of instruction and administrative order. Accordingly, the early warning device requirement can neither be oppressive, onerous, immoral, nor confiscatory, much less does it make manufacturers and dealers of said devices 'instant millionaires at the expense of car owner's as petitioner so sweepingly concludes . . . Petitioner's fear that with the early warning device requirement 'a more subtle racket' may be committed by those called upon to enforce it . . . is an unfounded speculation. Besides, that unscrupulous officials may try to enforce said requirement in an unreasonable manner or to an unreasonable degree, does not render the same illegal or immoral where, as in the instant case, the challenged Letter of Instruction No. 229 and implementing order disclose none of the constitutional defects alleged against it." 32 7.It does appear clearly that petitioner's objection to this Letter of Instruction is not premised on lack of power, the justification for a finding of unconstitutionality, but on the pessimistic, not to say negative, view he entertains as to its wisdom. That approach, it put it at its mildest, is distinguished, if that is the appropriate word, by its unorthodoxy. It bears repeating "that this Court, in the language of Justice Laurel, 'does not pass upon questions of wisdom, justice or expediency of legislation.' As expressed by Justice Tuason: 'It is not the province of the courts to supervise legislation and keep it within the bounds of propriety and common sense. That is primarily and exclusively a legislative

concern.' There can be no possible objection then to the observation of Justice Montemayor: 'As long as laws do not violate any Constitutional provision, the Courts merely interpret and apply them regardless of whether or not they are wise or salutary.' For they, according to Justice Labrador, 'are not supposed to override legitimate policy and . . . never inquire into the wisdom of the law.' It is thus settled, to paraphrase Chief Justice Concepcion in Gonzales v. Commission on Elections, that only congressional power or competence, not the wisdom of the action taken, may be the basis for declaring a statute invalid. This is as it ought to be. The principle of separation of powers has in the main wisely allocated the respective authority of each department and confined its jurisdiction to such a sphere. There would then be intrusion not allowable under the Constitution if on a matter left to the discretion of a coordinate branch, the judiciary would substitute its own. If there be adherence to the rule of law, as there ought to be, the last offender should be courts of justice, to which rightly litigants submit their controversy precisely to maintain unimpaired the supremacy of legal norms and prescriptions. The attack on the validity of the challenged provision likewise insofar as there may be objections, even if valid and cogent, on is wisdom cannot be sustained." 33 8.The alleged infringement of the fundamental principle of non-himself with authoritative pronouncements from this Tribunal, he would not have the temerity to make such an assertion. An excerpt from the aforecited decision of Edu v. Ericta sheds light on the matter: "To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least that the legislature itself determines matters of principle and lays down fundamental policy. Otherwise, the charge of complete abdication may be hard to repel. A standard thus defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected. It is the criterion by which legislative purpose may be carried out. Thereafter, the executive or administrative office designated may in pursuance of the above guidelines promulgate supplemental rules and regulations. The standard may be either express or implied. If the former, the non-delegation objection is easily met. The standard though does not have to be spelled out specifically. It could be implied from the policy and purpose of the act considered as a whole. In the Reflector Law, clearly, the legislative objective is public safety. What is sought to be attained as in Calalang v. Williams is "safe transit upon the roads." This is to adhere to the recognition given expression by Justice Laurel in a decision announced not too long after the Constitution came into force and effect that the principle of non-delegation "has been made to adapt itself to the complexities of modern governments, giving rise to the adoption, within certain limits, of the principle of "subordinate legislation" not only in the United States and England but in practically all modern governments.' He continued: 'Accordingly, with the growing complexity of modern life, the multiplication of the subjects of governmental regulation, and the increased difficulty of administering the laws, there is a constantly growing tendency toward the delegation of greater powers by the legislature and toward the approval of the practice by the courts.' Consistency with the conceptual approach requires the reminder that what is delegated is authority non-

legislative in character, the completeness of the statute when it leaves the hands of Congress being assumed." 34 9.The conclusion reached by this Court that this petition must be dismissed is reinforced by this consideration. The petition itself quoted these two whereas clauses of the assailed Letter of Instruction: "[Whereas], the hazards posed by such obstructions to traffic have been recognized by international bodies concerned with traffic safety, the 1968 Vienna Convention on Road Signs and Signals and the United Nations Organization (U.N.); [Whereas], the said Vienna Convention, which was ratified by the Philippine Government under P.D. No. 207, recommended the enactment of local legislation for the installation of road safety signs and devices; . . ." 35 It cannot be disputed then that this Declaration of Principle found in the Constitution possesses relevance: "The Philippines . . . adopts the generally accepted principles of international law as part of the law of the land, . . ." 36 The 1968 Vienna Convention on Road Signs and Signals is impressed with such a character. It is not for this country to repudiate a commitment to which it had pledged its word. The concept of Pacta sunt servanda stands in the way of such an attitude, which is, moreover, at war with the principle of international morality.
LLpr

10.That is about all that needs be said. The rather court reference to equal protection did not even elicit any attempt on the part of petitioner to substantiate in a manner clear, positive, and categorical, why such a casual observation should be taken seriously. In no case is there a more appropriate occasion for insistence on what was referred to as "the general rule" in Santiago v. Far Eastern Broadcasting Co., 37 namely, "that the constitutionality of a law will not be considered unless the point is specially pleaded, insisted upon, and adequately argued." 38 "Equal protection" is not a talismanic formula at the mere invocation of which a party to a lawsuit can rightfully expect that success will crown his efforts. The law is anything but that. WHEREFORE, this petition is dismissed. The restraining order is lifted. This decision is immediately executory. No costs.

EN BANC
[G.R. No. L-7995. May 31, 1957.] LAO H. ICHONG, in his own behalf and in behalf of other alien residents, corporations and partnerships adversely affected by Republic Act No. 1180, petitioner, vs. JAIME HERNANDEZ, Secretary of Finance, and MARCELINO SARMIENTO, City Treasuer of Manila, respondent. Ozaeta, Lichauco & Picazo and Sycip, Quisumbing, Salazar & Associates for petitioner. Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for respondent Secretary of Finance. City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S. Serrano for respondent City Treasurer. Dionisio Reyes as Amicus Curiae. Marcial G. Mendiola as Amicus Curiae. Emiliano R. Navarro as Amicus Curiae. SYLLABUS 1.CONSTITUTIONAL LAW; POLICE POWER; NATURE AND SCOPE. Police power is far-reaching in scope, and it is almost impossible to limit its sweep. It derives its existence from the very existence of the State itself, and does not need to be expressed or defined in its scope. It is said to be co-extensive with self - protection and survival, and as such it is the most positive and active of all governmental processes, the most essential, insistent and illimitable. Especially is it so under a modern democratic framework where the demands of society and of nations have multiplied to almost unimaginable proportions; the field and scope of police power has become almost boundless, just as the fields of public interest and public welfare have become almost all-embracing and have transcended human foresight. 2.ID.; GUARANTEES IN SECTION I, ARTICLE III OF THE CONSTITUTION; UNIVERSALITY OF APPLICATION. The constitutional guarantees in Section I, Article III, of the Constitution, which embody the essence of individual liberty and freedom in democracies, are not limited to citizens alone but are

admittedly universal in their application, without regard to any differences of race, of color, or of nationality (Yiek Wo vs. Hopkins, 30 L. ed., 220, 226). 3.ID.; LAW DEPRIVATION OF LIFE, LIBERTY OR PROPERTY; TEST OR STANDARD. The conflict between police power and the guarantees of due process and equal protection of the laws is more apparent than real. Properly related, the power and the guarantees are supposed to coexist. The balancing is the essence, or the indispensable means for the attainment of legitimate aspirations of any democratic society. There can be no absolute power, whoever exercises it, for that would be tyranny. Yet there can neither be absolute liberty, for that would mean license and anarchy. So the State can deprive persons of life, liberty or property, provided there is due process of law; and persons may be classified into classes and groups, provided everyone is given the equal protection of the law. The test or standard, as always, is reason. The police power legislation must be firmly grounded on public interest and welfare, and a reasonable relation must exist between purposes and means. And if distinction or classification has been made, there must be a reasonable basis for said distinction. 4.ID.; EQUAL PROTECTION OF THE LAW CLAUSE; WHEN NOT DEEMED INFRINGED BY LEGISLATION. The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation, which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not (2 Cooley, Constitutional Limitations, 824-825). 5.ID.; ID.; LEGISLATIVE POWER TO MAKE DISTINCTION AND CLASSIFICATION AMONG PERSONS; CITIZENSHIP AS GROUND FOR CLASSIFICATION. The Power of the legislature to make distinctions and classifications among persons is not curtailed or denied by the equal protection of the laws clause. The legislative power admits of a wide scope of discretion, and a law can be violative of the constitutional limitation only when the classification is without reasonable basis. Citizenship is a legal and valid ground for classification. 6.ID.; ID.; NATIONALIZATION OF RETAIL TRADE; CLASSIFICATION IN REPUBLIC ACT NO. 1180 ACTUAL, REAL AND REASONABLE. The classification in the law of retail traders into nationals and aliens is actual, real and reasonable. All persons of one class are treated alike, and it cannot be said that the classification is patently unreasonable and unfounded. Hence, it is the duty of this Court to declare that the legislature acted within its legitimate prerogative and it

cannot declare that the act transcends the limits of equal protection established by the Constitution. 7.ID.; ID.; ID.; ID.; TEST OF REASONABLENESS. The law in question is deemed absolutely necessary to bring about the desired legislative objective, i.e., to free the national economy from alien control and dominance. It is not necessarily unreasonable because it affects private rights and privileges (II Am. Jur., pp. 10801081). The test of reasonableness of a law is the appropriateness or adequacy under all circumstances of the means adopted to carry out its purpose into effect. Judged by this test, the disputed legislation, which is not merely reasonable but actually necessary, must be considered not to have infringed the constitutional limitation of reasonableness. 8.ID.; ID.; ID.; ID.; ID.; REPUBLIC ACT NO. 1180 TOLERANT AND REASONABLE. A cursory study of the provisions of the law immediately reveals how tolerant and reasonable the Legislature has been. The law is made prospective and recognizes the right and privilege of those already engaged in the occupation to continue therein during the rest of their lives; and similar recognition of the right to continue is accorded associations of aliens. The right or privilege is denied only to persons upon conviction of certain offenses. 9.ID.; ID.; ID.; ATTAINMENT OF LEGISLATIVE ASPIRATIONS OF A PEOPLE NOT BEYOND THE LIMITS OF LEGISLATIVE AUTHORITY. If political independence is a legitimate aspiration of a people, then economic independence is none of less legitimate. Freedom and liberty are not real and positive if the people are subject to the economic control and domination of others, especially if not of their own race or country. The removal and eradication of the shackles of foreign economic control and domination is one of the noblest motives that a national legislature may pursue. It is impossible to conceive that legislation that seeks to bring it about can infringe the constitutional limitation of due process. The attainment of a legitimate aspiration of a people can never be beyond the limits of legislative authority. 10.ID.; ID.; ID.; NATIONALISTIC TENDENCY MANIFESTED IN THE CONSTITUTION. Nationalistic tendency is manifested in various provisions of the Constitution. The nationalization of the retail trade is only a continuance of the nationalistic protective policy laid down as a primary objective of the Constitution. It cannot therefore be said that a law imbued with the same purpose and spirit underlying many of the provisions of the Constitution is unreasonable, invalid or unconstitutional. 11.ID.; LEGISLATIVE DEPARTMENT; EXERCISE OF LEGISLATIVE DISCRETION NOT SUBJECT TO JUDICIAL REVIEW. The exercise of legislative discretion is not subject to judicial review. The Court will not inquire into the motives of the Legislature, nor pass upon general matters of legislative judgment. The Legislature is primarily the judge of the necessity of an enactment or of any of its

provisions, and every presumption is in favor of its validity, and though the Court may hold views inconsistent with the wisdom of the law, it may not annul the legislation if not palpably in excess of the legislative power. 12.ID.; TITLES OF BILLS; PROHIBITION AGAINST DUPLICITY; PRESENCE OF DUPLICITY NOT SHOWN IN TITLE OR PROVISIONS OF REPUBLIC ACT NO. 1180. What Section 21(1) of Article VI of the Constitution prohibits is duplicity, that is, if its title completely fails to apprise the legislators or the public of the nature, scope and consequences of the law or its operation (I Sutherland, Statutory Construction, Sec. 1707, p. 297). A cursory consideration of the title and the provisions of the bill fails to show the presence of duplicity. It is true that the term "regulate" does not and may not readily and at first glance convey the idea of "nationalization" and "prohibition", which terms express the two main purposes and objectives of the law. But "regulate" is a broader term than either prohibition or nationalization. Both of these have always been included within the term "regulation". 13.ID.; ID.; ID.; ID.; USE OF GENERAL TERMS IN TITLE OF BILL. The general rule is for the use of general terms in the title of a bill; the title need not be an index to the entire contents of the law (I Sutherland, Statutory Construction, Sec. 4803, p. 345). The above rule was followed when the title of the Act in question adopted the more general term "regulate" instead of "nationalize" or "prohibit". 14.ID.; ID.; ID.; ID.; PURPOSE OF CONSTITUTIONAL DIRECTIVE REGARDING SUBJECT OF A BILL. One purpose of the constitutional directive that the subject of a bill should be embraced in its title is to apprise the legislators of the purposes, the nature and scope of its provisions, and prevent the enactment into law of matters which have not received the notice, action and study of the legislators or of the public. In case at bar it cannot be claimed that the legislators have not been apprised of the nature of the law, especially the nationalization and prohibition provisions. The legislators took active interest in the discussion of the law, and a great many of the persons affected by the prohibition in the law conducted a campaign against its approval. It cannot be claimed, therefore, that the reasons for declaring the law invalid ever existed. 15.ID.; INTERNATIONAL TREATIES AND OBLIGATIONS NOT VIOLATED BY REPUBLIC ACT No. 1180; TREATIES SUBJECT TO QUALIFICATION OR AMENDMENT BY SUBSEQUENT LAW. The law does not violate international treaties and obligations. The United Nations Charter imposes no strict or legal obligations regarding the rights and freedom of their subjects (Jans Kelsen, The Law of the United Nations, 1951 ed., pp. 29-32), and the Declaration of Human Rights contains nothing more than a mere recommendation, or a common standard of achievement for all peoples and all nations. The Treaty of Amity between the Republic of the Philippines and the Republic of China of April 18, 1947 guarantees equality of treatment to the Chinese nationals "upon the same terms as the

nationals of any other country". But the nationals of China are not discriminated against because nationals of all other countries, except those of the United States, who are granted special rights by the Constitution, are all Prohibited from engaging in the retail trade. But even supposing that the law infringes upon the said treaty, the treaty is always subject to qualification or amendment by a subsequent law (U.S. vs. Thompson, 258, Fed. 257, 260), and the same may never curtail or restrict the scope of the police power of the State (Palston vs. Pennsylvania 58 L. ed., 539).

DECISION

LABRADOR, J :
p

I. The case and the issue, in general This Court has before it the delicate task of passing upon the validity and constitutionality of a legislative enactment, fundamental and far-reaching in significance The enactment poses questions of due process, police power and equal protection of the laws. It also poses an important issue of fact, that is whether the conditions which the disputed law purports to remedy really or actually exist. Admittedly springing from a deep, militant, and positive nationalistic impulse, the law purports to protect citizen and country from the alien retailer. Through it, and within the field of economy it regulates, Congress attempts to translate national aspirations for economic independence and national security, rooted in the drive and urge for national survival and welfare, into a concrete and tangible measures designed to free the national retailer from the competing dominance of the alien, so that the country and the nation may be free from a supposed economic dependence and bondage. Do the facts and circumstances justify the enactment? II. Pertinent provisions of Republic Act No. 1180 Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it nationalizes the retail trade business. The main provisions of the Act are: (1) a prohibition against persons, not citizens of the Philippines, and against associations, partnerships, or corporations the capital of which are not wholly owned by citizens of the Philippines, from engaging directly or indirectly in the retail trade; (2) an exception from the above prohibition in favor of aliens actually engaged in said business on May 15, 1954, who are allowed to continue to engage therein, unless their licenses are forfeited in accordance with the law, until their death or voluntary retirement in case of natural persons, and for ten years after the approval of the Act or until the expiration of term in case of juridical persons; (3) an exception therefrom in favor of citizens and juridical entities of the United States; (4) a provision for the forfeiture of licenses (to engage in the retail business) for violation of the laws on

nationalization, economic control weights and measures and labor and other laws relating to trade, commerce and industry; (5) a prohibition against the establishment or opening by aliens actually engaged in the retail business of additional stores or branches of retail business, (6) a provision requiring aliens actually engaged in the retail business to present for registration with the proper authorities a verified statement concerning their businesses, giving, among other matters, the nature of the business, their assets and liabilities and their offices and principal offices of juridical entities; and (7) a provision allowing the heirs of aliens now engaged in the retail business who die, to continue such business for a period of six months for purposes of liquidation. III. Grounds upon which petition is based Answer thereto Petitioner, for and in his own behalf and on behalf of other alien residents, corporations and partnerships adversely affected by the provisions of Republic Act No. 1180, brought this action to obtain a judicial declaration that said Act is unconstitutional, and to enjoin the Secretary of Finance and all other persons acting under him, particularly city and municipal treasurers, from enforcing its provisions. Petitioner attacks the constitutionality of the Act, contending that: (1) it denies to alien residents the equal protection of the laws and deprives them of their liberty and property without due process of law; (2) the subject of the Act is not expressed or comprehended in the title thereof; (3) the Act violates international and treaty obligations of the Republic of the Philippines; (4) the provisions of the Act against the transmission by aliens of their retail business thru hereditary succession, and those requiring 100% Filipino capitalization for a corporation or entity to entitle it to engage in the retail business, violate the spirit of Sections 1 and 5, Article XIII and Section 8 of Article XIV of the Constitution. In answer, the Solicitor-General and the Fiscal of the City of Manila contend that: (1) the Act was passed in the valid exercise of the police power of the State, which exercise is authorized in the Constitution in the interest of national economic survival; (2) the Act has only one subject embraced in the title; (3) no treaty or international obligations are infringed; (4) as regards hereditary succession, only the form is affected but the value of the property is not impaired, and the institution of inheritance is only of statutory origin. IV. Preliminary consideration of legal principles involved a.The police power. There is no question that the Act was approved in the exercise of the police power, but petitioner claims that its exercise in this instance is attended by a violation of the constitutional requirements of due process and equal protection of the laws. But before proceeding to the consideration and resolution of the ultimate issue involved, it would be well to bear in mind certain basic and fundamental, albeit preliminary, considerations in the determination of the ever recurrent conflict between police power and the guarantees of due process and equal protection of the laws. What is the

scope of police power and how are the due process and equal protection clauses related to it? What is the province and power of the legislature, and what is the function and duty of the courts? These consideration must be clearly and correctly understood that their application to the facts of the case may be brought forth with clarity and the issue accordingly resolved. It has been said that police power is so far-reaching in scope, that it has become almost impossible to limit its sweep. As it derives its existence from the very existence of the State itself, it does not need to be expressed or defined in its scope; it is said to be co- extensive with self-protection and survival, and as such it is the most positive and active of all governmental processes, the most essential, insistent and illimitable. Especially is it so under a modern democratic framework where the demands of society and of nations have multiplied to almost unimaginable proportions; the field and scope of police power has become almost boundless, just as the fields of public interest and public welfare have become almost all- embracing and have transcended human foresight. Otherwise stated, as we cannot foresee the needs and demands of public interest and welfare in this constantly changing and progressive world, so we cannot delimit beforehand the extent or scope of police power by which and through which the State seeks to attain or achieve public interest or welfare. So it is that Constitutions do not define the scope or extent of the police power of the State; what they do is to set forth the limitations thereof. The most important of these are the due process clause and the equal protection clause. b.Limitations on police power. The basic limitations of due process and equal protection are found in the following provisions of our Constitution:
"SECTION 1.(1)No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws." (Article III, Phil. Constitution)

These constitutional guarantees which embody the essence of individual liberty and freedom in democracies, are not limited to citizens alone but are admittedly universal in their application, without regard to any differences of race, of color, or of nationality. (Yick Wo vs. Hopkins, 30, L. ed. 220, 226.) c.The equal protection clause. The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation, which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exists for making a distinction between

those who fall within such class and those who do not. (2 Cooley, Constitutional Limitations, 824-825.) d.The due process clause. The due process clause has to do with the reasonableness of legislation enacted in pursuance of the police power, Is there public interest, a public purpose; is public welfare involved? Is the Act reasonably necessary for the accomplishment of the legislature's purpose; is it not unreasonable, arbitrary or oppressive? Is there sufficient foundation or reason in connection with the matter involved; or has there not been a capricious use of the legislative power? Can the aims conceived be achieved by the means used, or is it not merely an unjustified interference with private interest? These are the questions that we ask when the due process test is applied. The conflict, therefore, between police power and the guarantees of due process and equal protection of the laws is more apparent than real. Properly related, the power and the guarantees are supposed to coexist. The balancing is the essence or, shall it be said, the indispensable means for the attainment of legitimate aspirations of any democratic society. There can be no absolute power, whoever exercise it, for that would be tyranny. Yet there can neither be absolute liberty, for that would mean license and anarchy. So the State can deprive persons of life, liberty and property, provided there is due process of law; and persons may be classified into classes and groups, provided everyone is given the equal protection of the law. The test or standard, as always, is reason. The police power legislation must be firmly grounded on public interest and welfare, and a reasonable relation must exist between purposes and means. And if distinction and classification has been made, there must be a reasonable basis for said distinction. e.Legislative discretion not subject to judicial review. Now, in this matter of equitable balancing, what is the proper place and role of the courts? It must not be overlooked, in the first place, that the legislature, which is the constitutional repository of police power and exercises the prerogative of determining the policy of the State, is by force of circumstances primarily the judge of necessity, adequacy or reasonableness and wisdom, of any law promulgated in the exercise of the police power, or of the measures adopted to implement the public policy or to achieve public interest. On the other hand, courts, although zealous guardians of individual liberty and right, have nevertheless evinced a reluctance to interfere with the exercise of the legislative prerogative. They have done so early where there has been a clear, patent or palpable arbitrary and unreasonable abuse of the legislative prerogative. Moreover, courts are not supposed to override legitimate policy, and courts never inquire into the wisdom of the law. V. Economic problems sought to be remedied

With the above considerations in mind, we will now proceed to delve directly into the issue involved. If the disputed legislation were merely a regulation, as its title indicates, there would be no question that it falls within the legitimate scope of legislative power. But it goes further and prohibits a group of residents, the aliens, from engaging therein. The problem becomes more complex because its subject is a common, trade or occupation, as old as society itself, which from time immemorial has always been open to residents, irrespective of race, color or citizenship. a.Importance of retail trade in the economy of the nation. In a primitive economy where families produce all that they consume and consume all that they produce, the dealer, of course, is unknown. But as group life develops and families begin to live in communities producing more than what they consume and needing an infinite number of things they do not produce, the dealer comes into existence. As villages develop into big communities and specialization in production begins, the dealer's importance is enhanced. Under modern conditions and standards of living, in which man's needs have multiplied and diversified to unlimited extents and proportions, the retailer comes as essential as the producer, because thru him the infinite variety of articles, goods and commodities needed for daily life are placed within the easy reach of consumers. Retail dealers perform the functions of capillaries in the human body, thru which all the needed food and supplies are ministered to members of the communities comprising the nation. There cannot be any question about the importance of the retailer in the life of the community. He ministers to the resident's daily needs, food in all its increasing forms, and the various little gadgets and things needed for home and daily life. He provides his customers around his store with the rice or corn, the fish, the salt, the vinegar, the spices needed for the daily cooking. He has cloths to sell, even the needle and the thread to sew them or darn the clothes that wear out. The retailer, therefore, from the lowly peddler, the owner of a small sari-sari store, to the operator of a department store or a supermarket is so much a part of day-to-day existence. b.The alien retailer's traits. The alien retailer must have started plying his trade in this country in the bigger centers of population (Time there was when he was unknown in provincial towns and villages). Slowly but gradually he invaded towns and villages; now he predominates in the cities and big centers of population. He even pioneers in far away nooks where the beginnings of community life appear, ministering to the daily needs of the residents and purchasing their agricultural produce for sale in the towns. It is an undeniable fact that in many communities the alien has replaced the native retailer. He has shown in this trade, industry without limit, and the patience and forbearance of a slave. Derogatory epithets are hurled at him, but he laughs these off without murmur; insults of ill-bred and insolent neighbors and customers are made in his face, but he heeds them not, and he forgets and forgives. The community takes no note of him, as he appears to be harmless and extremely useful.

c.Alleged alien control and dominance. There is a general feeling on the part of the public, which appears to be true to fact, about the controlling and dominant position that the alien retailer holds in the nation's economy. Food and other essentials, clothing, almost all articles of daily life reach the residents mostly through him. In big cities and centers of population he has acquired not only predominance, but apparent control over distribution of almost all kinds of goods, such as lumber, hardware, textiles, groceries, drugs, sugar, flour, garlic, and scores of other goods and articles. And were it not for some national corporations like the Naric, the Namarco, the Facomas and the Accfa, his control over principal foods and products would easily become full and complete. Petitioner denies that there is alien predominance and control in the retail trade. In one breath it is said that the fear is unfounded and the threat is imagined; in another, it is charged that the law is merely the result of racialism and pure and unabashed nationalism. Alienage, it is said, is not an element of control; also so many unmanageable factors in the retail business make control virtually impossible. The first argument which brings up an issue of fact merits serious consideration. The others are matters of opinion within the exclusive competence of the legislature and beyond our prerogative to pass upon and decide. The best evidence are the statistics on the retail trade, which put down the figures in black and white. Between the constitutional convention year (1935), when the fear of alien domination and control of the retail trade already filled the minds of our leaders with fears and misgivings, and the year of the enactment of the nationalization of the retail trade act (1954), official statistics unmistakably point out to the ever-increasing dominance and control by the alien of the retail trade, as witness the following tables:
AssetsGross Sales Year and Retailer'sNo.-Estab-Per centPer cent NationalityishmentsPesosDistri-PesosDistributionbution 1941: Filipino106,671200,323,13855.82174,181,9245174 Chinese15,356118,348,69232.98148,813,23944.21 Others1,64640,187,09011.2013,630,2394.05 1947: Filipino111,107208,658,94665.05279,583,33357.03 Chinese13,774106,156,21833.56205,701,13441.96 Others3548,761,260.494,927,1681.01 1948: Filipino113,631213,342,26467.30467,161,66760.51 Chinese12,08793,155,45929.38294,894,22738.20 Others42210,514,6753.329,995,4021.29 1949:

Filipino113,659213,451,60260.89462,532,90153.47 Chinese16,248125,223,33635.72392,414,87545.36 Others48612,056,3653.3910,078,3641.17 1951: Filipino119,352224,053,62061.09466,058,05253.07 Chinese17,429134,325,30336.60404,481,38446.06 Others3478,614,0252.317,645,327.87 AVERAGE ASSETS AND GROSS SALES PER ESTABLISHMENT Item Gross Sales Year and Retailer'sAssets(Pesos) Nationality(Pesos) 1941: Filipino1,8781,633 Chinese7,7079,691 Others24,4158,281 1947: Filipino1,8782,516 Chinese7,70714,934 Others24,74913,919 1948: (Census) Filipino1,8784,111 Chinese7,70724,398 Others24,91623,686 1949: Filipino1,8784,069 Chinese7,70724,152 Others24,80720,737 1951: Filipino1,8773,905 Chinese7,70733,207 Others24,82422,033

(Estimates Assets and Gross Sales of Retail Establishments, By year and Nationality of Owners, Benchmark: 1948 Census, issued by the Bureau of Census and Statistics, Department of Commerce and Industry; pp. 18-19 of Answer.)

The above statistics do not include corporations and partnerships, while the figures on Filipino establishments already include mere market vendors, whose capital is necessarily small. The above figures reveal that in percentage distribution of assets and of gross sales, alien participation has steadily increased during the years. It is true, of course, that Filipinos have the edge in the number of retailers, but aliens more than make up

for the numerical gap through their assets and gross sales which average between six and seven times those of the very many Filipino retailers Numbers in retailers, here, do not imply superiority; the alien invests more capital, buys and sells six to seven times more, and gains much more. The same of official report, pointing out to the known predominance of foreign elements in the retail trade, remarks that the Filipino retailers were largely engaged in minor retailer enterprises. As observed by respondents, the native investment is thinly spread, and the Filipino retailer is practically helpless in matters of capital, credit, price and supply. d.Alien control and threat, subject of apprehension in Constitutional Convention. It is this domination and control, which we believe has been sufficiently shown to exist, that is the legislature's target in the enactment of the disputed nationalization law. If they did not exist as a fact the sweeping remedy of nationalization would never have been adopted. The framers of our Constitution also believed in the existence of this alien dominance and control when they approved a resolution categorically declaring among other things, that "it is the sense of the Convention that the public interest requires the nationalization of the retail trade; . . ." (II Aruego, The Framing of the Philippine Constitution, 662-663, quoted on page 67 of Petitioner.) That was twenty-two years ago; and the events since then have not been either pleasant or comforting. Dean Since of the University of the Philippines College of Law, commenting on the patrimony clause of the Preamble opines that the fathers of our Constitution were merely translating the general preoccupation of Filipinos "of the dangers from alien interests that had already brought under their control the commercial and other economic activities of the country" (Sinco, Phil. Political Law, 10th ed., p. 114); and analyzing the concern of the members of the constitutional convention for the economic life of the citizens, in connection with the nationalistic provisions of the Constitution, he says:
"But there has been a general feeling that alien dominance over the economic life of the country is not desirable and that if such a situation should remain, political independence alone is no guarantee to national stability and strength. Filipino private capital is not big enough to wrest from alien hands the control of the national economy. Moreover, it is but of recent formation and hence, largely inexperienced, timid and hesitant. Under such conditions, the government as the instrumentality of the national will, has to step in and assume the initiative, if not the leadership, in the struggle for the economic freedom of the nation in somewhat the same way that it did in the crusade for political freedom. Thus . . . It (the Constitution) envisages an organized movement for the protection of the nation not only against the possibilities of armed invasion but also against its economic subjugation by alien interests in the economic field." (Phil. Political Law by Sinco, 10th ed., p. 476.)

Belief in the existence of alien control and predominance is felt in other quarters. Filipino business men, manufacturers and producers believe so; they fear the business coming from alien control, and they express sentiments of economic independence. Witness thereto is Resolution No. 1, approved on July 18, 1953, of the Fifth National Convention of Filipino Businessmen, and a similar resolution, approved on March 20, 1954, of the Second National Convention of Manufacturers and Producers. The man in the street also believes, and fears, alien predominance and control; so our newspapers, which have editorially pointed out not only to control but to alien stranglehold. We, therefore, find alien domination and control to be a fact, a reality proved by official statistics, and felt by all the sections and groups that compose the Filipino community. e.Dangers of alien control and dominance in retail. But the dangers arising from alien participation in the retail trade does not seem to lie in the predominance alone; there is a prevailing feeling that such predominance may truly endanger the national interest. With ample capital, unity of purpose and action and thorough organization, alien retailers and merchants can act in such complete unison and concert on such vital matters as the fixing of prices, the determination of the amount of goods or articles to be made available in the market, and even the choice of the goods or articles they would or would not patronize or distribute, that fears of dislocation of the national economy and of the complete subservience of national retailers and of the consuming public are not entirely unfounded. Nationals, producers and consumers alike, can be placed completely at their mercy. This is easily illustrated. Suppose an article of daily use is desired to be prescribed by the aliens, because the producer or importer does not offer them sufficient profits, or because a new competing article offers bigger profits for its introduction. All that aliens would do is to agree to refuse to sell the first article, eliminating it from their stocks, offering the new one as a substitute. Hence, the producers or importers of the prescribed article, or its consumers, find the article suddenly out of circulation. Freedom of trade is thus curtailed and free enterprise correspondingly suppressed. We can even go farther than theoretical illustrations to show the pernicious influences of alien domination. Grave abuses have characterized the exercise of the retail trade by aliens. It is a fact within judicial notice, which courts of justice may not properly overlook or ignore in the interests of truth and justice, that there exists a general feeling on the part of the public that alien participation in the retail trade has been attended by a pernicious and intolerable practices, the mention of a few of which would suffice for our purposes; that at some time or other they have cornered the market of essential commodities, like corn and rice, creating artificial scarcities to justify and enhance profits to unreasonable proportions; that they have hoarded essential foods to the inconvenience and prejudice of the consuming public, so much so that the Government has had to establish the National Rice and Corn Corporation to save the public from their continuous hoarding practices and tendencies; that they

have violated price control laws, especially on foods and essential commodities, such that the legislature had to enact a law (Sec. 9, Republic Act No. 1168), authorizing their immediate and automatic deportation for price control convictions; that they have secret combinations among themselves to control prices, cheating the operation of the law of supply and demand; that they have connived to boycott honest merchants and traders who would not cater or yield to their demands, in unlawful restraint of freedom of trade and enterprise. They are believed by the public to have evaded tax laws, smuggled goods and money into and out of the land, violated import and export prohibitions, control laws and the like, in derision and contempt of lawful authority. It is also believed that they have engaged in corrupting public officials with fabulous bribes, indirectly causing the prevalence of graft and corruption in the Government. As a matter of fact appeals to unscrupulous aliens have been made both by the Government and by their own lawful diplomatic representatives, action which impliedly admits a prevailing feeling about the existence of many of the above practices. The circumstances above set forth create well founded fears that worse things may come in the future. The present dominance of the alien retailer, especially in the big centers of population, therefore, becomes a potential source of danger on occasions of war or other calamity. We do not have here in this country isolated groups of harmless aliens retailing goods among nationals; what we have are well organized and powerful groups that dominate the distribution of goods and commodities in the communities and big centers of population. They owe no allegiance or loyalty to the State, and the State cannot rely upon them in times of crisis or emergency. While the national holds his life, his person and his property subject to the needs of his country, the alien may even become the potential enemy of the State. f.Law enacted in interest of national economic survival and security. We are fully satisfied upon a consideration of all the facts and circumstances that the disputed law is not the product of racial hostility, prejudice or discrimination, but the expression of the legitimate desire and determination of the people, thru their authorized representatives, to free the nation from the economic situation that has unfortunately been saddled upon it rightly or wrongly, to its disadvantage. The law is clearly in the interest of the public, any of the national security itself, and indisputably falls within the scope of police power, thru which and by which the State insures its existence and security and the supreme welfare of its citizens. VI. The Equal Protection Limitation a.Objections to alien participation in retail trade. The next question that now poses solution is, Does the law deny the equal protection of the laws? As pointed out above, the mere fact of alienage is the root and cause of the distinction between the alien and the national as a trader. The alien resident owes allegiance to the country of his birth or his adopted country; his stay

here is for personal convenience; he is attracted by the lure of gain and profit. His aim or purpose of stay, we admit, is neither illegitimate nor immoral, but he is naturally lacking in that spirit of loyalty and enthusiasm for this country where he temporarily stays and makes his living, or of that spirit of regard, sympathy and consideration for his Filipino customers as would prevent him from taking advantage of their weakness and exploiting them. The faster he makes his pile, the earlier can the alien go back to his beloved country and his beloved kin and country men. The experience of the country is that the alien retailer has shown such utter disregard for his customers and the people on whom he makes his profit, that it has been found necessary to adopt the legislation, radical as it may seem. Another objection to the alien retailer in this country is that he never really makes a genuine contribution to national income and wealth. He undoubtedly contributes to general distribution, but the gains and profits he makes are not invested in industries that would help the country's economy and increase national wealth. The alien's interest in this country being merely transient and temporary, it would indeed be ill-advised to continue entrusting the very important function of retail distribution to his hands. The practices resorted to by aliens in the control of distribution, as already pointed out above, their secret manipulations of stocks of commodities and prices, their utter disregard of the welfare of their customers and of the ultimate happiness of the people of the nation of which they are mere guests, which practices, manipulations and disregard do not attend the exercise of the trade by the nationals, show the existence of real and actual, positive and fundamental differences between an alien and a national which fully justify the legislative classification adopted in the retail trade measure. These differences are certainly a valid reason for the State to prefer the national over the alien in the retail trade. We would be doing violence to fact and reality were we to hold that no reason or ground for a legitimate distinction can be found between one and the other. b.Difference in alien aims and purposes sufficient basis for distinction. The above objectionable characteristics of the exercise of the retail trade by the aliens, which are actual and real, furnish sufficient grounds for legislative classification of retail traders into nationals and aliens. Some may disagree with the wisdom of the legislature's classification. To this we answer, that this is the prerogative of the law-making power. Since the Court finds that the classification is actual, real and reasonable, and all persons of one class are treated alike, and as it cannot be said that the classification is patently unreasonable and unfounded, it is in duty bound to declare that the legislature acted within its legitimate prerogative and it cannot declare that the act transcends the limit of equal protection established by the Constitution.

Broadly speaking, the power of the legislature to make distinctions and classifications among persons is not curtailed or denied by the equal protection of the laws clause. The legislative power admits of a wide scope of discretion, and a law can be violative of the constitutional limitation only when the classification is without reasonable basis. In addition to the authorities we have earlier cited, we can also refer to the case of Lindsley vs. Natural Carbonic Gas Co. (1911), 55 L. ed., 369, which clearly and succinctly defined the application of equal protection clause to a law sought to be voided as contrary thereto:
". . . '1. The equal protection clause of the Fourteenth Amendment does not take from the state the power to classify in the adoption of police laws, but admits of the exercise of the wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety, or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.'"

c.Authorities recognizing citizenship as basis for classification. The question as to whether or not citizenship is a legal and valid ground for classification has already been affirmatively decided in this jurisdiction as well as in various courts in the United States. In the case of Smith Bell & Co. vs. Natividad, 40 Phil. 136, where the validity of Act No. 2761 of the Philippine Legislature was in issue, because of a condition therein limiting the ownership of vessels engaged in coastwise trade to corporations formed by citizens of the Philippine Islands or the United States, thus denying the right to aliens, it was held that the Philippine Legislature did not violate the equal protection clause of the Philippine Bill of Rights. The Legislature in enacting the law had as ultimate purpose the encouragement of Philippine shipbuilding and the safety for these Islands from foreign interlopers. We held that this was a valid exercise of the police power, and all presumptions are in favor of its constitutionality. In substance, we held that the limitation of domestic ownership of vessels engaged in coastwise trade to citizens of the Philippines does not violate the equal protection of the law and due process of law clauses of the Philippine Bill of Rights. In rendering said decision we quoted with approval the concurring opinion of Justice Johnson in the case of Gibbons vs. Ogden, 9 Wheat., I, as follows:
"'Licensing acts, in fact, in legislation, are universally restraining acts; as, for example, acts licensing gaming houses, retailers of spirituous liquors, etc. The act, in this instance, is distinctly of that character, and forms part of an extensive system, the object of which is to encourage American shipping, and place them on an equal footing with the shipping of other nations. Almost every

commercial nation reserves to its own subjects a monopoly of its coasting trade; and a countervailing privilege in favor of American shipping is contemplated, in the whole legislation of the United States on this subject. It is not to give the vessel an American character, that the license is granted; that effect has been correctly attributed to the act of her enrollment. But it is to confer on her American privileges, as contra distinguished from foreign; and to preserve the Government from fraud by foreigners; in surreptitiously intruding themselves into the American commercial marine, as well as frauds upon the revenue in the trade coastwise, that this whole system is projected.'"

The rule in general is as follows:

"Aliens are under no special constitutional protection which forbids a classification otherwise justified simply because the limitation of the class falls along the lines of nationality. That would be requiring a higher degree of protection for aliens as a class than for similar classes of American citizens. Broadly speaking, the difference in status between citizens and aliens constitutes a basis for reasonable classification in the exercise of police power." (2 Am. Jur. 468-469.)

In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a statute on the licensing of hawkers and peddlers, which provided that no one can obtain a license unless he is, or has declared his intention, to become a citizen of the United States, was held valid, for the following reason: It may seem wise to the legislature to limit the business of those who are supposed to have regard for the welfare, good order and happiness of the community, and the court cannot question this judgment and conclusion. In Bloomfield vs. State, 99 N.E. 309 (Ohio, 1912), a statute which prevented certain persons, among them aliens, from engaging in the traffic of liquors, was found not to be the result of race hatred, or in hospitality, or a deliberate purpose to discriminate, but was based on the belief that an alien cannot be sufficiently acquainted with 'our institutions and our life as to enable him to appreciate the relation of this particular business to our entire social fabric", and was not, therefore, invalid. In Ohio ex rel. Clarke vs. Deckebach, 274 U.S. 392, 71 L. ed. 1115 (1926), the U. S. Supreme Court had under consideration an ordinance of the city of Cincinnati prohibiting the issuance of licenses (pools and billiard rooms) to aliens. It held that plainly irrational discrimination against aliens is prohibited, but it does not follow that alien race and allegiance may not bear in some instances such a relation to a legitimate object of legislation as to be made the basis of permitted classification, and that it could not state that the legislation is clearly wrong; and that latitude must be allowed for the legislative appraisement of local conditions and for the legislative choice of methods for controlling an apprehended evil. The case of State vs. Carrol, 124 N. E. 129 (Ohio, 1919) is a parallel case to the one at bar. In Asakura vs. City of Seattle, 210 P. 30 (Washington, 1922), the business of pawnbroking was considered as having tendencies injuring public interest, and limiting it to citizens is within the scope of police power. A similar statute denying aliens the right to engage in auctioneering was also sustained in Wright vs. May, L. R. A., 1915 P. 151

(Minnesota, 1914). So also in Anton vs. Van Winkle, 297 F. 340 (Oregon, 1924), the court said that aliens are judicially known to have different interests, knowledge, attitude, psychology and loyalty, hence the prohibition of issuance of licenses to them for the business of pawnbroker, pool, billiard, card room, dance hall, is not an infringement of constitutional rights. In Templar vs. Michigan State Board of Examiners, 90 N.W. 1058 (Michigan, 1902), a law prohibiting the licensing of aliens as barbers was held void, but the reason for the decision was the court's finding that the exercise of the business by the aliens does not in any way affect the morals, the health, or even the convenience of the community. In Takahashi vs. Fish and Game Commission, 92 L. ed. 1479 (1947), a California statute banning the issuance of commercial fishing licenses to persons ineligible to citizenship was held void, because the law conflicts with Federal power over immigration, and because there is no public interest in the mere claim of ownership of the waters and the fish in them, so there was no adequate justification for the discrimination. It further added that the law was the outgrowth of antagonism toward persons of Japanese ancestry. However, two Justices dissented on the theory that fishing rights have been treated traditionally as natural resources. In Fraser vs. McConway & Tarley Co., 82 Fed. 257 (Pennsylvania, 1897), a state law which imposed a tax on every employer of foreign-born unnaturalized male persons over 21 years of age, was declared void because the court found that there was no reason for the classification and the tax was an arbitrary deduction from the daily wage of an employee. d.Authorities contra explained. It is true that some decisions of the Federal court and of the State courts in the United States hold that the distinction between aliens and citizens is not a valid ground for classification. But in these decisions the laws declared invalid were found to be either arbitrary, unreasonable or capricious, or were the result or product of racial antagonism and hostility, and there was no question of public interest involved or pursued. In Yu Cong Eng vs. Trinidad, 70 L. ed. 1059 (1925), the United States Supreme Court declared invalid a Philippine law making unlawful the keeping of books of account in any language other than English, Spanish or any other local dialect, but the main reasons for the decisions are: (1) that if Chinese were driven out of business there would be no other system of distribution, and (2) that the Chinese would fall prey to all kinds of fraud, because they would be deprived of their right to be advised of their business and to direct its conduct. The real reason for the decision, therefore, is the court's belief that no public benefit would be derived from the operation of the law and on the other hand it would deprive Chinese of something indispensable for carrying on their business. In Yick Wo vs. Hopkins, 30 L. ed. 220 (1885) an ordinance conferring power on officials to withhold consent in the operation of laundries both as to persons and place, was declared invalid, but the court said that the power granted was arbitrary, that there was no reason for the discrimination which attended the administration and implementation of the law, and

that the motive thereof was mere racial hostility. In State vs. Montgomery, 47 A. 165 (Maine, 1900), a law prohibiting aliens to engage as hawkers and peddlers was declared void, because the discrimination bore no reasonable and just relation to the act in respect to which the classification was proposed. The case at bar is radically different, and the facts make them so. As we already have said, aliens do not naturally possess the sympathetic consideration and regard for customers with whom they come in daily contact, nor the patriotic desire to help bolster the nation's economy, except in so far as it enhances their profit, nor the loyalty and allegiance which the national owes to the land. These limitations on the qualifications of aliens have been shown on many occasions and instances, especially in times of crisis and emergency. We can do no better than borrow the language of Anton vs. Van Winkle, 297 F. 340, 342, to drive home the reality and significance of the distinction between the alien and the national, thus:
". . . It may be judicially known, however, that aliens coming into this country are without the intimate knowledge of our laws, customs, and usages that our own people have. So it is likewise known that certain classes of aliens are of different psychology from our fellow countrymen. Furthermore, it is natural and reasonable to suppose that the foreign born, whose allegiance is first to their own country, and whose ideals of governmental environment and control have been engendered and formed under entirely different regimes and political systems, have not the same inspiration for the public weal, nor are they as well disposed toward the United States, as those who by citizenship, are a part of the government itself. Further enlargement, is unnecessary. I have said enough so that obviously it cannot be affirmed with absolute confidence that the Legislature was without plausible reason for making the classification, and therefore appropriate discrimination against aliens as it relates to the subject of legislation. . . ."

VII. The Due Process of Law Limitation a.Reasonability, the test of the limitation; determination by legislature decisive. We now come to due process as a limitation on the exercise of the police power. It has been stated by the highest authority in the United States that:
". . . And the guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the subject sought to be attained. . . ." xxx xxx xxx "So far as the requirement of due process is concerned and in the absence of other constitutional restriction a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose. The courts are without authority either to declare such policy, or, when it is declared by the legislature, to override it. If the laws passed are seen to have a reasonable relation to a

proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio. . . ." (Nebbia vs. New York, 78 L. ed. 940, 950, 957.)

Another authority states the principle thus:

". . . Too much significance cannot be given to the word 'reasonable' in considering the scope of the police power in a constitutional sense, for the test used to determine the constitutionality of the means employed by the legislature is to inquire whether the restrictions it imposes on rights secured to individuals by the Bill of Rights are unreasonable, and not whether it imposes any restrictions on such rights. . . ." xxx xxx xxx ". . . A statute to be within this power must also be reasonable in its operation upon the persons whom it affects, must not be for the annoyance of a particular class, and must not be unduly oppressive." (11 Am. Jur. Sec. 302, pp. 1074-1075.)

In the case of Lawton vs. Steele, 38 L. ed. 385, 388, it was also held:
". . . To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. . . ."

Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389, 395, fixes this test of constitutionality:
"In determining whether a given act of the Legislature, passed in the exercise of the police power to regulate the operation of a business, is or is not constitutional, one of the first questions to be considered by the court is whether the power as exercised has a sufficient foundation in reason in connection with the matter involved, or is an arbitrary, oppressive, and capricious use of that power, without substantial relation to the health, safety, morals, comfort, and general welfare of the public."

b.Petitioner's argument considered. Petitioner's main argument is that retail is a common, ordinary occupation, one of those privileges long ago recognized as essential to the orderly pursuit of happiness by free men; that it is a gainful and honest occupation and therefore beyond the power of the legislature to prohibit and penalize. This argument overlooks fact and reality and rests on an incorrect assumption and premise, i.e., that in this country where the occupation is engaged in by petitioner, it has been so engaged by him, by the alien, in an honest creditable and unimpeachable manner, without harm or injury to the citizens and without ultimate danger to their economic peace, tranquility and welfare. But the Legislature has found, as we have also found and indicated, that the privilege has been so grossly abused by the alien, thru the illegitimate use of pernicious designs

and practices, that he now enjoys a monopolistic control of the occupation and threatens a deadly stranglehold on the nation's economy endangering the national security in times of crisis and emergency. The real question at issue, therefore, is not that posed by petitioner, which overlooks and ignores the facts and circumstances, but this, Is the exclusion in the future of aliens from the retail trade unreasonable, arbitrary and capricious, taking into account the illegitimate and pernicious form and manner in which the aliens have heretofore engaged therein? As thus correctly stated the answer is clear. The law in question is deemed absolutely necessary to bring about the desired legislative objective, i.e., to free national economy from alien control and dominance. It is not necessarily unreasonable because it affects private rights and privileges (11 Am. Jur. pp. 1080-1081.) The test of reasonableness of a law is the appropriateness or adequacy under all circumstances of the means adopted to carry out its purpose into effect (Id.) Judged by this test, disputed legislation, which is not merely reasonable but actually necessary, must be considered not to have infringed the constitutional limitation of reasonableness. The necessity of the law in question is explained in the explanatory note that accompanied the bill, which later was enacted into law:
"This bill proposes to regulate the retail business. Its purpose is to prevent persons who are not citizens of the Philippines from having a strangle hold upon our economic life. If the persons who control this vital artery of our economic life are the ones who owe no allegiance to this Republic, who have no profound devotion to our free institutions, and who have no permanent stake in our people's welfare, we are not really the masters of our own destiny. All aspects of our life, even our national security, will be at the mercy of other people. "In seeking to accomplish the foregoing purpose, we do not propose to deprive persons who are not citizens of the Philippines of their means of livelihood. While this bill seeks to take away from the hands of persons who are not citizens of the Philippines a power that can be wielded to paralyze all aspects of our national life and endanger our national security it respects existing rights. "The approval of this bill is necessary for our national survival."

If political independence is a legitimate aspiration of a people, then economic independence is none the less legitimate. Freedom and liberty are not real and positive if the people are subject to the economic control and domination of others, especially if not of their own race or country. The removal and eradication of the shackles of foreign economic control and domination, is one of the noblest motives that a national legislature may pursue. It is impossible to conceive that legislation that seeks to bring it about can infringe the constitutional limitation of due process. The attainment of a

legitimate aspiration of a people can never be beyond the limits of legislative authority. c.Law expressly held by Constitutional Convention to be within the sphere of legislative action. The framers of the Constitution could not have intended to impose the constitutional restrictions of due process on the attainment of such a noble motive as freedom from economic control and domination, thru the exercise of the police power. The fathers of the Constitution must have given to the legislature full authority and power to enact legislation that would promote the supreme happiness of the people, their freedom and liberty. On the precise issue now before us, they expressly made their voice clear; they adopted a resolution expressing their belief that the legislation in question is within the scope of the legislative power. Thus they declared in their Resolution:
"'That it is the sense of the Convention that the public interest requires the nationalization of retail trade; but it abstains from approving the amendment introduced by the Delegate for Manila, Mr. Araneta, and others on this matter because it is convinced that the National Assembly is authorized to promulgate a law which limits to Filipino and American citizens the privilege to engage in the retail trade.'" (II Aruego, The Framing of the Philippine Constitution, 662663, quoted on pages 66 and 67 of the Memorandum for the Petitioner.)

It would do well to refer to the nationalistic tendency manifested in various provisions of the Constitution. Thus in the preamble, a principal objective is the conservation of the patrimony of the nation and as corollary thereto the provision limiting to citizens of the Philippines the exploitation, development and utilization of its natural resources. And in Section 8 of Article XIV, it is provided that "no franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines." The nationalization of the retail trade is only a continuance of the nationalistic protective policy laid down as a primary objective of the Constitution. Can it be said that a law imbued with the same purpose and spirit underlying many of the provisions of the Constitution is unreasonable, invalid and unconstitutional? The seriousness of the Legislature's concern for the plight of the nationals as manifested in the approval of the radical measure is, therefore, fully justified. It would have been recreant to its duties towards the country and its people would it view the sorry plight of the nationals with complacency and refuse or neglect to adopt a remedy commensurate with the demands of public interest and national survival. As the repository of the sovereign power of legislation, the Legislature was in duty bound to face the problem and meet, through adequate measures, the danger and threat that alien domination of retail trade poses to national economy. d.Provisions of law not unreasonable.

A cursory study of the provisions of the law immediately reveals how tolerant, how reasonable the Legislature has been. The law is made prospective and recognizes the right and privilege of those already engaged in the occupation to continue therein during the rest of their lives; and similar recognition of the right to continue is accorded associations of aliens. The right or privilege is denied to those only upon conviction of certain offenses. In the deliberations of the Court on this case, attention was called to the fact that the privilege should not have been denied to children and heirs of aliens now engaged in the retail trade. Such provision would defeat the law itself, its aims and purposes. Besides, the exercise of legislative discretion is not subject to judicial review It is well settled that the Court will not inquire into the motives of the Legislature, nor pass upon general matters of legislative judgment. The Legislature is primarily the judge of the necessity of an enactment or of any of its provisions, and every presumption is in favor of its validity, and though the Court may hold views inconsistent with the wisdom of the law, it may not annul the legislation if not palpably in excess of the legislative power. Furthermore, the test of the validity of a law attacked as a violation of due process, is not its reasonableness, but its unreasonableness, and we find the provisions are not unreasonable. These principles also answer various other arguments raised against the law, some of which are: that the law does not promote general welfare; that thousands of aliens would be thrown out of employment; that prices will increase because of the elimination of competition; that there is no need for the legislation; that adequate replacement is problematical; that there may be general breakdown; that there would be repercussions from foreigners; etc. Many of these arguments are directed against the supposed wisdom of the law which lies solely within the legislative prerogative; they do not import invalidity. VIII. Alleged defect in the title of the law A subordinate ground or reason for the alleged invalidity of the law is the claim that the title thereof is misleading or deceptive, as it conceals the real purpose of the bill, which is to nationalize the retail business and prohibit aliens from engaging therein. The constitutional provision which is claimed to be violated in Section 21 (1) of Article VI, which reads:
"No bill which may be enacted into law shall embrace more then one subject which shall be expressed in the title of the bill".

What the above provision prohibits is duplicity, that is, if its title completely fails to apprise the legislators or the public of the nature, scope and consequences of the law or its operation (I Sutherland, Statutory Construction, Sec. 1707, p. 297.) A cursory consideration of the title and the provisions of the bill fails to show the presence of duplicity. It is true that the term "regulate" does not and may not readily and at first glance convey the idea of "nationalization" and "prohibition", which terms express the two main purposes and objectives of the law. But "regulate" is a broader term than either prohibition or nationalization. Both of these have always been included within the term regulation.

"Under the title of an act to 'regulate', the sale of intoxicating liquors, the Legislature may prohibit the sale of intoxicating liquors." (Sweet vs. City of Wabash, 41 Ind., 7; quoted in page 41 of Answer.) "Within the meaning of the Constitution requiring that the subject of every act of the Legislature shall be stated in the title, the title 'To regulate the sale of intoxicating liquors, etc." sufficiently expresses the subject of an act prohibiting the sale of such liquors to minors and to persons in the habit of getting intoxicated; such matters being properly included within the subject of regulating the sale." (Williams vs. State, 48 Ind. 306, 308, quoted in p. 42 of Answer.) "The word 'regulate' is of broad import, and necessarily implies some degree of restraint and prohibition of acts usually done in connection with the thing to be regulated. While word regulate' does not ordinarily convey meaning of prohibit, there is no absolute reason why it should not have such meaning when used in delegating police power in connection with a thing the best or only efficacious regulation of which involves suppression." (State vs. Morton, 162 So. 718, 182 La. 887, quoted in p. 42 of Answer.)

The general rule is for the use of general terms in the title of a bill; it has also been said that the title need not be an index to the entire contents of the law (I Sutherland, Statutory Construction, Sec. 4803, p. 345.) The above rule was followed when the title of the Act in question adopted the more general term "regulate" instead of "nationalize" or "prohibit". Furthermore, the law also contains other rules for the regulation of the retail trade, which may not be included in the terms "nationalization" or "prohibition"; so were the title changed from "regulate" to "nationalize" or "prohibit", there would have been many provisions not falling within the scope of the title which would have made the Act invalid. The use of the term "regulate", therefore, is in accord with the principle governing the drafting of statutes, under which a simple or general term should be adopted in the title, which would include all other provisions found in the body of the Act. One purpose of the constitutional directive that the subject of a bill should be embraced in its title is to apprise the legislators of the purposes, the nature and scope of its provisions, and prevent the enactment into law of matters which have not received the notice, action and study of the legislators or of the public. In the case at bar it cannot be claimed that the legislators have not been apprised of the nature of the law, especially the nationalization and prohibition provisions. The legislators took active interest in the discussion of the law, and a great many of the persons affected by the prohibition in the law conducted a campaign against its approval. It cannot be claimed, therefore, that the reasons for declaring the law invalid ever existed. The objection must therefore, be overruled. IX. Alleged violation of international treaties and obligations

Another subordinate argument against the validity of the law is the supposed violation thereby of the Charter of the United Nations and of the Declaration of Human Rights adopted by the United Nations General Assembly. We find no merit in the above contention. The United Nations Charter imposes no strict or legal obligations regarding the rights and freedom of their subjects (Hans Kelsen, The Law of the United Nations, 1951 ed. pp. 29-32), and the Declaration of Human Rights contains nothing more than a mere recommendation, or a common standard of achievement for all peoples and all nations (Id. p. 39.) That such is the import of the United Nations Charter aid of the Declaration of Human Rights can be inferred from the fact that members of the United Nations Organization, such as Norway and Denmark, prohibit foreigners from engaging in retail trade, and in most nations of the world laws against foreigners engaged in domestic trade are adopted. The Treaty of Amity between the Republic of the Philippines and the Republic of China of April 18, 1947 is also claimed to be violated by the law in question. All that the treaty guarantees is equality of treatment to the Chinese nationals "upon the same terms as the nationals of any other country." But the nationals of China are not discriminated against because nationals of all other countries, except those of the United States, who are granted special rights by the Constitution, are all prohibited from engaging in the retail trade. But even supposing that the law infringes upon the said treaty, the treaty is always subject to qualification or amendment by a subsequent law (U. S. vs. Thompson, 258, Fed. 257, 260), and the same may never curtail or restrict the scope of the police power of the State (Palston vs. Pennsylvania, 58 L. ed. 539.). X. Conclusion Resuming what we have set forth above we hold that the disputed law was enacted to remedy a real actual threat and danger to national economy posed by alien dominance and control of the retail business and free citizens and country from such dominance and control; that the enactment clearly falls within the scope of the police power of the State, thru which and by which it protects its own personality and insures its security and future; that the law does not violate the equal protection clause of the Constitution because sufficient grounds exist for the distinction between alien and citizen in the exercise of the occupation regulated, nor the due process of law clause, because the law is prospective in operation and recognizes the privilege of aliens already engaged in the occupation and reasonably protects their privilege; that the wisdom and efficacy of the law to carry out its objectives appear to us to be plainly evident as a matter of fact it seems not only appropriate but actually necessary and that in any case such matter falls within the prerogative of the Legislature, with whose power and discretion the Judicial department of the Government may not interfere; that the provisions of the law are clearly embraced in the title, and this suffers from no duplicity and has not misled the legislators or the segment of the population affected; and that it cannot be said to be void for supposed conflict with treaty obligations because no treaty has actually been entered into on the subject and

the police power may not be curtailed or surrendered by any treaty or any other conventional agreement. Some members of the Court are of the opinion that the radical effects of the law could have been made less harsh in its impact on the aliens. Thus it is stated that more time should have been given in the law for the liquidation of existing businesses when the time comes for them to close. Our legal duty, however, is merely to determine if the law falls within the scope of legislative authority and does not transcend the limitations of due process and equal protection guaranteed in the Constitution. Remedies against the harshness of the law should be addressed to the Legislature; they are beyond our power and jurisdiction. The petition is hereby denied, with costs against petitioner.

FIRST DIVISION
[G.R. No. L-7859. December 22, 1955.] WALTER LUTZ, as Judicial Administrator of the Intestate Estate of the deceased Antonio Jayme Ledesma, plaintiff-appellant, vs. J. ANTONIO ARANETA, as the Collector of Internal Revenue, defendant-appellee. Ernesto J. Gonzaga for appellant. Solicitor General Ambrosio Padilla, First Assistant Solicitor General Guillermo E. Torres and Solicitor Felicisimo R. Rosete for appellee. SYLLABUS 1.CONSTITUTIONAL LAW; TAXATION; POWER OF STATE TO LEVY TAX IN AND SUPPORT OF SUGAR INDUSTRY. As the protection and promotion of the sugar industry is a matter of public concern the Legislature may determine within reasonable bounds what is necessary for its protection and expedient for its promotion. Here, the legislative must be allowed full play, subject only to the test of reasonableness; and it is not contended that the means provided in section 6 of Commonwealth Act No. 567 bear no relation to the objective pursued or are oppressive in character. If objective an methods are alike constitutionally valid, no reason is seen why the state may not levy taxes to raise funds for their prosecution and attainment. Taxation may be made the implement. Taxation may be made the implement of the state's police power (Great Atl. & Pac. Tea Co. vs. Grosjean, 301 U.S. 412, 81 L. Ed. 1193; U.S. vs. Butler, 297 U.S. 1, 80 L. Ed. 477; M'Culloch vs. Maryland, 4 Wheat, 316, 4 L. Ed. 579). 2.ID.; ID.; POWER OF STATE TO SELECT SUBJECT OF TAXATION. It is inherent in the power to tax that a state be free to select the subjects of taxation, and it has been repeatedly held that "inequalities which result from a singling out of one particular class for taxation or exemption infringe no constitutional limitation (Carmicheal vs. Southern Coal & Coke Co., 301 U.S. 495, 81 L. Ed. 1245, citing numerous authorities, at 1251).

DECISION

REYES, J. B. L., J :
p

This case was initiated in the Court of First Instance of Negros Occidental to test the legality of the taxes imposed by Commonwealth Act No. 567, otherwise known as the Sugar Adjustment Act. Promulgated in 1940, the law in question opens (section 1) with a declaration of emergency, due to the threat to our industry by the imminent imposition of export taxes upon sugar as provided in the Tydings-McDuffie Act, and the "eventual loss of its preferential position in the United States market"; wherefore, the national policy was expressed "to obtain a readjustment of the benefits derived from the sugar industry by the component elements thereof" and "to stabilize the sugar industry so as to prepare it for the eventuality of the loss of its preferential position in the United States market and the imposition of the export taxes." In section 2, Commonwealth Act 567 provides for an increase of the existing tax on the manufacture of sugar, on a graduated basis, on each picul of sugar manufactures; while section 3 levies on owners or persons in control of lands devoted to the cultivation of sugar cane and ceded to others for a consideration, on lease or otherwise
"a tax equivalent to the difference between the money value of the rental or consideration collected and the amount representing 12 per centum of the assessed value of such land."

According to section 6 of the law

SEC. 6.All collections made under this Act shall accrue to a special fund in the Philippine Treasury, to be known as the 'Sugar Adjustment and Stabilization Fund,' and shall be paid out only for any or all of the following purposes or to attain any or all of the following objectives, as may be provided by law. First, to place the sugar industry in a position to maintain itself despite the gradual loss of the preferential position of the Philippine sugar in the United States market, and ultimately to insure its continued existence notwithstanding the loss of that market and the consequent necessity of meeting competition in the free markets of the world; Second, to readjust the benefits derived from the sugar industry by all of the component elements thereof the mill, the landowner, the planter of the sugar cane, and the laborers in the factory and in the field so that all might continue profitably to engage therein; Third, to limit the production of sugar to areas more economically suited to the production thereof; and Fourth, to afford labor employed in the industry a living wage and to improve their living and working conditions: Provided, That the President of the Philippines may, until the adjournment of the next regular session of the National Assembly, make the necessary disbursements from the fund herein created (1) for the establishment and operation of sugar experiment station or stations and the undertaking of researchers (a)to increase the recoveries of the

centrifugal sugar factories with the view of reducing manufacturing costs, (b) to produce and propagate higher yielding varieties of sugar cane more adaptable to different distinct conditions in the Philippines, (c) to lower the costs of raising sugar cane, (d) to improve the buying quality of denatured alcohol from molasses for motor fuel, (e) to determine the possibility of utilizing the other by-products of the industry, (f) to determine what crop or crops are suitable for rotation and for the utilization of excess cane lands, and (g) on other problems the solution of which would help rehabilitated and stabilize the industry, and (2) for the improvement of living and working conditions in sugar mills and sugar plantations, authorizing him to organize the necessary agency or agencies to take charge of the expenditure and allocation of said funds to carry out the purpose hereinbefore enumerated, and, likewise, authorizing the disbursement from the fund herein created of the necessary amount of amounts needed for salaries, wages, travelling expenses, equipment, and other sundry expenses or said agency or agencies."

Plaintiff, Walter Lutz, in his capacity as Judicial Administrator of the Intestate Estate of Antonio Jayme Ledesma, seeks to recover from the Collector of Internal Revenue the sum of P14,666.40 paid by the estate as taxes, under section 3 of the Act, for the crop years 1948-1949 and 1949-1950; alleging that such tax is unconstitutional and void, being levied for the aid and support of the sugar industry exclusively, which in plaintiff's opinion is not a public purpose for which a tax may be constitutionally levied. The action having been dismissed by the Court of First Instance, the plaintiffs appealed the case directly to this Court (Judiciary Act, section 17). The basic defect in the plaintiff's position is his assumption that the tax provided for in Commonwealth Act No. 567 is a pure exercise of the taxing power. Analysis of the Act, and particularly of section 6 (heretofore quoted in full), will show that the tax is levied with a regulatory purpose, to provide means for the rehabilitation and stabilization of the threatened sugar industry. In other words, the act is primarily an exercise of the police power. This Court can take judicial notice of the fact that sugar production in one of the great industries of our nation, sugar occupying a leading position among its export products; that it gives employment to thousands of laborers in fields and factories; that it is a great source of the state's wealth, is one of the important sources of foreign exchange needed by our government, and is thus pivotal in the plans of a regime committed to a policy of currency stability. Its promotion, protection and advancement, therefore redounds greatly to the general welfare. Hence it was competent for the legislature to find that the general welfare demanded that the sugar industry should be stabilized in turn; and in the wide field of its police power, the lawmaking body could provide that the distribution of benefits therefrom be readjusted among its components to enable it to resist the added strain of the increase in taxes that it had to sustain (Sligh vs. Kirkwood, 237 U. S. 52, 59 L. Ed. 835; Johnson vs. State ex rel. Marey, 99 Fla. 1311, 128 So 853; Maxcy Inc. vs. Mayo, 103 Fla. 552, 139 So. 121).

As stated in Johnson vs. State ex rel. Marey, with reference to the citrus industry in Florida
"The protection of a large industry constituting one of the great sources of the state's wealth and therefore directly or indirectly affecting the welfare of so great a portion of the population of the State is affected to such an extent by public interests as to be within the police power of the sovereign." (128 So. 857)

Once it is conceded, as it must, that the protection and promotion of the sugar industry is a matter of public concern, it follows that the Legislature may determine within reasonable bounds what is necessary for its protection and expedient for its promotion. Here, the legislative discretion must be allowed full play, subject only to the test of reasonableness; and it is not contended that the means provided in section 6 of the law (above quoted) bear no relation to the objective pursued or are oppressive in character. If objective and methods are alike constitutionally valid, no reason is seen why the state may not be levy taxes to raise funds for their prosecution and attainment. Taxation may be made the implement of the state's police power (Great Atl. & Pac. Tea Co. vs. Grosjean, 301 U. S. 412, 81 L. Ed. 1193; U. S. vs. Butler, 297 U. S. 1, 80 L. Ed. 477; M'Culloch vs. Maryland, 4 Wheat. 318, 4 L. Ed. 579). That the tax to be levied should burden the sugar producers themselves can hardly be a ground of complaint; indeed, it appears rational that the tax be obtained precisely from those who are to be benefited from the expenditure of the funds derived from it. At any rate, it is inherent in the power to tax that a state be free to select the subjects of taxation, and it has been repeatedly held that "inequalities which result from a singling out of one particular class for taxation, or exemption infringe no constitutional limitation" (Carmichael vs. Southern Coal & Coke Co., 301 U. S. 495, 81 L. Ed. 1245, citing numerous authorities, at p. 1251). From the point of view we have taken it appears of no moment that the funds raised under the Sugar Stabilization Act, now in question, should be exclusively spent in aid of the sugar industry, since it is that very enterprise that is being protected. It may be that other industries are also in need of similar protection; but the legislature is not required by the Constitution to adhere to a policy of "all or none." As ruled in Minnesota ex rel. Pearson vs. Probate Court, 309 U. S. 270, 84 L. Ed. 744, "if the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied;" and that the legislative authority, exerted within its proper field, need not embrace all the evils within its reach" (N. L. R. B. vs. Jones & Laughlin Steel Corp. 301 U. S. 1, 81 L. Ed. 893). Even from the standpoint that the Act is a pure tax measure, it cannot be said that the devotion of tax money to experimental stations to seek increase of efficiency in sugar production, utilization of by- products and solution of allied problems, as well as to the improvement of living and working conditions in sugar mills or plantations, without any part of such money being channeled directly to private

persons, constitutes expenditure of tax money for private purposes, (compare Everson vs. Board of Education, 91 L. Ed. 472, 168 ALR 1392, 1400). The decision appealed from is affirmed, with costs against appellant. So ordered.

EN BANC
[G.R. No. L-75697. June 18, 1987.] VALENTIN TIO doing business under the name and style of OMI ENTERPRISES, petitioner, vs. VIDEOGRAM REGULATORY BOARD, MINISTER OF FINANCE, METRO MANILA COMMISSION, CITY MAYOR and CITY TREASURER OF MANILA, respondents. Nelson Y . Ng for petitioner. The City Legal Officer for respondents City Mayor and City Treasurer.

DECISION

MELENCIO-HERRERA, J :
p

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

On November 5, 1985, a month after the promulgation of the abovementioned decree, Presidential Decree No. 1994 amended the National Internal Revenue Code providing, inter alia:
"SEC. 134.Video Tapes. There shall be collected on each processed videotape cassette, ready for playback, regardless of length, an annual tax of five pesos; Provided, That locally manufactured or imported blank video tapes shall be subject to sales tax."

On October 23, 1986, the Greater Manila Theaters Association, Integrated Movie Producers, Importers and Distributors Association of the Philippines, and Philippine Motion Pictures Producers Association, hereinafter collectively referred to as the Intervenors, were permitted by the Court to intervene in the case, over petitioner's opposition, upon the allegations that intervention was necessary for the complete

protection of their rights and that their "survival and very existence is threatened by the unregulated proliferation of film piracy." The Intervenors were thereafter allowed to file their Comment in Intervention. The rationale behind the enactment of the DECREE, is set out in its preambular clauses as follows:
"1.WHEREAS, the proliferation and unregulated circulation of videograms including, among others, videotapes, discs, cassettes or any technical improvement or variation thereof, have greatly prejudiced the operations of moviehouses and theaters, and have caused a sharp decline in theatrical attendance by at least forty percent (40%) and a tremendous drop in the collection of sales, contractor's specific, amusement and other taxes, thereby resulting in substantial losses estimated at P450 Million annually in government revenues; "2.WHEREAS, videogram(s) establishments collectively earn around P600 Million per annum from rentals, sales and disposition of videograms, and such earnings have not been subjected to tax, thereby depriving the Government of approximately P180 Million in taxes each year; "3.WHEREAS, the unregulated activities of videogram establishments have also affected the viability of the movie industry, particularly the more than 1,200 movie houses and theaters throughout the country, and occasioned industry-wide displacement and unemployment due to the shutdown of numerous moviehouses and theaters; "4.WHEREAS, in order to ensure national economic recovery, it is imperative for the Government to create an environment conducive to growth and development of all business industries, including the movie industry which has an accumulated investment of about P3 Billion. "5.WHEREAS, proper taxation of the activities of videogram establishments will not only alleviate the dire financial condition of the movie industry upon which more than 75,000 families and 500,00 workers depend for their livelihood, but also provide an additional source of revenue for the Government, and at the same time rationalize the heretofore distribution of videograms; "6.WHEREAS, the rampant and unregulated showing of obscene videogram features constitutes a clear and present danger to the moral and spiritual wellbeing of the youth, and impairs the mandate of the Constitution for the State to support the rearing of the youth for civic efficiency and the development of moral character and promote their physical, intellectual, and social being;

"7.WHEREAS, civic-minded citizens and groups have called for remedial measures to curb these blatant malpractice's which have flaunted our censorship and copyright law; "8.WHEREAS, in the face of these grave emergencies corroding the moral values of the people and betraying the national economic recovery program, bold emergency measures must be adopted with dispatch; . . ." (Numbering of paragraphs supplied).

Petitioner's attack on the constitutionality of the DECREE rests on the following grounds:
"1.Section 10 thereof, which imposes a tax of 30% on the gross receipts payable to the local government is a RIDER and the same is not germane to the subject matter thereof; "2.The tax imposed is harsh, confiscatory, oppressive and/or in unlawful restraint of trade in violation of the due process clause of the Constitution; "3.There is no factual nor legal basis for the exercise by the President of the vast powers conferred upon him by Amendment No. 6; "4.There is undue delegation of power and authority; "5.The Decree is an ex-post facto law; and "6.There is over regulation of the video industry as if it were a nuisance, which it is not."

We shall consider the foregoing objections in seriatim. 1.The Constitutional requirement that "every bill shall embrace only one subject which shall be expressed in the title thereof" 1 is sufficiently complied with if the title be comprehensive enough to include the general purpose which a statute seeks to achieve. It is not necessary that the title express each and every end that the statute wishes to accomplish. The requirement is satisfied if all the parts of the statute are related, and are germane to the subject matter expressed in the title, or as long as they are not inconsistent with or foreign to the general subject and title. 5 Tested by the foregoing criteria, petitioner's contention that the tax provision of the DECREE is a rider is without merit. That section reads, inter alia:
"Section 10.Tax on Sale, Lease or Disposition of Videograms. Notwithstanding any provision of law to the contrary, the province shall collect a tax of thirty percent (30%) of the purchase price or rental rate, as the case may be, for every sale, lease or disposition of a videogram containing a reproduction

of any motion picture or audiovisual program. Fifty percent (50%) of the proceeds of the tax collected shall accrue to the province, and the other fifty percent (50%) shall accrue to the municipality where the tax is collected; PROVIDED, That in Metropolitan Manila, the tax shall be shared equally by the City/Municipality and the Metropolitan Manila Commission. xxx xxx xxx

The foregoing provision is allied and germane to, and is reasonably necessary for the accomplishment of, the general object of the DECREE, which is the regulation of the video industry through the Videogram Regulatory Board as expressed in its title. The tax provision is not inconsistent with, nor foreign to that general subject and title. As a tool for regulation 6 it is simply one of the regulatory and control mechanisms scattered throughout the DECREE. The express purpose of the DECREE to include taxation of the video industry in order to regulate and rationalize the heretofore uncontrolled distribution of videograms is evident from Preambles 2 and 5, supra. Those preambles explain the motives of the lawmaker in presenting the measure. The title of the DECREE, which is the creation of the Videogram Regulatory Board, is comprehensive enough to include the purposes expressed in its Preamble and reasonably covers all its provisions. It is unnecessary to express all those objectives in the title or that the latter be an index to the body of the DECREE. 7 2.Petitioner also submits that the thirty percent (30%) tax imposed is harsh and oppressive, confiscatory, and in restraint of trade. However, it is beyond serious question that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed. 8 The power to impose taxes is one so unlimited in force and so searching in extent, that the courts scarcely venture to declare that it is subject to any restrictions whatever, except such as rest in the discretion of the authority which exercises it. 10 The tax imposed by the DECREE is not only a regulatory but also a revenue measure prompted by the realization that earnings of videogram establishments of around P600 million per annum have not been subjected to tax, thereby depriving the Government of an additional source of revenue. It is an end-user tax, imposed on retailers for every videogram they make available for public viewing. It is similar to the 30% amusement tax imposed or borne by the movie industry which the theater-owners pay to the government, but which is passed on to the entire cost of the admission ticket, thus shifting the tax burden on the buying or the viewing public. It is a tax that is imposed uniformly on all videogram operators.
LexLib

The levy of the 30% tax is for a public purpose. It was imposed primarily to answer the need for regulating the video industry, particularly because of the rampant film piracy,

the flagrant violation of intellectual property rights, and the proliferation of pornographic video tapes. And while it was also an objective of the DECREE to protect the movie industry, the tax remains a valid imposition.
"The public purpose of a tax may legally exist even if the motive which impelled the legislature to impose the tax was to favor one industry over another. 11 "It is inherent in the power to tax that a state be free to select the subjects of taxation, and it has been repeatedly held that "inequities which result from a singling out of one particular class for taxation or exemption infringe no constitutional limitation'." 12 Taxation has been made the implement of the state's police power. 13

At bottom, the rate of tax is a matter better addressed to the taxing legislature. 3.Petitioner argues that there was no legal nor factual basis for the promulgation of the DECREE by the former President under Amendment No. 6 of the 1973 Constitution providing that "whenever in the judgment of the President . . ., there exists a grave emergency or a threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may, in order to meet the exigency, issue the necessary decrees, orders, or letters of instructions, which sharp form part of the law of the land." In refutation, the Intervenors and the Solicitor General's Office aver that the 8th "whereas" clause sufficiently summarizes the justification in that grave emergencies corroding the moral values of the people and betraying the national economic recovery problem necessitated bold emergency measures to be adopted with dispatch. Whatever the reasons "in the judgment" of the then President, considering that the issue of the validity of the exercise of legislative power under the said Amendment still pends resolution in several other cases, we reserve resolution of the question raised at the proper time. 4.Neither can it be successfully argued that the DECREE contains an undue delegation of legislative power. The grant in Section 11 of the DECREE of authority to the BOARD to "solicit the direct assistance of other agencies and units of the government and deputize, for a fixed and limited period, the heads or personnel of such agencies and units to perform enforcement functions for the Board" is not a delegation of the power to legislate but merely a conferment of authority or discretion as to its execution, enforcement, and implementation. "The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution to be exercised under and in pursuance of the law. The first cannot be done; to the latter, no valid objection can be made." 14 Besides,

in the very language of the decree, the authority of the BOARD to solicit such assistance is for a "fixed and limited period" with the deputized agencies concerned being "subject to the direction and control of the BOARD." That the grant of such authority might be the source of graft and corruption would not stigmatize the DECREE as unconstitutional. Should the eventuality occur, the aggrieved parties will not be without adequate remedy in law. 5.The DECREE is not violative of the ex post facto principle. An ex post facto law is, among other categories, one which "alters the legal rules of evidence, and authorizes conviction upon less or different testimony than the law required at the time of the commission of the offense." It is petitioner's position that Section 15 of the DECREE in providing that:
"All videogram establishments in the Philippines are hereby given a period of forty-five (45) days after the effectivity of this Decree within which to register with and secure a permit from the BOARD to engage in the videogram business and to register with the BOARD all their inventories of videograms, including videotapes, discs, cassettes or other technical improvements or variations thereof, before they could be sold, leased, or otherwise disposed of. Thereafter any videogram found in the possession of any person engaged in the videogram business without the required proof of registration by the BOARD, shall be prima facie evidence of violation of the Decree, whether the possession of such videogram be for private showing and/or public exhibition."

raises immediately a prima facie evidence of violation of the DECREE when the required proof of registration of any videogram cannot be presented and thus partakes of the nature of an ex post facto law. The argument is untenable. As this Court held in the recent case of Vallarta vs. Court of Appeals, et al. 15
". . . it is now well settled that 'there is no constitutional objection to the passage of a law providing that the presumption of innocence may be overcome by a contrary presumption founded upon the experience of human conduct, and enacting what evidence shall be sufficient to overcome such presumption of innocence' (People vs. Mingoa, 92 Phil. 856 [1953] at 858-59, citing 1 COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS, 639641). And the 'legislature may enact that when certain facts have been proved that they shall be prima facie evidence of the existence of the guilt of the accused and shift the burden of proof provided there be a rational connection between the facts proved and the ultimate facts presumed so that the inference of the one from proof of the others is not unreasonable and arbitrary because of lack of connection between the two in common experience'." 16

Applied to the challenged provision, there is no question that there is a rational connection between the fact proved, which is non-registration, and the ultimate fact presumed which is violation of the DECREE, besides the fact that the prima facie presumption of violation of the DECREE attaches only after a forty-five-day period counted from its effectivity and is, therefore, neither retrospective in character. 6.We do not share petitioner's fears that the video industry is being over-regulated and being eased out of existence as if it were a nuisance. Being a relatively new industry, the need for its regulation was apparent. While the underlying objective of the DECREE is to protect the moribund movie industry, there is no question that public welfare is at bottom of its enactment, considering "the unfair competition posed by rampant film piracy; the erosion of the moral fiber of the viewing public brought about by the availability of unclassified and unreviewed video tapes containing pornographic films and films with brutally violent sequences; and losses in government revenues due to the drop in theatrical attendance, not to mention the fact that the activities of video establishments are virtually untaxed since mere payment of Mayor's permit and municipal license fees are required to engage in business." 17 The enactment of the Decree since April 10, 1986 has not brought about the "demise" of the video industry. On the contrary, video establishments are seen to have proliferated in many places notwithstanding the 30% tax imposed. In the last analysis, what petitioner basically questions is the necessity, wisdom and expediency of the DECREE. These considerations, however, are primarily and exclusively a matter of legislative concern.
"Only congressional power or competence, not the wisdom of the action taken, may be the basis for declaring a statute invalid. This is as it ought to be. The principle of separation of powers has in the main wisely allocated the respective authority of each department and confined its jurisdiction to such a sphere. There would then be intrusion not allowable under the Constitution if on a matter left to the discretion of a corporate branch, the judiciary would substitute its own. If there be adherence to the rule of law, as there ought to be, the last offender should be courts of justice, to which rightly litigants submit their controversy precisely to maintain unimpaired the supremacy of legal norms and prescriptions. The attack on the validity of the challenged provision likewise insofar as there may be objections, even if valid and cogent, on its wisdom cannot be sustained." 18

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

WHEREFORE, the instant Petition is hereby dismissed.

No costs. SO ORDERED.

EN BANC
[G.R. No. 93100. June 19, 1997.] ATLAS FERTILIZER CORPORATION, petitioner, vs. THE HONORABLE SECRETARY OF THE DEPARTMENT OF AGRARIAN REFORM, respondent. [G.R. No. 97855. June 19, 1997.] PHILIPPINE FEDERATION OF FISHFARM PRODUCERS, INC., petitioner, vs. THE HONORABLE SECRETARY OF THE DEPARTMENT OF AGRARIAN REFORM, respondent. Roco Bunag Kapunan & Migallos for petitioners in G.R. No. 93100. Ernesto P. Pangalangan & Associates for petitioners in G.R. No. 97855. The Solicitor General for respondent. SYLLABUS 1.STATUTORY CONSTRUCTION; CONSTITUTIONALITY OF A LAW; DUTY OF THE COURT. While the Court will not hesitate to declare a law or an act void when confronted squarely with constitutional issues, neither will it preempt the Legislative and the Executive branches of the government in correcting or clarifying, by means of amendment, said law or act.
HSEcTC

2.ID.; ID.; QUESTION MADE MOOT AND ACADEMIC WITH THE PASSAGE OF LAW. On February 20,1995, Republic Act No. 7881 was approved by Congress. The provisions of R.A. No. 7881 expressly state that fishponds and prawn farms are excluded from the coverage of CARL. In view of the foregoing, the question concerning the constitutionality of the assailed provisions has become moot and academic with the passage of R.A. No. 7881.
aCITEH

RESOLUTION

ROMERO, J :
p

Before this Court are consolidated petitions questioning the constitutionality of some portions of Republic Act No. 6657 otherwise known as the Comprehensive Agrarian Reform Law. 1 Petitioners Atlas Fertilizer Corporation, 2 Philippine Federation of Fishfarm Producers, Inc. and petitioner-in-intervention Archie's Fishpond, Inc. and Arsenio Al. Acuna 3 are engaged in the aquaculture industry utilizing fishponds and prawn farms. They assail Sections 3 (b), 11, 13, 16 (d), 17 and 32 of R.A. 6657, as well as the implementing guidelines and procedures contained in Administrative Order Nos. 8 and 10 Series of 1988 issued by public respondent Secretary of the Department of Agrarian Reform as unconstitutional. Petitioners claim that the questioned provisions of CARL violate the Constitution in the following manner:
1.Sections 3 (b), 11, 13, 16 (d), 17 and 32 of CARL extend agrarian reform to aquaculture lands even as Section 4, Article XIII of the Constitution limits agrarian reform only to agricultural lands. 2.The questioned provisions similarly treat of aquaculture lands and agriculture lands when they are differently situated, and differently treat aquaculture lands and other industrial lands, when they are similarly situated in violation of the constitutional guarantee of the equal protection of the laws. 3.The questioned provisions distort employment benefits and burdens in favor of aquaculture employees and against other industrial workers even as Section 1 and 3, Article XIII of the Constitution mandate the State to promote equality in economic and employment opportunities. 4.The questioned provisions deprive petitioner of its government-induced investments in aquaculture even as Sections 2 and 3, Article XIII of the Constitution mandate the State to respect the freedom of enterprise and the right of enterprises to reasonable returns on investments and to expansion and growth.

The constitutionality of the above-mentioned provisions has been ruled upon in the case of Luz Farms, Inc. v. Secretary of Agrarian Reform 4 regarding the inclusion of land devoted to the raising of livestock, poultry and swine in its coverage. The issue now before this Court is the constitutionality of the same above-mentioned provisions insofar as they include in its coverage lands devoted to the aquaculture industry, particularly fishponds and prawn farms. In their first argument, petitioners contend that in the case of Luz Farms, Inc. v. Secretary of Agrarian Reform, 5 this Court has already ruled impliedly that lands devoted to fishing

are not agricultural lands. In aquaculture, fishponds and prawn farms, the use of land is only incidental to and not the principal factor in productivity and, hence, as held in "Luz Farms," they too should be excluded from R.A. 6657 just as lands devoted to livestock, swine, and poultry have been excluded for the same reason. They also argue that they are entitled to the full benefit of "Luz Farms" to the effect that only five percent of the total investment in aquaculture activities, fishponds, and prawn farms, is in the form of land, and therefore, cannot be classified as agricultural activity. Further, that in fishponds and prawn farms, there are no farmers, nor farm workers, who till lands, and no agrarian unrest, and therefore, the constitutionally intended beneficiaries under Section 4, Art. XIII, 1987 Constitution do not exist in aquaculture. In their second argument, they contend that R.A. 6657, by including in its coverage, the raising of fish and aquaculture operations including fishponds and prawn ponds, treating them as in the same class or classification as agriculture or farming violates the equal protection clause of the Constitution and is, therefore, void. Further, the Constitutional Commission debates show that the intent of the constitutional framers is to exclude "industrial" lands, to which category lands devoted to aquaculture, fishponds, and fish farms belong. Petitioners also claim that Administrative Order Nos. 8 and 10 issued by the Secretary of the Department of Agrarian Reform are, likewise, unconstitutional, as held in "Luz Farms," and are therefore void as they implement the assailed provisions of CARL. The provisions of CARL being assailed as unconstitutional are as follows:
(a)Section 3(b) which includes the "raising of fish in the definition of "Agricultural, Agricultural Enterprise or Agricultural Activity." (Emphasis Supplied) (b)Section 11 which defines "commercial farms" as private agricultural lands devoted to fishponds and prawn ponds . . ." (Emphasis Supplied) (c)Section 13 which calls upon petitioner to execute a production-sharing plan. (d)Section 16(d) and 17 which vest on the Department of Agrarian reform the authority to summarily determine the just compensation to be paid for lands covered by the comprehensive Agrarian Reform Law. (e)Section 32 which spells out the production-sharing plan mentioned in Section 13 ". . . (W)hereby three percent (3%) of the gross sales from the production of such lands are distributed within sixty (60) days at the end of the fiscal year as compensation to regular and other farmworkers in such lands over and above the compensation they currently receive:

Provided, That these individuals or entities realize gross sales in excess of five million pesos per annum unless the DAR, upon proper application, determines a lower ceiling.
cda

In the event that the individual or entity realizes a profit, an additional ten percent (10%) of the net profit after tax shall be distributed to said regular and other farmworkers within ninety (90) days of the end of the fiscal year. . . ."

While the Court will not hesitate to declare a law or an act void when confronted squarely with constitutional issues, neither will it preempt the Legislative and the Executive branches of the government in correcting or clarifying, by means of amendment, said law or act. On February 20, 1995, Republic Act No. 7881 6 was approved by Congress. Provisions of said Act pertinent to the assailed provisions of CARL are the following:
"Section 1.Section 3, Paragraph (b) of Republic Act No. 6657 is hereby amended to read as follows: "Sec. 3.Definitions. For the purpose of this Act, unless the context indicates otherwise: "(b)Agriculture, Agricultural Enterprise or Agricultural Activity means the cultivation of the soil, planting of crops, growing of fruit trees, including the harvesting of such farm products and other farm activities and practices performed by a farmer in conjunction with such farming operations done by persons whether natural or juridical." Sec. 2.Section 10 of Republic Act No. 6657 is hereby amended to read as follows: "Sec. 10.Exemptions and Exclusions. xxx xxx xxx "b)Private lands actually, directly and exclusively used for prawn farms and fishponds shall be exempt from the coverage of this Act: Provided, That said prawn farms and fishponds have not been distributed and Certificate of Land Ownership Award (CLOA) issued to agrarian reform beneficiaries under the Comprehensive Agrarian Reform Program. "In cases where the fishponds or prawn farms have been subjected to the Comprehensive Agrarian Reform Law, by voluntary offer to sell, or commercial farms deferment or notices of compulsory acquisition, a simple and absolute majority of the actual regular workers or tenants must consent to the exemption within one (1) year from the effectivity of this Act. When the workers or tenants do not agree to this exemption, the

fishponds or prawn farms shall be distributed collectively to the workerbeneficiaries or tenants who shall form a cooperative or association to manage the same. "In cases where the fishponds or prawn farms have not been subjected to the Comprehensive Agrarian Reform Law, the consent of the farm workers shall no longer be necessary, however, the provision of Section 32-A hereof on incentives shall apply." xxx xxx xxx Sec. 3.Section 11, Paragraph 1 is hereby amended to read as follows: "Sec. 11.Commercial Farming. Commercial farms, which are private agricultural lands devoted to saltbeds, fruit farms, orchards, vegetable and cut-flower farms, and cacao, coffee and rubber plantations, shall be subject to immediate compulsory acquisition and distribution after ten (10) years from the effectivity of this Act. In the case of new farms, the ten-year period shall begin from the first year of commercial production and operation, as determined by the DAR. During the ten-year period, the Government shall initiate steps necessary to acquire these lands, upon payment of just compensation for the land and the improvements thereon, preferably in favor of organized cooperatives or associations, which shall thereafter manage the said lands for the workersbeneficiaries."

Sec. 4.There shall be incorporated after Section 32 of Republic Act No. 6657 a section to read as follows: "Sec. 32-A.Incentives. Individuals or entities owning or operating fishponds and prawn farms are hereby mandated to execute within six (6) months from the effectivity of this Act, an incentive plan with their regular fishpond or prawn farm workers' organization, if any, whereby seven point five percent (7.5%) of their net profit before tax from the operation of the fishpond or prawn farms are distributed within sixty (60) days at the end of the fiscal year as compensation to regular and other pond workers in such ponds over and above the compensation they currently receive. "In order to safeguard the right of the regular fishpond or prawn farm workers under the incentive plan, the books of the fishpond or prawn owners shall be subject to periodic audit or inspection by certified public accountants chosen by the workers.

"The foregoing provision shall not apply to agricultural lands subsequently converted to fishponds or prawn farms provided the size of the land converted does not exceed the retention limit of the landowner."

The above-mentioned provisions of R.A. No. 7881 expressly state that fishponds and prawn farms are excluded from the coverage of CARL. In view of the foregoing, the question concerning the constitutionality of the assailed provisions has become moot and academic with the passage of R.A. No. 7881. WHEREFORE, the petition is hereby DISMISSED. SO ORDERED.

EN BANC
[G.R. No. 12834. October 10, 1917.] SEBASTIAN LOZANO, plaintiff-appellant, vs. CARMEN MARTINEZ and JOSE DE VEGA, defendants. CARMEN MARTINEZ, appellee. Chas. E. Tenney for appellant. Ramon Sotelo for appellee. SYLLABUS 1.HABEAS CORPUS; PETITION FOR WRIT BY FATHER, TO OBTAIN POSSESSION OF A CHILD UNDER TEN YEARS OF AGE, IN POSSESSION OF THE MOTHER. Where a husband and wife are living separate the question which one of them is entitled to the possession of their child under ten years of age is a matter within the sound discretion of the court, in accordance with the provisions of section 771 of Act No. 190.

DECISION

JOHNSON, J :
p

This was a petition for the writ of habeas corpus presented in the Court of First Instance of the City of Manila on the 2d day of February, 1917. Its purpose was to obtain the possession of a child of six and one-half years old. The record shows that the plaintiff Sebastian Lozano and the defendant Carmen Martinez were husband and wife; that the child in question was their child; that they were living separate; that sometime before the commencement of the present action the plaintiff had commenced a criminal action against the defendant and the said Jose de Vega for the crime of adultery; that said criminal action had been dismissed; that there was still pending an action by the defendant Carmen Martinez against the plaintiff Sebastian Lozano for the crime of libel; that the defendant Carmen Martinez had obtained possession of the child in question and had refused to deliver it to its father. The mother, Carmen Martinez, alleges and attempted to prove that prior to the time she took possession of said child, it was in the possession of its father; that its father was not able to give it the care and attention which a child of

tender years should have; that its father was not financially able to give the child the care and attention which it requires; that she was amply able to take care of the child, to furnish it food and clothing, and such other necessities which a child requires. After hearing the evidence adduced during the hearing on the petition for the writ of habeas corpus the Hon. James A. Ostrand, judge, in his decision, made the following statement:
"The respondent, Carmen Martinez, is the mother of the child, and pending divorce proceedings is living separate from her husband. While the proceedings adopted by the respondent mother to obtain possession of the child may be open to criticism, the court is nevertheless of the opinion that she is in a much better position to take care of the child than is the petitioner; and as the welfare of the child is the ruling consideration in providing for its custody, the discretion vested in the court by section 771 of the Code of Civil Procedure will in this instance be exercised in favor of the respondent."

Said section 771 provides, among other things, that, "When husband and wife are living separate and apart from each other, or are divorced, and the question as to the care, custody and control of the offspring of their marriage, is brought before a Court of First Instance, by petition or otherwise, or rises as an incident to any other proceeding, the father and mother of such offspring shall stand upon an equality before the court as to the care, custody and control of the offspring so far as it relates to their being either father or mother of the children. The court, upon hearing the testimony of either or both of said parents and such other testimony as the court deems pertinent, shall decide which one of them shall have the care, custody and control of such offspring, taking into account that which will be for the best interest of the children. Said section gives the court the right to decide which of the parents, when they are living separate, is entitled to the care and custody of their offspring when such offspring is under ten years of age. There is nothing in the record which shows that the lower court abused the discretion conferred upon it by said section 771. The evidence clearly shows that it is for the best interest of the child to allow the mother for the present to have the control over it. Therefore, the judgment of the lower court is hereby affirmed, with costs. So ordered. Arellano, C.J., Carson, Araullo, Street and Malcolm, JJ., concur.

EN BANC
[G.R. No. 15972. October 11, 1920.] KWONG SING, in his own behalf and in behalf of all others having a common or general interest in the subject- matter of this action, plaintiff-appellant, vs. THE CITY OF MANILA, defendant-appellant. G. E. Campbell for appellant. City Fiscal Diaz for appellee. SYLLABUS 1.PUBLIC CORPORATIONS; MUNICIPAL POLICE POWER; ORDINANCE NO. 682, CITY OF MANILA; LAUNDRIES; LAUNDRY RECEIPTS IN ENGLISH AND SPANISH. The government of the city of Manila possesses the power to enact Ordinance No. 532, requiring receipts in duplicate in English and Spanish duly signed showing the kind and number of articles delivered by laundries and dyeing and cleaning establishments. As said ordinance is neither oppressive, nor unequal, nor unjust, it is valid. 2.ID.; ID.; ID.; ID.; ID.; "REGULATE," CONSTRUED. The word "regulate," as used in subsection (1), section 2444, of the Administrative Code, means and includes the power to control, to govern, and to restrain; but "regulate" should not be construed as synonymous with suppress" or "prohibit." 3.ID,; ID.; ID.; ID.; ID.; ID. Under the power to regulate laundries, the municipal authorities can make proper police regulations as to the mode in which the employment or business shall be exercised. 4.ID.; TD.; ID.; ID.; ID.; PURPOSE-The object of the ordinance was the promotion of peace and good order and the prevention of fraud, deceit, cheating, and imposition. The convenience of the public would also be served in a community where there is a Babel of tongues by having receipts made out in the two official languages. 5.ID.; ID.; ID.; ID.; ID.; ID. Reasonable restraints of a lawful business for such purposes are permissible under the police power. 6.ID.; ID.; ID.; ID.; ID.; RULES DETERMINING VALIDITY. It is a familiar legal principle that an ordinance must be reasonable. Not only must it appear that the interest of the public generally require an interference with private rights, but

the means adopted must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. 7.ID.; ID.; ID.; ID.; ID.; ID. If the ordinance appears to the judicial mind to be partial or oppressive, it must be declared invalid. 8.ID.; ID.; ID.; ID.; ID.; ID. The presumption is that the municipal authorities, in enacting the ordinance, did so with a rational and conscientious regard for the rights of the individual and of the community. 9ID.; ID.; ID.; ID.; ID.; ID. Even if private rights of person or property are subjected to restraint, and even if loss will result to individuals from the enforcement of the ordinance, this is not sufficient ground for failing to uphold the hands of the legislative body. 10.ID.; ID.; ID.; ID.; ID.; YOUNG vs. RAFFERTY, DISTINGUISHED. There is no analogy between the instant case and the former one of Young vs. Rafferty ([1916], 33 Phil., 556). 11.ID.; INJUNCTION; VALIDITY OF AN ORDINANCE. The validity of a municipal ordinance can be determined on a complaint for an injunction where it is apparent that irreparable injury is impending, that a multiplicity of suits is threatened, and that complainants have no other plain, speedy, and adequate remedy. 12.ID.; ID.; RESTRAINING CRIMINAL PROSECUTIONS. As a general rule, an injunction will not be granted to restrain a criminal prosecution. 13.CONSTITUTIONAL LAW; DUE PROCESS OF LAW AND EQUAL PROTECTION OF THE LAWS; RIGHTS OF CHINESE ALIENS. The rights of Chinese laundrymen are not less because they may be aliens. The life, liberty, or property of these persons cannot be taken without due process of law; they are entitled to the equal protection of the laws without regard to their race; and treaty rights, as effectuated between the United States and China, must be accorded them.

DECISION

MALCOLM, J :
p

The validity of Ordinance No. 532 of the city of Manila requiring receipts in duplicate in English and Spanish duly signed showing the kind and number of articles delivered by laundries and dyeing and cleaning establishments, must be decided on this appeal. The ordinance in question reads as follows:
"[ORDINANCE No. 532.]

"AN ORDINANCE REGULATING THE DELIVERY AND RETURN OF CLOTHES OR CLOTHS DELIVERED TO BE WASHED IN LAUNDRIES, DYEING AND CLEANING ESTABLISHMENTS. "Be it ordained by the Municipal Board of the city of Manila, that: "SECTION 1.Every person, firm or corporation in the city of Manila engaged in laundering, dyeing, or cleaning by any process, cloths, or clothes for compensation, shall issue to the person from whom cloths or clothes to be washed dyed, or cleaned are received a receipt in duplicate, in English and Spanish, duly signed, showing the kind and number of articles delivered, and the duplicate copy of the receipt shall be kept by the owner of the establishment or person issuing same. This receipt shall be substantially of the following form: "No. _________ "NAME OF THE ESTABLISHMENT. "PLACE OF SAME. "MANILA, ________, 19 _____ "Received of Mr. ______________________________________ (Name.) ______________________ the following articles delivered. (Residence) to me to be ___________________ (Washed, cleaned. ordered.) "______________________________ "______________________________ "______________________________ "______________________________ "These articles will have been ____________________ and
(Cleaned, washed or dyed.)

may be taken at _______m. on the ______ day of __________ 19 _______ upon payment of P _______ the amount of compensation for the work done.

"_____________________ (Owner or person in charge.)

"Provided, however, That in case the articles to be delivered are so many that it will take much time to classify them, the owner of the establishment, through the consent of the person delivering them, may be excused from specifying in the receipt the kinds of such articles, but he shall state therein only the total number of the articles so received. "SEC. 2.No person shall take away any cloths or clothes delivered to a person, firm, or corporation, mentioned in the preceding section, to be washed, dyed or cleaned, unless he returns the receipt issued by such person, firm, or corporation. "SEC. 3.Violation of any of the provisions of this ordinance shall be punished by a fine of not exceeding twenty pesos. "SEC. 4.This Ordinance shall take effect on its approval. "Approved, February 25, 1919."

In the lower court, the prayer of the complaint was for a preliminary injunction, afterwards to be made permanent, prohibiting the city of Manila from enforcing Ordinance No. 532, and for a declaration by the court that the said ordinance was null and void. The preliminary injunction was granted. But the permanent injunction was not granted for, after trial, the judgment was, that the petitioner take nothing by his action, without special finding as to costs. From this judgment plaintiff has appealed, assigning two errors as having been committed by the trial court, both intended to demonstrate that Ordinance No. 532 is invalid. The government of the city of Manila possesses the power to enact Ordinance No. 532. Section 2444, paragraphs (l) and (ee) of the Administrative Code, as amended by Act No. 2774, section 8, authorizes the municipal board of the city of Manila, with the approval of the mayor of the city:
"(l)To regulate and fix the amount of the license fees for the following: . . . laundries . . . " "(ee)To enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance of the prosperity, and the promotion of the morality, peace, good order, comfort, convenience, and general welfare of the city and its inhabitants, and such others as may be necessary to carry into effect and discharge the powers and duties conferred by this chapter. . . ."

The word "regulate", as used in subsection (l), section 2444 of the Administrative Code, means and includes the power to control, to govern, and to restrain; but "regulate" should not be construed as synonymous with "suppress" or "prohibit." Consequently, under the power to regulate laundries, the municipal

authorities could make proper police regulations as to the mode in which the employment or business shall be exercised. And, under the general welfare clause (subsection [ee], section 2444 of the Manila Charter),the business of laundries and dyeing and cleaning establishments could be regulated, as this term is above construed, by an ordinance in the interest of the public health, safety, morals, peace, good order, comfort, convenience, prosperity, and the general welfare. The purpose of the municipal authorities in adopting the ordinance is fairly evident. Ordinance No. 532 was enacted, it is said, to avoid disputes between laundrymen and their patrons and to protect customers of laundries who are not able to decipher Chinese characters from being defrauded. The object of the ordinance was, accordingly, the promotion of peace and good order and the prevention of fraud, deceit, cheating, and imposition. The convenience of the public would also presumably be served in a community where there is a Babel of tongues by having receipts made out in the two official languages. Reasonable restraints of a lawful business for such purposes are permissible under the police power. The legislative body is the best judge of whether or not the means adopted are adequate to accomplish the ends in view. Chinese laundrymen are here the protestants. Their rights, however, are not less because they may be Chinese aliens. The life, liberty, or property of these persons cannot be taken without due process of law; they are entitled to the equal protection of the laws without regard to their race; and treaty rights, as effectuated between the United States and China, must be accorded them With this premises conceded, appellant's claim is that Ordinance No. 532 savors of class legislation; that it unjustly discriminates between persons in similar circumstances; that it constitutes an arbitrary infringement of property rights. To an extent, the evidence for the plaintiffs substantiated their claims. There are, in the city of Manila, more than forty Chinese laundries (fifty-two, according to the Collector of Internal Revenue). The laundrymen and employees in Chinese laundries do not, as a rule, speak, read, and write English or Spanish. Some of them are, however, able to write and read numbers. Plaintiff's contention is also that the ordinance is invalid, because it is arbitrary, unreasonable, and not justified under the police power of the city. It is, of course, a familiar legal principle that an ordinance must be reasonable. Not only must it appear that the interest of the public generally require an interference with private rights but the means adopted must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. If the ordinance appears to the judicial mind to be partial or oppressive, it must be declared invalid. The presumption is, however, that the municipal authorities, in enacting the ordinance, did so with a rational and conscientious regard for the rights of the individual and of the community.

Up to this point, propositions and facts have been stated which are hardly debatable. The trouble comes in the application of well-known legal rules to individual cases. Our view, after most thoughtful consideration, is, that the ordinance invades no fundamental right, and impairs no personal privilege. Under the guise of police regulation, an attempt is not made to violate personal or property rights. The ordinance is neither discriminatory nor unreasonable in its operation It applies to all public laundries without distinction, whether they belong to Americans, Filipinos, Chinese, or any other nationality. All, without exception, and each and everyone of them without distinction, must comply with the ordinance. There is no privilege, no discrimination, no distinction. Equally and uniformly the ordinance applies to all engaged in the laundry business, and, as nearly as may be, the same burdens are cast upon them. The oppressiveness of the ordinance may have been somewhat exaggerated. The printing of the laundry receipts need not be expensive. The names of the several kinds of clothing may be printed in English and Spanish with the equivalent in Chinese below. With such knowledge of English and Spanish as laundrymen and their employees now possess, and, certainly, at least one person in every Chinese laundry must have a vocabulary of a few words, and with ability to read and write arabic numbers, no great difficulty should be experienced, especially after some practice, in preparing the receipts required by Ordinance No. 532. It may be conceded that an additional burden will be imposed on the business and occupation affected by the ordinance. Yet, even if private rights of person or property are subjected to restraint, and even if loss will result to individuals from the enforcement of the ordinance, this is not sufficient ground for failing to uphold the hands of the legislative body. The very foundation of the police power is the control of private interests for the public welfare. Numerous authorities are brought to our attention Many of these cases concern laundries and find their origin in the State of California. We have examined them all and find none which impel us to hold Ordinance No. 532 invalid. Not here, as in the leading decision of the United States Supreme Court, which had the effect of nullifying an ordinance of the City and Country of San Francisco, California, can there be any expectation that the ordinance will be administered by public authority "with an evil eye and an unequal hand." (Yick Wo vs. Hopkins [1886], 118 U. S., 356, which compare with Barbier vs. Connolly [1884], 113 U. S., 27.) There is no analogy between the instant case and the former one of Young vs. Rafferty ( [1916], 33 Phil., 556). The holding there was that the Internal Revenue Law did not empower the Collector of Internal Revenue to designate the language in which the entries in books shall be made by merchants subject to the percentage tax. In the course of the decision, the following remark was interpolated: "In reaching this conclusion, we have carefully avoided using any language which would indicate our views upon the plaintiffs' second proposition to the effect that if the regulation were

an Act of the Legislature itself, it would be invalid as being in conflict with the paramount law of the land and treaties regulating certain relations with foreigners." There, the action was taken by means of administrative regulation; here, by legislative enactment. There, authority was rested on specific delegated powers; here, on both specific power and the all-pervading police power. There, governmental convenience was the aim; here, the public welfare. We are convinced that the same justices who participated in the decision in Young vs. Rafferty [supra] would now agree with the conclusion toward which we are tending. Our holding is, that the government of the city of Manila had the power to enact Ordinance No. 532 and that as said ordinance is found not to be oppressive, nor unequal, nor unjust, it is valid. This statement disposes of both assignments of error, for the impropriety of the question answered by a witness for the defense over the objection of plaintiff's attorney can be conceded without affecting the result. After the case was submitted to this court, counsel for appellants asked that a preliminary injunction issue, restraining the defendant or any of its officers from enforcing Ordinance No. 532, pending decision. It was perfectly proper for the trial and appellate courts to determine the validity of the municipal ordinance on a complaint for an injunction, since it was very apparent that irreparable injury was impending, that a multiplicity of suits was threatened, and that complainants had no other plain, speedy, and adequate remedy. But finding that the ordinance is valid, the general rule to the effect that an injunction will not be granted to restrain a criminal prosecution should be followed. Judgment is affirmed, and the petition for a preliminary injunction is denied, with costs against the appellants. So ordered.

EN BANC
[G.R. No. 78164. July 31, 1987.] TERESITA TABLARIN, MA. LUZ CIRIACO, MA. NIMFA B. ROVIRA, EVANGELINA S. LABAO, in their behalf and in behalf of applicants for admission into the Medical Colleges during the school year 1987-88 and future years who have not taken or successfully hurdled the National Medical Admission Test (NMAT) petitioners, vs. THE HONORABLE JUDGE ANGELINA S. GUTIERREZ, Presiding Judge of Branch XXXVII of the Regional Trial Court of the National Capital Judicial Region with seat at Manila, THE HONORABLE SECRETARY LOURDES QUISUMBING, in her capacity as Chairman of the BOARD OF MEDICAL EDUCATION, and THE CENTER FOR EDUCATIONAL MEASUREMENT (CEM), respondents. SYLLABUS 1.CONSTITUTIONAL LAW; DECLARATION OF UNCONSTITUTIONALITY OF STATUTE AND ADMINISTRATIVE ORDER; BURDEN OF PROOF TO BE DISCHARGED; CASE AT BAR. Article II of the 1987 Constitution sets forth in its second half certain "State policies" which the government is enjoined to pursue and promote. The petitioners here have not seriously undertaken to demonstrate to what extent or in what manner the statute and the administrative order they assail collide with the State policies embodied in Sections 11, 13 and 17. They have not, in other words, discharged the burden of proof which lies upon them. This burden is heavy enough where the constitutional provision invoked is relatively specific, rather than abstract, in character and cast in behavioral or operational terms. That burden of proof becomes of necessity heavier where the constitutional provision invoked is cast, as the second portion of Article II is cast, in language descriptive of basic policies, or more precisely, of basic objectives of State policy and therefore highly generalized in tenor. The petitioners have not made their case, even a prima facie case, and we are not compelled to speculate and to imagine how the legislation and regulation impugned as unconstitutional could possibly offend the constitutional provisions pointed to by the petitioners. Turning to Article XIV, Section 1, of the 1987 Constitution, we note that once more petitioners have failed to demonstrate that the statute and regulation they assail in fact clash with that provision. On the contrary we may note in anticipation of discussion infra - that the statute and the regulation which petitioners attack are in fact designed to promote "quality education" at the level of professional schools. When one reads Section 1 in relation to Section 5 (3) of Article XIV as one must one cannot but note that the latter phrase

of Section 1 is not to be read with absolute literalness. The State is not really enjoined to take appropriate steps to make quality education "accessible to all who might for any number of reasons wish to enroll in a professional school but rather merely to make such education accessible to all who qualify under "fair, reasonable and equitable admission and academic requirements." 2.ID.; CONSTITUTIONALITY ESSENTIALLY A QUESTION OF POWER OR AUTHORITY; QUESTIONS AS TO DESIRABILITY, WISDOM OR UTILITY OF LEGISLATION OR ADMINISTRATIVE REGULATION PROPERLY ADDRESSED TO POLITICAL DEPARTMENTS OF GOVERNMENT. The petitioners also urge that the NMAT prescribed in MECS Order No. 52, s. 1985, is an "unfair, unreasonable and inequitable requirement," which results in a denial of due process. Again, petitioners have failed to specify just what factors or features of the NMAT render it "unfair" and "unreasonable" or "inequitable." They appear to suggest that passing the NMAT is an unnecessary requirement when added on top of the admission requirements set out in Section 7 of the Medical Act of 1959, and other admission requirements established by internal regulations of the various medical schools, public or private. Petitioners arguments thus appear to relate to utility and wisdom or desirability of the NMAT requirement. But constitutionality is essentially a question of power or authority: this Court has neither commission or competence to pass upon questions of the desirability or wisdom or utility of legislation or administrative regulation. Those questions must be addressed to the political departments of the government not to the courts. 3.ID.; PRINCIPLE OF NON-DELEGATION OF LEGISLATIVE POWER; APPLIED WITH CIRCUMSPECTION WHERE STATUTES DEAL WITH COMPLEX AND TECHNICAL SUBJECTS; PRINCIPLE OF SUBORDINATE LEGISLATION; STANDARDS SET FOR SUBORDINATE LEGISLATION NECESSARILY BROAD AND HIGHLY ABSTRACT. The general principle of non-delegation of legislative power, which both flows from the reinforces the more fundamental rule of the separation and allocation of powers among the three great departments of government, must be applied with circumspection in respect of statutes which like the Medical Act of 1959, deal with subjects as obviously complex and technical as medical education and the practice of medicine in our present day world. Mr. Justice Laurel stressed this point 47 years ago in Pangasinan Transportation Co., Inc. vs. The Public Service Commission: "One thing, however, is apparent in the development of the principle of separation of powers and that is that the maxim of delegatus non potest delegare or delegati potestas non potest delegare, adopted this practice (Delegibus et Consuetudiniis Anglia edited by G.E. Woodbine, Yale University Press, 1922, Vol. 2, p. 167) but which is also recognized in principle in the Roman Law (d.17.18,3) has been made to adapt itself to the complexities of modern government, giving rise to the adoption, within certain limits, of the principle of 'subordinate legislation,' not only in the United States and England but in practically all modern governments. (People vs. Rosenthal and Osmena [68 Phil. 318,

1939]. Accordingly, with the growing complexity of modern life, the multiplication of the subjects of governmental regulation, and the increased difficulty of administering the laws, there is a constantly growing tendency toward the delegation of greater power by the legislature, and toward the approval of the practice by the courts." The standards set for subordinate legislation in the exercise of rule making authority by an administrative agency like the Board of Medical Education are necessarily broad and highly abstract. As explained by then Mr. Justice Fernando in Edu v. Ericta "The standard may be either expressed or implied. If the former, the non-delegation objection is easily met. The standard though does not have to be spelled out specifically. It could be implied from the policy and purpose of the act considered as a whole. In the Reflector Law, clearly the legislative objective is public safety. What is sought to be attained as in Calalang v. Williams is 'safe transit upon the roads.'" We believe and so hold that the necessary standards are set forth in Section 1 of the 1959 Medical Act: "the standardization and regulation of medical education" and in Section 5 (a) and 7 of the same Act, the body of the statute itself, and that these considered together are sufficient compliance with the requirements of the non-delegation principle. 4.ID.; POLICE POWER; NATURE AND OBJECTIVE; REGULATION OF PRACTICE OF MEDICINE INCLUDING ADMISSION TO RANKS OF AUTHORIZED PRACTITIONERS A VALID EXERCISE THEREOF. There is another reason why the petitioners' arguments must fail: the legislative and administrative provisions impugned by them constitute, to the mind of the Court, a valid exercise of the police power of the state. The police power, it is commonplace learning, is the pervasive and non-waivable power and authority of the sovereign to secure and promote all the important interests and needs in a word, the public order of the general community. An important component of that public order is the health and physical safety and well being of the population, the securing of which no one can deny is a legitimate objective of governmental effort and regulation. Perhaps the only issue that needs some consideration is whether there is some reasonable relation between the prescribing of passing the NMAT as a condition for admission to medical school on the one hand, and the securing of the health and safety of the general community, on the other hand. This question is perhaps most usefully approached by recalling that the regulation of the practice of medicine in all its branches has long been recognized as a reasonable method of protecting the health and safety of the public. That the power to regulate and control the practice of medicine includes the power to regulate admission to the ranks of those authorized to practice medicine, is also well recognized. Thus, legislation and administrative regulations requiring those who wish to practice medicine first to take and pass medical board examinations have long ago been recognized as valid exercises of governmental power. Similarly, the establishment of minimum medical educational requirements i.e., the completion of prescribed courses in a recognized medical school for admission to the medical profession, has also been sustained as a legitimate exercise of the regulatory authority of the state.

5.ID.; ID.; ID.; ID.; CASE AT BAR. What we have before us in the instant case is closely related; the regulation of access to medical schools. MECS Order No. 52, s. 1985, as noted earlier, articulates the rationale of regulation of this type: the improvement of the professional and technical quality of the graduates of medical schools, by upgrading the quality of those admitted to the student body of the medical schools. That upgrading is sought by selectivity in the process of admission, selectivity consisting, among other things, of limiting admission to those who exhibit in the required degree the aptitude for medical studies and eventually for medical practice. The need to maintain, and the difficulties of maintaining, high standards in our professional schools in general, and medical schools in particular, in the current stage of our social and economic development, are widely known. We believe that the government is entitled to prescribe an admission test like the NMAT as a means for achieving its stated objective of "upgrading the selection of applicants into [our] medical schools" and of "improv[ing] the quality of medical education in the country." Given the widespread use today of such admission tests in, for instance, medical schools in the United States of America (the Medical College Admission Test [MCAT] and quite probably in other countries with far more developed educational resources than our own, and taking into account the failure or inability of the petitioners to even attempt to prove otherwise, we are entitled to hold that the NMAT is reasonably related to the securing of the ultimate end of legislation and regulation in this area. That end, it is useful to recall, is the protection of the public from the potentially deadly effects of incompetence and ignorance in those who would undertake to treat our bodies and minds for disease or trauma. 6.ID.; BILL OF RIGHTS; EQUAL PROTECTION OF THE LAWS; NOT VIOLATED BY MECS ORDER NO. 52, S. 1985. Petitioners have contended, finally, that MECS Order No. 52, s. 1985, is in conflict with the equal protection clause of the Constitution. More specifically, petitioners assert that portion of the MECS Order which provides that "the cutoff score for the successful applicants, based on the scores on the NMAT, shall be determined every year by the Board of Medical Education after consultation with the Association of Philippine Medical Colleges" infringes the requirements of equal protection. They assert, in other words, that students seeking admission during a given school year. e.g., 1987-1988, when subjected to a different cutoff score than that established for an, e.g., earlier school year, are discriminated against and that this renders the MECS Order "arbitrary and capricious." The force of this argument is more apparent than real. Different cutoff scores for different school years may be dictated by differing conditions obtaining during those years. Thus, the appropriate cutoff score for a given year may be a function of such factors as the number of students who have reached the cutoff score established the preceding year; the number of places available in medical schools during the current year; the average score attained during the current year; the level of difficulty of the test given during the current year, and so forth. To establish a

permanent and immutable cutoff score regardless of changes in circumstances from year to year, may well result in an unreasonable rigidity. The above language in MECS Order No. 52, far from being arbitrary or capricious, leaves the Board of Medical Education with the measure of flexibility needed to meet circumstances as they change.

DECISION

FELICIANO, J :
p

The petitioners sought admission into colleges or schools of medicine for the school year 1987-1988. However, the petitioners either did not take or did not successfully take the National Medical Admission Test (NMAT) required by the Board of Medical Education, one of the public respondents, and administered by the private respondent, the Center for Educational Measurement (CEM). On 5 March 1987, the petitioners filed with the Regional Trial Court, National Capital Judicial Region, a Petition for Declaratory Judgment and Prohibition with a prayer for Temporary Restraining Order and Preliminary Injunction. The petitioners sought to enjoin the Secretary of Education, Culture and Sports, the Board of Medical Education and the Center for Educational Measurement from enforcing Section 5 (a) and (f) of Republic Act No. 2382, as amended, and MECS Order No. 52, series of 1985, dated 23 August 1985 and from requiring the taking and passing of the NMAT as a condition for securing certificates of eligibility for admission, from proceeding with accepting applications for taking the NMAT and from administering the NMAT as scheduled on 26 April 1987 and in the future. After hearing on the petition for issuance of preliminary injunction, the trial court denied said petition on 20 April 1987. The NMAT was conducted and administered as previously scheduled. Petitioners accordingly filed this Special Civil Action for Certiorari with this Court to set aside the Order of the respondent judge denying the petition for issuance of a writ of preliminary injunction. Republic Act 2382, as amended by Republic Acts Nos. 4224 and 5946, known as the "Medical Act of 1959" defines its basic objectives in the following manner:
"SECTION 1.Objectives. This Act provides for and shall govern (a) the standardization and regulation of medical education; (b) the examination for registration of physicians; and (c) the supervision,

control and regulation of the practice of medicine in the Philippines." (Emphasis supplied)

The statute, among other things, created a Board of Medical Education which is composed of (a) the Secretary of Education, Culture and Sports or his duly authorized representative, as Chairman; (b) the Secretary of Health or his duly authorized representative; (c) the Director of Higher Education or his duly authorized representative; (d) the Chairman of the Medical Board or his duly authorized representative; (e) a representative of the Philippine Medical Association; (f) the Dean of the College of Medicine, University of the Philippines; (g) a representative of the Council of Deans of Philippine Medical Schools; and (h) a representative of the Association of Philippine Medical Colleges, as members. The functions of the Board of Medical Education specified in Section 5 of the statute include the following:
LLphil

"(a)To determine and prescribe requirements for admission into a recognized college of medicine; (b)To determine and prescribe requirements for minimum physical facilities of colleges of medicine, to wit: buildings, including hospitals, equipment and supplies, apparatus, instruments, appliances, laboratories, bed capacity for instruction purposes, operating and delivery rooms, facilities for outpatient services, and others, used for didactic and practical instruction in accordance with modern trends; (c)To determine and prescribe the minimum number and minimum qualifications of teaching personnel, including student-teachers ratio; (d)To determine and prescribe the minimum required curriculum leading to the degree of Doctor of Medicine; (e)To authorize the implementation of experimental medical curriculum in a medical school that has exceptional faculty and instrumental facilities. Such an experimental curriculum may prescribe admission and graduation requirements other than those prescribed in this Act; Provided, That only exceptional students shall be enrolled in the experimental curriculum; (f)To accept applications for certification for admission to a medical school and keep a register of those issued said certificate; and to collect from said applicants the amount of twenty-five pesos each which shall accrue to the operating fund of the Board of Medical Education; (g)To select, determine and approve hospitals or some departments of the hospitals for training which comply with the minimum specific physical facilities as provided in subparagraph (b) hereof; and (h)To promulgate and prescribe and enforce the necessary rules and regulations for the proper implementation of the foregoing functions." (Emphasis supplied).

Section 7 prescribes certain minimum requirements for applicants to medical schools:

"Admission requirements. The medical college may admit any student who has not been convicted by any court of competent jurisdiction of any offense involving moral turpitude and who presents (a) a record of completion of a bachelor's degree in science or arts; (b) a certificate of eligibility for entrance to a medical school from the Board of Medical Education; (c) a certificate of good moral character issued by two former professors in the college of liberal arts; and (d) birth certificate. Nothing in this act shall be construed to inhibit any college of medicine from establishing, in addition to the preceding, other entrance requirements that may be deemed admissible. . . ."(Emphasis supplied)

MECS Order No. 52, s. 1985, issued by the then Minister of Education, Culture and Sports and dated 23 August 1985, established a uniform admission test called the National Medical Admission Test (NMAT) as an additional requirement for issuance of a certificate of eligibility for admission into medical schools of the Philippines, beginning with the school year 1986-1987. This Order goes on to state that:
"2.The NMAT, an aptitude test, is considered as an instrument toward upgrading the selection of applicants for admission into the medical schools and its calculated to improve the quality of medical education in the country. The cutoff score for the successful applicants, based on the scores on the NMAT, shall be determined every year by the Board of Medical Education after consultation with the Association of Philippine Medical Colleges. The NMAT rating of each applicant, together with the other admission requirements as presently called for under existing rules, shall serve as a basis for the issuance of the prescribed certificate of eligibility for admission into the medical colleges. 3.Subject to the prior approval of the Board of Medical Education, each medical college may give other tests for applicants who have been issued a corresponding certificate of eligibility for admission that will yield information on other aspects of the applicant's personality to complement the information derived from the NMAT. xxx xxx xxx 8.No applicant shall be issued the requisite Certificate of Eligibility for Admission (CEA), or admitted for enrollment as first year student in any medical college, beginning the school year, 1986- 87, without the required NMAT qualification as called for under this Order." (Emphasis supplied)

Pursuant to MECS Order No. 52, s. 1985, the private respondent Center conducted NMATs for entrance to medical colleges during the school year 1986-

1987. In December 1986 and in April 1987, respondent Center conducted the NMATs for admission to medical colleges during the school year 1987-1988.

prcd

Petitioners raise the question of whether or not a writ of preliminary injunction may be issued to enjoin the enforcement of Section 5 (a) and (f) of Republic Act No. 2382, as amended, and MECS Order No. 52, s. 1985, pending resolution of the issue of constitutionality of the assailed statute and administrative order. We regard this issue as entirely peripheral in nature. It scarcely needs documentation that a court would issue a writ of preliminary injunction only when the petitioner assailing a statute or administrative order has made out a case of unconstitutionality strong enough to overcome, in the mind of the judge, the presumption of constitutionality, aside from showing a clear legal right to the remedy sought. The fundamental issue is of course the constitutionality of the statute or order assailed. 1.The petitioners invoke a number of provisions of the 1987 Constitution which are, in their assertion, violated by the continued implementation of Section 5 (a) and (f) of Republic Act 2381, as amended, and MECS Order No. 52, s. 1985. The provisions invoked read as follows:
(a)Article II, Section 11: "The state values the dignity of every human person and guarantees full respect of human rights. "(b)Article II, Section 13: "The State recognizes the vital role of the youth in nation building and shall promote and protect their physical, moral, spiritual, intellectual and social well being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs. "(c)Article II, Section 17: "The State shall give priority to education, science and technology, arts, culture and sports to foster patriotism and nationalism, accelerate social progress and to promote total human liberation and development. "(d)Article XIV, Section 1: "The State shall protect and promote the right of all citizens to quality education at all levels and take appropriate steps to make such education accessible to all. "(e)Article XIV, Section 5 (3): "Every citizen has a right to select a profession or course of study, subject to fair, reasonable and equitable admission and academic requirements."

Article II of the 1987 Constitution sets forth in its second half certain "State policies" which the government is enjoined to pursue and promote. The petitioners here have not seriously undertaken to demonstrate to what extent or in what manner the statute and the administrative order they assail collide with the State policies embodied in Sections 11, 13 and 17. They have not, in other words, discharged the burden of proof which lies upon them. This burden is

heavy enough where the constitutional provision invoked is relatively specific, rather than abstract, in character and cast in behavioral or operational terms. That burden of proof becomes of necessity heavier where the constitutional provision invoked is cast, as the second portion of Article II is cast, in language descriptive of basic policies, or more precisely, of basic objectives of State policy and therefore highly generalized in tenor. The petitioners have not made their case, even a prima facie case, and we are not compelled to speculate and to imagine how the legislation and regulation impugned as unconstitutional could possibly offend the constitutional provisions pointed to by the petitioners. Turning to Article XIV, Section 1, of the 1987 Constitution, we note that once more petitioners have failed to demonstrate that the statute and regulation they assail in fact clash with that provision. On the contrary we may note - in anticipation of discussion infra that the statute and the regulation which petitioners attack are in fact designed to promote "quality education" at the level of professional schools. When one reads Section 1 in relation to Section 5 (3) of Article XIV as one must one cannot but note that the latter phrase of Section 1 is not to be read with absolute literalness. The State is not really enjoined to take appropriate steps to make quality education "accessible to all who might for any number of reasons wish to enroll in a professional school but rather merely to make such education accessible to all who qualify under "fair, reasonable and equitable admission and academic requirements." 2.In the trial court, petitioners had made the argument that Section 5 (a) and (f) of Republic Act No. 2382, as amended, offend against the constitutional principle which forbids the undue delegation of legislative power, by failing to establish the necessary standard to be followed by the delegate, the Board of Medical Education. The general principle of non-delegation of legislative power, which both flows from the reinforces the more fundamental rule of the separation and allocation of powers among the three great departments of government, 1 must be applied with circumspection in respect of statutes which like the Medical Act of 1959, deal with subjects as obviously complex and technical as medical education and the practice of medicine in our present day world. Mr. Justice Laurel stressed this point 47 years ago in Pangasinan Transportation Co., Inc. vs. The Public Service Commission: 2
"One thing, however, is apparent in the development of the principle of separation of powers and that is that the maxim of delegatus non potest delegare or delegati potestas non potest delegare, adopted this practice (Delegibus et Consuetudiniis Anglia edited by G.E. Woodbine, Yale University Press, 1922, Vol. 2, p. 167) but which is also recognized in principle in the Roman Law (d.17.18,3) has been made to adapt itself to the complexities of modern government, giving rise to the adoption, within certain limits, of the principle of 'subordinate legislation,' not only in the United States and England but in practically all modern governments. (People vs. Rosenthal and Osmena [68 Phil. 318, 1939]. Accordingly, with the growing

complexity of modern life, the multiplication of the subjects of governmental regulation, and the increased difficulty of administering the laws, there is a constantly growing tendency toward the delegation of greater power by the legislature, and toward the approval of the practice by the courts." 3

The standards set for subordinate legislation in the exercise of rule making authority by an administrative agency like the Board of Medical Education are necessarily broad and highly abstract. As explained by then Mr. Justice Fernando in Edu v. Ericta 4
"The standard may be either expressed or implied. If the former, the nondelegation objection is easily met. The standard though does not have to be spelled out specifically. It could be implied from the policy and purpose of the act considered as a whole. In the Reflector Law, clearly the legislative objective is public safety. What is sought to be attained as in Calalang v. Williams is 'safe transit upon the roads.'" 5

We believe and so hold that the necessary standards are set forth in Section 1 of the 1959 Medical Act: "the standardization and regulation of medical education" and in Section 5 (a) and 7 of the same Act, the body of the statute itself, and that these considered together are sufficient compliance with the requirements of the non-delegation principle.
LLphil

3.The petitioners also urge that the NMAT prescribed in MECS Order No. 52, s. 1985, is an "unfair, unreasonable and inequitable requirement," which results in a denial of due process. Again, petitioners have failed to specify just what factors or features of the NMAT render it "unfair" and "unreasonable" or "inequitable." They appear to suggest that passing the NMAT is an unnecessary requirement when added on top of the admission requirements set out in Section 7 of the Medical Act of 1959, and other admission requirements established by internal regulations of the various medical schools, public or private. Petitioners arguments thus appear to relate to utility and wisdom or desirability of the NMAT requirement. But constitutionality is essentially a question of power or authority: this Court has neither commission or competence to pass upon questions of the desirability or wisdom or utility of legislation or administrative regulation. Those questions must be addressed to the political departments of the government not to the courts. There is another reason why the petitioners' arguments must fail: the legislative and administrative provisions impugned by them constitute, to the mind of the Court, a valid exercise of the police power of the state. The police power, it is commonplace learning, is the pervasive and non-waivable power and authority of the sovereign to secure and promote all the important interests and needs in a word, the public order of the general community. 6 An important component of that public order is the health and physical safety and well being of the population, the securing of which no one can deny is a legitimate objective of governmental effort and regulation. 7

Perhaps the only issue that needs some consideration is whether there is some reasonable relation between the prescribing of passing the NMAT as a condition for admission to medical school on the one hand, and the securing of the health and safety of the general community, on the other hand. This question is perhaps most usefully approached by recalling that the regulation of the practice of medicine in all its branches has long been recognized as a reasonable method of protecting the health and safety of the public. 8 That the power to regulate and control the practice of medicine includes the power to regulate admission to the ranks of those authorized to practice medicine, is also well recognized. Thus, legislation and administrative regulations requiring those who wish to practice medicine first to take and pass medical board examinations have long ago been recognized as valid exercises of governmental power. 9 Similarly, the establishment of minimum medical educational requirements i.e., the completion of prescribed courses in a recognized medical school for admission to the medical profession, has also been sustained as a legitimate exercise of the regulatory authority of the state. 10 What we have before us in the instant case is closely related; the regulation of access to medical schools. MECS Order No. 52, s. 1985, as noted earlier, articulates the rationale of regulation of this type: the improvement of the professional and technical quality of the graduates of medical schools, by upgrading the quality of those admitted to the student body of the medical schools. That upgrading is sought by selectivity in the process of admission, selectivity consisting, among other things, of limiting admission to those who exhibit in the required degree the aptitude for medical studies and eventually for medical practice. The need to maintain, and the difficulties of maintaining, high standards in our professional schools in general, and medical schools in particular, in the current stage of our social and economic development, are widely known. We believe that the government is entitled to prescribe an admission test like the NMAT as a means for achieving its stated objective of "upgrading the selection of applicants into [our] medical schools" and of "improv[ing] the quality of medical education in the country." Given the widespread use today of such admission tests in, for instance, medical schools in the United States of America (the Medical College Admission Test [MCAT] 11 and quite probably in other countries with far more developed educational resources than our own, and taking into account the failure or inability of the petitioners to even attempt to prove otherwise, we are entitled to hold that the NMAT is reasonably related to the securing of the ultimate end of legislation and regulation in this area. That end, it is useful to recall, is the protection of the public from the potentially deadly effects of incompetence and ignorance in those who would undertake to treat our bodies and minds for disease or trauma.
cdrep

4.Petitioners have contended, finally, that MECS Order No. 52, s. 1985, is in conflict with the equal protection clause of the Constitution. More specifically, petitioners assert that portion of the MECS Order which provides that.
"the cutoff score for the successful applicants, based on the scores on the NMAT, shall be determined every year by the Board of Medical Education after consultation with the Association of Philippine Medical Colleges." (Emphasis supplied).

infringes the requirements of equal protection. They assert, in other words, that students seeking admission during a given school year. e.g., 1987-1988, when subjected to a different cutoff score than that established for an, e.g., earlier school year, are discriminated against and that this renders the MECS Order "arbitrary and capricious." The force of this argument is more apparent than real. Different cutoff scores for different school years may be dictated by differing conditions obtaining during those years. Thus, the appropriate cutoff score for a given year may be a function of such factors as the number of students who have reached the cutoff score established the preceding year; the number of places available in medical schools during the current year; the average score attained during the current year; the level of difficulty of the test given during the current year, and so forth. To establish a permanent and immutable cutoff score regardless of changes in circumstances from year to year, may well result in an unreasonable rigidity. The above language in MECS Order No. 52, far from being arbitrary or capricious, leaves the Board of Medical Education with the measure of flexibility needed to meet circumstances as they change. We conclude that prescribing the NMAT and requiring certain minimum scores therein as a condition for admission to medical schools in the Philippines, do not constitute an unconstitutional imposition. WHEREFORE, the Petition for Certiorari is DISMISSED and the Order of the respondent trial court denying the petition for a writ of preliminary injunction is AFFIRMED. Costs against petitioners. SO ORDERED.

FIRST DIVISION
[G.R. No. L-34915. June 24, 1983.] CITY GOVERNMENT OF QUEZON CITY and CITY COUNCIL OF QUEZON CITY, petitioners, vs. HON. JUDGE VICENTE G. ERICTA as Judge of the Court of First Instance of Rizal, Quezon City, Branch XVIII; HIMLAYANG PILIPINO, INC., respondents. City Fiscal for petitioners. Manuel Villaruel, Jr. and Feliciano Tumale for respondents. SYLLABUS 1.ADMINISTRATIVE LAW; CITY ORDINANCE; REGULATING THE ESTABLISHMENT, MAINTENANCE AND OPERATION OF PRIVATE MEMORIAL TYPE CEMETERIES; NOT JUSTIFIABLE; CASE AT BAR. We find the stand of the private respondent as well as the decision of the respondent Judge to be well-founded. We quote with approval the lower court's ruling which declared null and void Section 9 of the questioned city ordinance: "The issue is: Is Section 9 of the ordinance in question a valid exercise of the police power? An examination of the Charter of Quezon City (Rep. Act No. 537), does not reveal any provision that would justify the ordinance in question except the provision granting police power to the City. Section 9 cannot be justified under the power granted to Quezon City to tax, fix the license fee, and regulate such other business, trades, and occupation as may he established or practised in the City (Sub-sections 'C,' Sec. 12, R.A. 537). The power to regulate does not include the power to prohibit (People vs. Esguerra, 81 Phil. 33 Vega vs. Municipal Board of Iloilo, L-6765, May 12, 1954; 39 N.J. Law, 70, Mich. 396). A fortiori, the power to regulate does not include the power to confiscate. The ordinance in question not only confiscates but also prohibits the operation of a memorial park cemetery, because under Section 13 of said ordinance, 'Violation of the provision thereof is punishable with a fine and/or imprisonment and that upon conviction thereof the permit to operate and maintain a private cemetery shall be revoked or cancelled.' The confiscatory clause and the penal provision in effect deter one from operating a memorial park cemetery. Neither can the ordinance in question be justified under sub-section 't,' Section 12 of Republic Act 537. There is nothing in the above provision which authorizes confiscation." 2.ID.; ID.; NOT A VALID EXERCISE OF POLICE POWER. We now come to the question whether or not Section 9 of the ordinance in question is a valid exercise of police power. The police power of Quezon City is defined in sub-section 00, Sec. 12,

Rep. Act 537. Police power is usually exercised in the form of mere regulation or restriction in the use of liberty or property for the promotion of the general welfare. It does not involve the taking or confiscation of property with the exception of a few cases where there is a necessity to confiscate private property in order to destroy it for the purpose of protecting the peace and order and of promoting the general welfare as for instance, the confiscation of an illegally possessed article, such as opium and firearms. "It seems to the court that Section 9 of Ordinance No. 6118, Series of 1964 of Quezon City is not a mere police regulation but an outright confiscation. It deprives a person of his private property without due process of law, nay, even without compensation." 3.POLITICAL LAW; POLICE POWER; DEFINITION AND CONCEPT. Police power is defined by Freund as 'the power of promoting the public welfare by restraining and regulating the use of liberty and property' (Quoted in Political Law by Taada and Carreon, V-II, p. 50). It is usually exerted in order to merely regulate the use and enjoyment of property of the owner. If he is deprived of his property outright, it is not taken for public use but rather to destroy in order to promote the general welfare. In police power, the owner does not recover from the government for injury sustained in consequence thereof. 4.ADMINISTRATIVE LAW; CITY ORDINANCE; LACK OF REASONABLE RELATION BETWEEN SETTING ASIDE OF 6% OF THE TOTAL AREA OF ALL PRIVATE CEMETERIES AND THE GENERAL WELFARE. There is no reasonable relation between the setting aside of at least six (6) percent of the total area of all private cemeteries for charity burial grounds of deceased paupers and the promotion of health, morals. good order, safety, or the general welfare of the people. The ordinance is actually a taking without compensation of a certain area from a private cemetery to benefit paupers who are charges of the municipal corporation. Instead of building or maintaining a public cemetery for this purpose, the city passes the burden to private cemeteries. 5.ID.; ID.; AUTHORITY OF CITY TO PROVIDE ITS OWN PUBLIC CEMETERIES; LAW AND PRACTICE. The expropriation without compensation of a portion of private cemeteries is not covered by Section 12(t) of Republic Act 537, the Revised Charter of Quezon City which empowers the city council to prohibit the burial of the dead within the center of population of the city and to provide for their burial in a proper place subject to the provisions of general law regulating burial grounds and cemeteries. When the Local Government Code, Batas Pambansa Blg. 337 provides in Section 177(g) that a sangguniang panlungsod may "provide for the burial of the dead in such place and in such manner as prescribed by law or ordinance" it simply authorizes the city to provide its own city owned land or to buy or expropriate private properties to construct public cemeteries. This has been the law and practice in the past. It continues to the present. 6.ID.; MUNICIPAL CORPORATION; GENERAL WELFARE CLAUSE; BROAD AND LIBERAL INTERPRETATION; STRETCH INTERPRETATION NO LONGER

FEASIBLE IN THE CASE AT BAR. As a matter of fact, the petitioners rely solely on the general welfare clause or on implied powers of the municipal corporation, not on any express provision of law as statutory basis of their exercise of power. The clause has always received broad and liberal interpretation but we cannot stretch it to cover this particular taking. Moreover, the questioned ordinance was passed after Himlayang Pilipino, Inc. had incorporated, received necessary licenses and permits, and commenced operating. The sequestration of six percent of the cemetery cannot even be considered as having been impliedly acknowledged by the private respondent when it accepted the permits to commence operations.

DECISION

GUTIERREZ, JR., J :
p

This is a petition for review which seeks the reversal of the decision of the Court of First Instance of Rizal, Branch XVIII declaring Section 9 of Ordinance No. 6118, S-64, of the Quezon City Council null and void. Section 9 of Ordinance No. 6118, S-64, entitled "ORDINANCE REGULATING THE ESTABLISHMENT, MAINTENANCE AND OPERATION OF PRIVATE MEMORIAL TYPE CEMETERY OR BURIAL GROUND WITHIN THE JURISDICTION OF QUEZON CITY AND PROVIDING PENALTIES FOR THE VIOLATION THEREOF" provides:
"Sec. 9.At least six (6) percent of the total area of the memorial park cemetery shall be set aside for charity burial of deceased persons who are paupers and have been residents of Quezon City for at least 5 years prior to their death, to be determined by competent City Authorities. The area so designated shall immediately be developed and should be open for operation not later than six months from the date of approval of the application."

For several years, the aforequoted section of the Ordinance was not enforced by city authorities but seven years after the enactment of the ordinance, the Quezon City Council passed the following resolution:
LexLib

"RESOLVED by the council of Quezon assembled, to request, as it does hereby request the City Engineer, Quezon City, to stop any further selling and/or transaction of memorial park lots in Quezon City where the owners thereof have failed to donate the required 6% space intended for paupers burial."

Pursuant to this petition, the Quezon City Engineer notified respondent Himlayang Pilipino, Inc. in writing that Section 9 of Ordinance No. 6118, S-64 would be enforced. Respondent Himlayang Pilipino reacted by filing with the Court of First Instance of Rizal, Branch XVIII at Quezon City, a petition for declaratory relief, prohibition and mandamus with preliminary injunction (Sp. Proc. No. Q-16002) seeking to annul Section 9 of the Ordinance in question. The respondent alleged that the same is contrary to the Constitution, the Quezon City Charter, the Local Autonomy Act, and the Revised Administrative Code. There being no issue of fact and the questions raised being purely legal, both petitioners and respondent agreed to the rendition of a judgment on the pleadings. The respondent court, therefore, rendered the decision declaring Section 9 of Ordinance No. 6118, S-64 null and void. A motion for reconsideration having been denied, the City Government and City Council filed the instant petition.
cdlex

Petitioners argue that the taking of the respondent's property is a valid and reasonable exercise of police power and that the land is taken for a public use as it is intended for the burial ground of paupers. They further argue that the Quezon City Council is authorized under its charter, in the exercise of local police power, "to make such further ordinances and resolutions not repugnant to law as may be necessary to carry into effect and discharge the powers and duties conferred by this Act and such as it shall deem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort and convenience of the city and the inhabitants thereof, and for the protection of property therein." On the other hand, respondent Himlayang Pilipino, Inc. contends that the taking or confiscation of property is obvious because the questioned ordinance permanently restricts the use of the property such that it cannot be used for any reasonable purpose and deprives the owner of all beneficial use of his property. The respondent also stresses that the general welfare clause is not available as a source of power for the taking of the property in this case because it refers to "the power of promoting the public welfare by restraining and regulating the use of liberty and property." The respondent points out that if an owner is deprived of his property outright under the State's police power, the property is generally not taken for public use but is urgently and summarily destroyed in order to promote the general welfare. The respondent cites the case of a nuisance per se or the destruction of a house to prevent the spread of a conflagration.
LexLib

We find the stand of the private respondent as well as the decision of the respondent Judge to be well-founded. We quote with approval the lower court's ruling which declared null and void Section 9 of the questioned city ordinance:
"The issue is: Is Section 9 of the ordinance in question a valid exercise of the police power? "An examination of the Charter of Quezon City (Rep. Act No. 5371), does not reveal any provision that would justify the ordinance in question except the provision granting police power to the City. Section 9 cannot be justified under the power granted to Quezon City to tax, fix the license fee, and regulate such other business, trades, and occupation as may be established or practiced in the City.' (Sub-sections 'C', Sec. 12, R.A. 537). "The power to regulate does not include the power to prohibit (People vs. Esguerra, 81 Phil. 33, Vega vs. Municipal Board of Iloilo, L-6765, May 12, 1954; 39 N.J. Law, 70, Mich. 396). A fortiori, the power to regulate does not include the power to confiscate. The ordinance in question not only confiscates but also prohibits the operation of a memorial park cemetery, because under Section 13 of said ordinance, 'Violation of the provision thereof is punishable with a fine and/or imprisonment and that upon conviction thereof the permit to operate and maintain a private cemetery shall be revoked or cancelled.' The confiscatory clause and the penal provision in effect deter one from operating a memorial park cemetery. Neither can the ordinance in question be justified under sub-section 't', Section 12 of Republic Act 537 which authorizes the City Council to "'prohibit the burial of the dead within the center of population of the city and provide for their burial in such proper place and in such manner as the council may determine, subject to the provisions of the general law regulating burial grounds and cemeteries and governing funerals and disposal of the dead.'(Sub-sec. (t), Sec. 12, Rep. Act No. 537). There is nothing in the above provision which authorizes confiscation or as euphemistically termed by the respondents, 'donation.' We now come to the question whether or not Section 9 of the ordinance in question is a valid exercise of police power. The police power of Quezon City is defined in sub-section 00, Sec. 12, Rep. Act 537 which reads as follows: "(00)To make such further ordinance and regulations not repugnant to law as may be necessary to carry into effect and discharge the powers and duties conferred by this act and such as it shall deem necessary and proper to provide for the health and safety, promote, the prosperity, improve the morals, peace, good order, comfort and

convenience of the city and the inhabitants thereof, and for the protection of property therein; and enforce obedience thereto with such lawful fines or penalties as the City Council may prescribe under the provisions of subsection (jj) of this section.' "We start the discussion with a restatement of certain basic principles. Occupying the forefront in the bill of rights is the provision which states that 'no person shall be deprived of life, liberty or property without due process of law' (Art. III, Section 1 subparagraph 1, Constitution). "On the other hand, there are three inherent powers of government by which the state interferes with the property rights, namely (1) police power, (2) eminent domain, (3) taxation. These are said to exist independently of the Constitution as necessary attributes of sovereignty. "Police power is defined by Freund as 'the power of promoting the public welfare by restraining and regulating the use of liberty and property' (Quoted in Political Law by Taada and Carreon, V-II, p. 50). It is usually exerted in order to merely regulate the use and enjoyment of property of the owner. If he is deprived of his property outright, it is not taken for public use but rather to destroy in order to promote the general welfare. In police power, the owner does not recover from the government for injury sustained in consequence thereof. (12 C.J. 623). It has been said that police power is the most essential of government powers, at times the most insistent, and always one of the least limitable of the powers of government (Ruby vs. Provincial Board, 39 Phil. 660; Ichong vs. Hernandez, L-7995, May 31, 1957). This power embraces the whole system of public regulation (U.S. vs. Linsuya Fan, 10 Phil. 104). The Supreme Court has said that police power is so far-reaching in scope that it has almost become impossible to limit its sweep. As it derives its existence from the very existence of the state itself, it does not need to be expressed or defined in its scope. Being coextensive with self-preservation and survival itself, it is the most positive and active of all governmental processes, the most essential, insistent and illimitable. Especially it is so under the modern democratic framework where the demands of society and nations have multiplied to almost unimaginable proportions. The field and scope of police power have become almost boundless, just as the fields of public interest and public welfare have become almost all embracing and have transcended human foresight. Since the Courts cannot foresee the needs and demands of public interest and welfare, they cannot delimit beforehand the extent or scope of the police power by which and through which the state seeks to attain or achieve public interest and welfare. (Ichong vs. Hernandez, L-7995, May 31, 1957). "The police power being the most active power of the government and the due process clause being the broadest limitation on governmental power, the conflict between this power of government and the due process clause of the Constitution is oftentimes inevitable.

"It will be seen from the foregoing authorities that police power is usually exercised in the form of mere regulation or restriction in the use of liberty or property for the promotion of the general welfare. It does not involve the taking or confiscation of property with the exception of a few cases where there is a necessity to confiscate private property in order to destroy it for the purpose of protecting the peace and order and of promoting the general welfare as for instance, the confiscation of an illegally possessed article, such as opium and firearms. "It seems to the court that Section 9 of Ordinance No. 6118, Series of 1964 of Quezon City is not a mere police regulation but an outright confiscation. It deprives a person of his private property without due process of law, nay, even without compensation."

In sustaining the decision of the respondent court, we are not unmindful of the heavy burden shouldered by whoever challenges the validity of duly enacted legislation, whether national or local. As early as 1913, this Court ruled in Case v. Board of Health (24 Phil. 250) that the courts resolve every presumption in favor of validity and, more 90, where the municipal corporation asserts that the ordinance was enacted to promote the common good and general welfare.
LLpr

In the leading case of Ermita-Malate Hotel and Motel Operators Association Inc. v. City Mayor of Manila (20 SCRA 849) the Court speaking through the then Associate Justice and now Chief Justice Enrique M. Fernando stated:
"Primarily what calls for a reversal of such a decision is the absence of any evidence to offset the presumption of validity that attaches to a challenged statute or ordinance. As was expressed categorically by Justice Malcolm: 'The presumption is all in favor of validity. . . . The action of the elected representatives of the people cannot be lightly set aside. The councilors must, in the very nature of things, be familiar with the necessities of their particular municipality and with all the facts and circumstances which surround the subject and necessitate action. The local legislative body, by enacting the ordinance, has in effect given notice that the regulations are essential to the well-being of the people. . . . The Judiciary should not lightly set aside legislative action when there is not a clear invasion of personal or property rights under the guise of police regulation.' (U.S. v. Salaveria [1918], 39 Phil. 102, at p. 111. There was an affirmation of the presumption of validity of municipal ordinance as announced in the leading Salaveria decision in Eboa v. Daet, [1950] 85 Phil. 369.).

We have likewise considered the principles earlier stated in Case v. Board of Health supra:

". . . Under the provisions of municipal charters which are known as the general welfare clauses, a city, by virtue of its police power, may adopt ordinances to secure the peace, safety, health, morals and the best and highest interests of the municipality. It is a well-settled principle, growing out of the nature of wellordered and civilized society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. All property in the state is held subject to its general regulations, which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations, established by law, as the legislature, under the governing and controlling power vested in them by the constitution, may think necessary and expedient. The state, under the police power, is possessed with plenary power to deal with all matters relating to the general health, morals, and safety of the people, so long as it does not contravene any positive inhibition of the organic law and providing that such power is not exercised in such a manner as to justify the interference of the courts to prevent positive wrong and oppression."

but find them not applicable to the facts of this case. There is no reasonable relation between the setting aside of at least six (6) percent of the total area of all private cemeteries for charity burial grounds of deceased paupers and the promotion of health, morals, good order, safety, or the general welfare of the people. The ordinance is actually a taking without compensation of a certain area from a private cemetery to benefit paupers who are charges of the municipal corporation. Instead of building or maintaining a public cemetery for this purpose, the city passes the burden to private cemeteries.
LLphil

The expropriation without compensation of a portion of private cemeteries is not covered by Section 12(t) of Republic Act 537, the Revised Charter of Quezon City which empowers the city council to prohibit the burial of the dead within the center of population of the city and to provide for their burial in a proper place subject to the provisions of general law regulating burial grounds and cemeteries. When the Local Government Code, Batas Pambansa Blg. 337 provides in Section 177 (q) that a Sangguniang panlungsod may "provide for the burial of the dead in such place and in such manner as prescribed by law or ordinance" it simply authorizes the city to provide its own city owned land or to buy or expropriate private properties to construct public cemeteries. This has been the law and practice in the past. It continues to the present. Expropriation, however, requires payment of just compensation. The questioned ordinance is different from laws and regulations requiring owners of subdivisions to set

aside certain areas for streets, parks, playgrounds, and other public facilities from the land they sell to buyers of subdivision lots. The necessities of public safety, health, and convenience are very clear from said requirements which are intended to insure the development of communities with salubrious and wholesome environments. The beneficiaries of the regulation, in turn, are made to pay by the subdivision developer when individual lots are sold to homeowners. As a matter of fact, the petitioners rely solely on the general welfare clause or on implied powers of the municipal corporation, not on any express provision of law as statutory basis of their exercise of power. The clause has always received broad and liberal interpretation but we cannot stretch it to cover this particular taking. Moreover, the questioned ordinance was passed after Himlayang Pilipino, Inc. had incorporated, received necessary licenses and permits, and commenced operating. The sequestration of six percent of the cemetery cannot even be considered as having been impliedly acknowledged by the private respondent when it accepted the permits to commence operations. WHEREFORE, the petition for review is hereby DISMISSED. The decision of the respondent court is affirmed. SO ORDERED.

FIRST DIVISION
[G.R. No. 135962. March 27, 2000.] METROPOLITAN MANILA DEVELOPMENT AUTHORITY, petitioner, vs. BEL-AIR VILLAGE ASSOCIATION, INC., respondent. The Solicitor General for petitioner. R.V. Saguisag and J. Vicente G. Sison for respondent. SYNOPSIS Petitioner Metropolitan Manila Authority (MMDA) is a government agency tasked with the delivery of basic services in Metro Manila, while respondent Bel-Air Village Association, Inc. (BAVA) is the registered owner of Neptune Street, a road inside a private residential subdivision, the Bel-Air Village. On December 30, 1995, the president of the respondent received from the chairman of the petitioner a notice dated December 22, 1995 requesting the respondent to open Neptune Street to public vehicular traffic starting January 2, 1996. On that same day, the president of the respondent was apprised that the perimeter wall separating the subdivision from the adjacent Kalayaan Avenue would be demolished. On January 2, 1996, the respondent instituted an action for injunction against the petitioner before the Regional Trial Court, Branch 136, Makati City. The trial court issued a temporary restraining order. However, after due hearing, the court denied the issuance of a preliminary injunction. On appeal, the Court of Appeals ruled that the MMDA has no authority to order the opening of Neptune Street being a private subdivision road and to cause the demolition of its perimeter walls. It held that the authority is lodged in the City Council of Makati by an ordinance. In this petition, the Court ruled that the MMDA has no power to enact ordinances for the welfare of the community. It is the local government units, acting through their respective legislative councils, that possess legislative power and police power. In the case at bar, the Sangguniang Panlunsod of Makati City did not pass any ordinance or resolution ordering the opening of Neptune Street, hence, its proposed opening by petitioner MMDA is illegal and the respondent Court of Appeals did not err in so ruling. Moreover, the MMDA was created to put some order in the metropolitan transportation system, but unfortunately the powers granted by its charter are limited. Its good intentions cannot justify the opening for public use of a private street in a private

subdivision without any legal warrant. The promotion of the general welfare is not antithetical to the preservation of the rule of law. SYLLABUS 1.POLITICAL LAW; STATE; INHERENT POWER; POLICE POWER; DEFINED. Police power is an inherent attribute of sovereignty. It has been defined as the power vested by the Constitution in the legislature to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and for the subjects of the same. The power is plenary and its scope is vast and pervasive, reaching and justifying measures for public health, public safety, public morals, and the general welfare. 2.ID.; ID.; ID.; ID.; LODGED PRIMARILY IN THE NATIONAL LEGISLATURE; CAN BE DELEGATED TO THE PRESIDENT, ADMINISTRATIVE BOARDS AND LAWMAKING BODIES OF LOCAL GOVERNMENT UNITS. It bears stressing that police power is lodged primarily in the National Legislature. It cannot be exercised by any group or body of individuals not possessing legislative power. The National Legislature, however, may delegate this power to the President and administrative boards as well as the lawmaking bodies of municipal corporations or local government units. Once delegated, the agents can exercise only such legislative powers as are conferred on them by the national lawmaking body. 3.ID.; LOCAL GOVERNMENT; DEFINED. A local government is a "political subdivision of a nation or state which is constituted by law and has substantial control of local affairs." The Local Government Code of 1991 defines a local government unit as a "body politic and corporate" one endowed with powers as a political subdivision of the National Government and as a corporate entity representing the inhabitants of its territory. Local government units are the provinces, cities, municipalities and barangays. They are also the territorial and political subdivisions of the state. 4.ID.; LOCAL GOVERNMENT CODE OF 1991; CONGRESS DELEGATED THE POLICE POWER TO LOCAL GOVERNMENT UNITS. Our Congress delegated police power to the local government units in the Local Government Code of 1991. This delegation is found in Section 16 of the same Code, known as the general welfare clause, viz: "Sec. 16. General Welfare. Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of

the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants." 5.ID.; LOCAL GOVERNMENT UNITS; EXERCISE POLICE POWER THROUGH THEIR RESPECTIVE LEGISLATIVE BODIES. Local government units exercise police power through their respective legislative bodies. The legislative body of the provincial government is the sangguniang panlalawigan, that of the city government is the sangguniang panlungsod, that of the municipal government is the sangguniang bayan, and that of the barangay is the sangguniang barangay. The Local Government Code of 1991 empowers the sangguniang panlalawigan, sangguniang panlungsod and sangguniang bayan to "enact ordinances, approve resolutions and appropriate funds for the general welfare of the [province, city or municipality, as the case may be], and its inhabitants pursuant to Section 16 of the Code and in the proper exercise of the corporate powers of the [province, city municipality] provided under the Code . . . ." The same Code gives the sangguniang barangay the power to "enact ordinances as may be necessary to discharge the responsibilities conferred upon it by law or ordinance and to promote the general welfare of the inhabitants thereon." 6.ID.; ADMINISTRATIVE LAW; ADMINISTRATIVE AGENCY; METROPOLITAN MANILA DEVELOPMENT AUTHORITY; CREATED BY REPUBLIC ACT NO. 7924, TO ADMINISTER BASIC SERVICES AFFECTING METRO MANILA. Metropolitan or Metro Manila is a body composed of several local government units i.e., twelve (12) cities and five (5) municipalities, namely, the cities of Caloocan, Manila, Mandaluyong, Makati, Pasay, Pasig, Quezon, Muntinlupa, Las Pias, Marikina, Paraaque and Valenzuela, and the municipalities of Malabon, Navotas, Pateros, San Juan and Taguig. With the passage of Republic Act (R.A.) No. 7924 in 1995, Metropolitan Manila was declared as a "special development and administrative region" and the Administration of "metro-wide" basic services affecting the region placed under "a development authority" referred to as the MMDA. 7.ID.; ID.; ID.; ID.; METRO-WIDE SERVICES; COVERAGE. "Metro-wide services" are those "services which have metro-wide impact and transcend local political boundaries or entail huge expenditures such that it would not be viable for said services to be provided by the individual local government units comprising Metro Manila." There are seven (7) basic metro-wide services and the scope of these services cover the following: (1) development planning; (2) transport and traffic management; (3) solid waste disposal and management; (4) flood control and sewerage management; (5) urban renewal, zoning and land use planning, and shelter services; (6) health and sanitation, urban protection and pollution control; and (7) public safety.

8.ID.; ID.; ID.; ID.; IMPLEMENTATION OF PLANS, PROGRAMS AND PROJECTS; ELUCIDATED. The implementation of the MMDA's plans, programs and projects is undertaken by the local government units, national government agencies, accredited people's organizations, non-governmental organizations, and the private sector as well as by the MMDA itself. For this purpose, the MMDA has the power to enter into contracts, memoranda of agreement and other cooperative arrangements with these bodies for the delivery of the required services within Metro Manila. 9.ID.; ID.; ID.; ID.; METRO MANILA COUNCIL; APPROVES METRO-WIDE PLANS, PROGRAMS AND PROJECTS, AND ISSUES THE NECESSARY RULES AND REGULATIONS FOR ITS IMPLEMENTATION. The governing board of the MMDA is the Metro Manila Council. The Council is composed of the mayors of the component 12 cities and 5 municipalities, the president of the Metro Manila ViceMayors' League and the president of the Metro Manila Councilors' League. The Council is headed by a Chairman who is appointed by the President and vested with the rank of cabinet member. As the policy-making body of the MMDA, the Metro Manila Council approves metro-wide plans, programs and projects, and issues the necessary rules and regulations for the implementation of said plans; it approves the annual budget of the MMDA and promulgates the rules and regulations for the delivery of basic services, collection of service and regulatory fees, fines and penalties. 10.ID.; ID.; ID.; ID.; AUTHORIZED TO SET POLICIES CONCERNING TRANSPORT AND TRAFFIC MANAGEMENT PROGRAMS. Clearly, the scope of the MMDA's function is limited to the delivery of the seven (7) basic services. One of these is transport and traffic management which includes the formulation and monitoring of policies, standards and projects to rationalize the existing transport operations, infrastructure requirements, the use of thoroughfares and promotion of the safe movement of persons and goods. It also covers the mass transport system and the institution of a system of road regulation, the administration of all traffic enforcement operations, traffic engineering services and traffic education programs, including the institution of a single ticketing system in Metro Manila for traffic violations. Under this service, the MMDA is expressly authorized "to set the policies concerning traffic" and "coordinate and regulate the implementation of all traffic management programs." In addition, the MMDA may "install and administer a single ticketing system," fix, impose and collect fines and penalties for all traffic violations.

11.ID.; ID.; ID.; ID.; NOT GRANTED POLICE POWER; ALL FUNCTIONS ARE ADMINISTRATIVE IN NATURE. It will be noted that the powers of the MMDA are limited to the following acts: formulation, coordination, regulation, implementation, preparation, management, monitoring, setting of policies, installation of a system and administration. There is no syllable in R.A. No. 7924 that grants the MMDA police

power, let alone legislative power. Even the Metro Manila Council has not been delegated any legislative power. Unlike the legislative bodies of the local government units, there is no provision in R.A. No. 7924 that empowers the MMDA or its Council to "enact ordinances, approve resolutions and appropriate funds for the general welfare" of the inhabitants of Metro Manila. The MMDA is, as termed in the charter itself, a "development authority." It is an agency created for the purpose of laying down policies and coordinating with the various national government agencies, people's organizations, non-governmental organizations and the private sector for the efficient and expeditious delivery of basic services in the vast metropolitan area. All its functions are administrative in nature and these are actually summed up in the charter itself. 12.ID.; ID.; ID.; ID.; SANGALANG VS. INTERMEDIATE APPELLATE COURT; NOT APPLICABLE IN CASE AT BAR. Contrary to petitioner's claim, the two Sangalang cases do not apply to the case at bar. Firstly, both involved zoning ordinances passed by the municipal council of Makati and the MMC. In the instant case, the basis for the proposed opening of Neptune Street is contained in the notice of December 22, 1995 sent by petitioner to respondent BAVA, through its president. The notice does not cite any ordinance or law, either by the Sangguniang Panlungsod of Makati City or by the MMDA, as the legal basis for the proposed opening of Neptune Street. Petitioner MMDA simply relied on its authority under its charter "to rationalize the use of roads and/or thoroughfares for the safe and convenient movement of persons." Rationalizing the use of roads and thoroughfares is one of the acts that fall within the scope of transport and traffic management. By no stretch of the imagination, however, can this be interpreted as an express or implied grant of ordinance-making power, much less police power. Secondly, the MMDA is not the same entity as the MMC in Sangalang. Although the MMC is the forerunner of the present MMDA, an examination of Presidential Decree (P.D.) No. 824, the charter of the MMC, shows that the latter possessed greater powers which were not bestowed on the present MMDA. 13.ID.; LOCAL GOVERNMENT UNITS; METROPOLITAN MANILA; CREATED AS A RESPONSE TO RAPID GROWTH OF POPULATION AND INCREASE OF SOCIAL AND ECONOMIC REQUIREMENTS. Metropolitan Manila was first created in 1975 by Presidential Decree (P.D.) No. 824. It comprised the Greater Manila Area composed of the contiguous four (4) cities of Manila, Quezon, Pasay and Caloocan, and the thirteen (13) municipalities of Makati, Mandaluyong, San Juan, Las Pias, Malabon, Navotas, Pasig, Pateros, Paraaque, Marikina, Muntinlupa and Taguig in the province of Rizal, and Valenzuela in the province of Bulacan. Metropolitan Manila was created as a response to the finding that the rapid growth of population and the increase of social and economic requirements in these areas demand a call for simultaneous and unified development; that the public services rendered by the respective local governments could be administered more efficiently and economically if integrated under a system of central planning; and this coordination, "especially in the maintenance of peace and order and the eradication of social and economic ills that fanned the flames of

rebellion and discontent [were] part of reform measures under Martial Law essential to the safety and security of the State." 14.ID.; ADMINISTRATIVE LAW; ADMINISTRATIVE AGENCY; METRO MANILA COUNCIL; CENTRAL GOVERNMENT OF METRO MANILA FOR THE PURPOSE OF ESTABLISHING AND ADMINISTERING PROGRAMS PROVIDING SERVICES COMMON TO THE AREA. The MMC was the "central government" of Metro Manila for the purpose of establishing and administering programs providing services common to the area. As a "central government" it had the power to levy and collect taxes and special assessments, the power to charge and collect fees; the power to appropriate money for its operation, and at the same time, review appropriations for the city and municipal units within its jurisdiction. It was bestowed the power to enact or approve ordinances, resolutions and fix penalties for violation of such ordinances and resolutions. It also had the power to review, amend, revise or repeal all ordinances, resolutions and acts of any of the four (4) cities and thirteen (13) municipalities comprising Metro Manila. 15.ID.; ID.; ID.; ID.; CREATION THEREOF IS COUPLED BY CREATION OF SANGGUNIANG BAYAN. The creation of the MMC also carried with it the creation of the Sangguniang Bayan. This was composed of the members of the component city and municipal councils, barangay captains chosen by the MMC and sectoral representatives appointed by the President. The Sangguniang Bayan had the power to recommend to the MMC the adoption of ordinances, resolutions or measures. 16.ID.; ID.; ID.; ID.; POSSESSED LEGISLATIVE POWERS. It was the MMC itself, however, that possessed legislative powers. All ordinances, resolutions and measures recommended by the Sangguniang Bayan were subject to the MMC's approval. Moreover, the power to impose taxes and other levies, the power to appropriate money, and the power to pass ordinances or resolutions with penal sanctions were vested exclusively in the MMC. Thus, Metropolitan Manila had a "central government," i.e., the MMC which fully possessed legislative and police powers. Whatever legislative powers the component cities and municipalities had were all subject to review and approval by the MMC. 17.ID.; CONSTITUTIONAL LAW; 1987 CONSTITUTION; RESTORES AUTONOMY OF LOCAL GOVERNMENT UNITS IN METRO MANILA. After President Corazon Aquino assumed power, there was a clamor to restore the autonomy of the local government units in Metro Manila. Hence, Sections 1 and 2 of Article X of the 1987 Constitution provided: "Section 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as herein provided. Section 2. The territorial and political subdivisions shall enjoy local autonomy."

18.ID.; ID.; ID.; RECOGNIZED THE NECESSITY OF CREATING METROPOLITAN REGIONS. The Constitution, however, recognized the necessity of creating metropolitan regions not only in the existing National Capital Region but also in potential equivalents in the Visayas and Mindanao. Section 11 of the same Article X thus provided: "Section 11. The Congress may, by law, create special metropolitan political subdivisions, subject to a plebiscite as set forth in Section 10 hereof. The component cities and municipalities shall retain their basic autonomy and shall be entitled to their own local executives and legislative assemblies. The jurisdiction of the metropolitan authority that will thereby be created shall be limited to basic services requiring coordination." The Constitution itself expressly provides that Congress may, by law, create "special metropolitan political subdivisions" which shall be subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected; the jurisdiction of this subdivision shall be limited to basic services requiring coordination; and the cities and municipalities comprising this subdivision shall retain basic autonomy and their own local executive and legislative assemblies. 19.ID.; ID.; ID.; TRANSITORY PROVISIONS; GAVE THE PRESIDENT OF THE PHILIPPINES THE POWER TO CONSTITUTE THE METROPOLITAN AUTHORITY. Pending enactment of this law, the Transitory Provisions of the Constitution gave the President of the Philippines the power to constitute the Metropolitan Authority, viz. "Section 8. Until otherwise provided by Congress, the President may constitute the Metropolitan Authority to be composed of the heads of all local government units comprising the Metropolitan Manila area." 20.ID.; ADMINISTRATIVE LAW; ADMINISTRATIVE AGENCY; METROPOLITAN MANILA AUTHORITY; LIMITED TO DELIVERY OF BASIC URBAN SERVICES REQUIRING COORDINATION IN METROPOLITAN MANILA. In 1990, President Aquino issued Executive Order (E.O.) No. 392 and constituted the Metropolitan Manila Authority (MMA). The powers and functions of the MMC were developed to the MMA. It ought to be stressed, however, that not all powers and functions of the MMC were passed to the MMA. The MMA's power was limited to the "delivery of basic urban services requiring coordination in Metropolitan Manila." The MMA's governing body, the Metropolitan Manila Council, although composed of the mayors of the component cities and municipalities, was merely given the power of: (1) formulation of policies on the delivery of basic services requiring coordination and consolidation; and (2) promulgation of resolutions and other issuances, approval of a code of basic services and the exercise of its rule-making power. Under the 1987 Constitution, the local government units became primarily responsible for the governance of their respective political subdivisions. The MMA's jurisdiction was limited to addressing common problems involving basic services that transcended local boundaries. It did not have legislative power. Its power was merely to provide the local government units technical assistance in the preparation of local development plans. Any semblance of legislative power it had was confined to a "review [of] legislation proposed by the local legislative

assemblies to ensure consistency among local governments and with the comprehensive development plan of Metro Manila," and to "advice the local governments accordingly."

21.ID.; ID.; ID.; METROPOLITAN MANILA DEVELOPMENT AUTHORITY; NOT A POLITICAL UNIT OF GOVERNMENT. When R.A. No. 7924 took effect, Metropolitan Manila became a "special development and administrative region" and the MMDA a "special development authority" whose functions were "without prejudice to the autonomy of the affected local government units." The character of the MMDA was clearly defined in the legislative debates enacting its charter. . . . Clearly, the MMDA is not a political unit of government. The power delegated to the MMDA is that given to the Metro Manila Council to promulgate administrative rules and regulations in the implementation of the MMDA's functions. There is no grant of authority to enact ordinances and regulations for the general welfare of the inhabitants of the metropolis. This was explicitly stated in the last Committee deliberations prior to the bill's presentation to Congress. . . . The draft of H. B. No. 14170/11116 was presented by the Committee to the House of Representatives. The explanatory note to the bill stated that the proposed MMDA is a "development authority" which is a "national agency, not a political government unit." The explanatory note was adopted as the sponsorship speech of the Committee on Local Governments. No interpellations or debates were made on the floor and no amendments introduced. The bill was approved on second reading on the same day it was presented. When the bill was forwarded on the Senate, several amendments were made. These amendments, however, did not affect the nature of the MMDA as originally conceived in the House of Representatives. 22.ID.; ID.; ID.; ID.; NOT EVEN A SPECIAL METROPOLITAN POLITICAL SUBDIVISION. It is thus beyond doubt that the MMDA is not local government unit or a public corporation endowed with legislative power. It is not even a "special metropolitan political subdivision" as contemplated in Section 11, Article X of the Constitution. The creation of a "special metropolitan political subdivision" requires the approval by a majority of the votes cast in a plebiscite in the political units directly affected. R. A. No. 7924 was not submitted to the inhabitants of Metro Manila in a plebiscite. The Chairman of the MMDA is not an official elected by the people, but appointed by the President with the rank and privileges of a cabinet member. In fact, part of his function is to perform such other duties as may be assigned to him by the president, whereas in local government units, the President merely exercises supervisory authority. This emphasizes the administrative character of the MMDA. 23.ID.; ID.; ID.; ID.; NO POWER TO ENACT ORDINANCES FOR THE WELFARE OF THE COMMUNITY; CASE AT BAR. Clearly then, the MMC under P.D. No. 824 is not the same entity as the MMDA under R.A. No. 7924. Unlike the MMC, the MMDA has no power to enact ordinances for the welfare of the community. It is the local

government units, acting through their respective legislative councils, that possess legislative power and police power. In the case at bar, the Sangguniang Panlungsod of Makati City did not pass any ordinance or resolution ordering the opening of Neptune Street, hence, its proposed opening by petitioner MMDA is illegal and the respondent Court of Appeals did not err in so ruling. 24.ID.; STATE; INHERENT POWERS; POLICE POWER; GOOD INTENTIONS CANNOT JUSTIFY THE OPENING FOR PUBLIC USE OF PRIVATE STREET IN PRIVATE SUBDIVISION WITHOUT ANY LEGAL WARRANT. We stress that this decision does not make light of the MMDA's noble efforts to solve the chaotic traffic condition in Metro Manila. Everyday, traffic jams and traffic bottlenecks plague the metropolis. Even our once sprawling boulevards and avenues are now crammed with cars while city streets are clogged with motorists and pedestrians. Traffic has become a social malaise affecting our people's productivity and the efficient delivery of goods and services in the country. The MMDA was created to put some order in the metropolitan transportation system but unfortunately the powers granted by its charter are limited. Its good intentions cannot justify the opening for public use of a private street in a private subdivision without any legal warrant. The promotion of the general welfare is not antithetical to the preservation of the rule of law.
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DECISION

PUNO, J :
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Not infrequently, the government is tempted to take legal shortcuts to solve urgent problems of the people. But even when government is armed with the best of intention, we cannot allow it to run roughshod over the rule of law. Again, we let the hammer fall and fall hard on the illegal attempt of the MMDA to open for public use a private road in a private subdivision. While we hold that the general welfare should be promoted, we stress that it should not be achieved at the expense of the rule of law.
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Petitioner MMDA is a government agency tasked with the delivery of basic services in Metro Manila. Respondent Bel-Air Village Association, Inc. (BAVA) is a non-stock, non-profit corporation whose members are homeowners in Bel-Air Village, a private subdivision in Makati City. Respondent BAVA is the registered owner of Neptune Street, a road beside Bel-Air Village. On December 30, 1995, respondent received from petitioner, through its Chairman, a notice dated December 22, 1995 requesting respondent to open Neptune Street to public vehicular traffic starting January 2, 1996. The notice reads:

"SUBJECT: NOTICE of the Opening of Neptune Street to Traffic "Dear President Lindo, "Please be informed that pursuant to the mandate of the MMDA law or Republic Act No. 7924 which requires the Authority to rationalize the use of roads and/or thoroughfares for the safe and convenient movement of persons, Neptune Street shall be opened to vehicular traffic effective January 2, 1996. "In view whereof, the undersigned requests you to voluntarily open the points of entry and exit on said street. "Thank you for your cooperation and whatever assistance that may be extended by your association to the MMDA personnel who will be directing traffic in the area. "Finally, we are furnishing you with a copy of the handwritten instruction of the President on the matter. "Very truly yours, PROSPERO I. ORETA Chairman" 1

On the same day, respondent was apprised that the perimeter wall separating the subdivision from the adjacent Kalayaan Avenue would be demolished. On January 2, 1996, respondent instituted against petitioner before the Regional Trial Court, Branch 136, Makati City, Civil Case No. 96-001 for injunction. Respondent prayed for the issuance of a temporary restraining order and preliminary injunction enjoining the opening of Neptune Street and prohibiting the demolition of the perimeter wall. The trial court issued a temporary restraining order the following day. On January 23, 1996 after due hearing, the trial court denied issuance of a preliminary injunction. 2 Respondent questioned the denial before the Court of Appeals in CA-G.R. SP No. 39549. The appellate court conducted an ocular inspection of Neptune Street 3 and on February 13, 1996, it issued a writ of preliminary injunction enjoining the implementation of the MMDA's proposed action. 4 On January 28, 1997, the appellate court rendered a Decision on the merits of the case finding that the MMDA has no authority to order the opening of Neptune Street, a private subdivision road and cause the demolition of its perimeter walls. It held that the authority is lodged in the City Council of Makati by ordinance. The decision disposed of as follows:

"WHEREFORE, the Petition is GRANTED; the challenged Order dated January 23, 1995, in Civil Case No. 96-001, is SET ASIDE and the Writ of Preliminary Injunction issued on February 13, 1996 is hereby made permanent. "For want of sustainable substantiation, the Motion to Cite Roberto L. del Rosario in contempt is denied. 5 "No pronouncement as to costs. "SO ORDERED." 6

The Motion for Reconsideration of the decision was denied on September 28, 1998. Hence, this recourse. Petitioner MMDA raises the following questions:
"I HAS THE METROPOLITAN MANILA DEVELOPMENT AUTHORITY (MMDA) THE MANDATE TO OPEN NEPTUNE STREET TO PUBLIC TRAFFIC PURSUANT TO ITS REGULATORY AND POLICE POWERS? II IS THE PASSAGE OF AN ORDINANCE A CONDITION PRECEDENT BEFORE THE MMDA MAY ORDER THE OPENING OF SUBDIVISION ROADS TO PUBLIC TRAFFIC? III IS RESPONDENT BEL-AIR VILLAGE ASSOCIATION, INC. ESTOPPED FROM DENYING OR ASSAILING THE AUTHORITY OF THE MMDA TO OPEN THE SUBJECT STREET? IV WAS RESPONDENT DEPRIVED OF DUE PROCESS DESPITE THE SEVERAL MEETINGS HELD BETWEEN MMDA AND THE AFFECTED BEL-AIR RESIDENTS AND BAVA OFFICERS? V HAS RESPONDENT COME TO COURT WITH UNCLEAN HANDS?" 7

Neptune Street is owned by respondent BAVA. It is a private road inside Bel-Air Village, a private residential subdivision in the heart of the financial and commercial district of

Makati City. It runs parallel to Kalayaan Avenue, a national road open to the general public. Dividing the two (2) streets is a concrete perimeter wall approximately fifteen (15) feet high. The western end of Neptune Street intersects Nicanor Garcia, formerly Reposo Street, a subdivision road open to public vehicular traffic, while its eastern end intersects Makati Avenue, a national road. Both ends of Neptune Street are guarded by iron gates. Petitioner MMDA claims that it has the authority to open Neptune Street to public traffic because it is an agent of the state endowed with police power in the delivery of basic services in Metro Manila. One of these basic services is traffic management which involves the regulation of the use of thoroughfares to insure the safety, convenience and welfare of the general public. It is alleged that the police power of MMDA was affirmed by this Court in the consolidated cases of Sangalang v. Intermediate Appellate Court. 8 From the premise that it has police power, it is now urged that there is no need for the City of Makati to enact an ordinance opening Neptune street to the public. 9

Police power is an inherent attribute of sovereignty. It has been defined as the power vested by the Constitution in the legislature to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and for the subjects of the same. 10 The power is plenary and its scope is vast and pervasive, reaching and justifying measures for public health, public safety, public morals, and the general welfare. 11 It bears stressing that police power is lodged primarily in the National Legislature. 12 It cannot be exercised by any group or body of individuals not possessing legislative power. 13 The National Legislature, however, may delegate this power to the President and administrative boards as well as the lawmaking bodies of municipal corporations or local government units. 14 Once delegated, the agents can exercise only such legislative powers as are conferred on them by the national lawmaking body. 15 A local government is a "political subdivision of a nation or state which is constituted by law and has substantial control of local affairs." 16 The Local Government Code of 1991 defines a local government unit as a "body politic and corporate" 17 one endowed with powers as a political subdivision of the National Government and as a corporate entity representing the inhabitants of its territory. 18 Local government units are the provinces, cities, municipalities and barangays. 19 They are also the territorial and political subdivisions of the state. 20

Our Congress delegated police power to the local government units in the Local Government Code of 1991. This delegation is found in Section 16 of the same Code, known as the general welfare clause, viz:
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"SECTION 16.General Welfare. Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants." 21

Local government units exercise police power through their respective legislative bodies. The legislative body of the provincial government is the sangguniang panlalawigan, that of the city government is the sangguniang panlungsod, that of the municipal government is the sangguniang bayan, and that of the barangay is the sangguniang barangay. The Local Government Code of 1991 empowers the sangguniang panlalawigan, sangguniang panlungsod and sangguniang bayan to "enact ordinances, approve resolutions and appropriate funds for the general welfare of the [province, city or municipality, as the case may be], and its inhabitants pursuant to Section 16 of the Code and in the proper exercise of the corporate powers of the [province, city municipality] provided under the Code . . ." 22 The same Code gives the sangguniang barangay the power to "enact ordinances as may be necessary to discharge the responsibilities conferred upon it by law or ordinance and to promote the general welfare of the inhabitants thereon." 23 Metropolitan or Metro Manila is a body composed of several local government units i.e., twelve (12) cities and five (5) municipalities, namely, the cities of Caloocan, Manila, Mandaluyong, Makati, Pasay, Pasig, Quezon, Muntinlupa, Las Pias, Marikina, Paraaque and Valenzuela, and the municipalities of Malabon, Navotas, Pateros, San Juan and Taguig. With the passage of Republic Act (R.A.) No. 7924 24 in 1995, Metropolitan Manila was declared as a "special development and administrative region" and the Administration of "metro-wide" basic services affecting the region placed under "a development authority" referred to as the MMDA. 25 "Metro-wide services" are those "services which have metro-wide impact and transcend local political boundaries or entail huge expenditures such that it would not be viable for said services to be provided by the individual local government units comprising Metro Manila." 26 There are seven (7) basic metro-wide services and the scope of these services

cover the following: (1) development planning; (2) transport and traffic management; (3) solid waste disposal and management; (4) flood control and sewerage management; (5) urban renewal, zoning and land use planning, and shelter services; (6) health and sanitation, urban protection and pollution control; and (7) public safety. The basic service of transport and traffic management includes the following:
"(b) Transport and traffic management which include the formulation, coordination, and monitoring of policies, standards, programs and projects to rationalize the existing transport operations, infrastructure requirements, the use of thoroughfares, and promotion of safe and convenient movement of persons and goods; provision for the mass transport system and the institution of a system to regulate road users; administration and implementation of all traffic enforcement operations, traffic engineering services and traffic education programs, including the institution of a single ticketing system in Metropolitan Manila;" 27

In the delivery of the seven (7) basic services, the MMDA has the following powers and functions:
"SECTION 5.Functions and powers of the Metro Manila Development Authority. The MMDA shall: (a)Formulate, coordinate and regulate the implementation of medium and longterm plans and programs for the delivery of metro-wide services, land use and physical development within Metropolitan Manila, consistent with national development objectives and priorities; (b)Prepare, coordinate and regulate the implementation of medium-term investment programs for metro-wide services which shall indicate sources and uses of funds for priority programs and projects, and which shall include the packaging of projects and presentation to funding institutions; (c)Undertake and manage on its own metro-wide programs and projects for the delivery of specific services under its jurisdiction, subject to the approval of the Council. For this purpose, MMDA can create appropriate project management offices; (d)Coordinate and monitor the implementation of such plans, programs and projects in Metro Manila; identify bottlenecks and adopt solutions to problems of implementation; (e)The MMDA shall set the policies concerning traffic in Metro Manila, and shall coordinate and regulate the implementation of all programs and projects concerning traffic management, specifically pertaining to enforcement, engineering and education. Upon request, it shall be extended assistance and

cooperation, including but not limited to, assignment of personnel, by all other government agencies and offices concerned; (f)Install and administer a single ticketing system, fix, impose and collect fines and penalties for all kinds of violations of traffic rules and regulations, whether moving or non-moving in nature, and confiscate and suspend or revoke drivers' licenses in the enforcement of such traffic laws and regulations, the provisions of RA 4136 and PD 1605 to the contrary notwithstanding. For this purpose, the Authority shall impose all traffic laws and regulations in Metro Manila, through its traffic operation center, and may deputize members of the PNP, traffic enforcers of local government units, duly licensed security guards, or members of non-governmental organizations to whom may be delegated certain authority, subject to such conditions and requirements as the Authority may impose; and (g)Perform other related functions required to achieve the objectives of the MMDA, including the undertaking of delivery of basic services to the local government units, when deemed necessary subject to prior coordination with and consent of the local government unit concerned."

The implementation of the MMDA's plans, programs and projects is undertaken by the local government units, national government agencies, accredited people's organizations, non-governmental organizations, and the private sector as well as by the MMDA itself. For this purpose, the MMDA has the power to enter into contracts, memoranda of agreement and other cooperative arrangements with these bodies for the delivery of the required services within Metro Manila. 28 The governing board of the MMDA is the Metro Manila Council. The Council is composed of the mayors of the component 12 cities and 5 municipalities, the president of the Metro Manila Vice-Mayors' League and the president of the Metro Manila Councilors' League. 29 The Council is headed by a Chairman who is appointed by the President and vested with the rank of cabinet member. As the policy-making body of the MMDA, the Metro Manila Council approves metro-wide plans, programs and projects, and issues the necessary rules and regulations for the implementation of said plans; it approves the annual budget of the MMDA and promulgates the rules and regulations for the delivery of basic services, collection of service and regulatory fees, fines and penalties. These functions are particularly enumerated as follows:
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"SECTION 6.Functions of the Metro Manila Council. (a)The Council shall be the policy-making body of the MMDA; (b)It shall approve metro-wide plans, programs and projects and issue rules and regulations deemed necessary by the MMDA to carry out the purposes of this Act;

(c)It may increase the rate of allowances and per diems of the members of the Council to be effective during the term of the succeeding Council. It shall fix the compensation of the officers and personnel of the MMDA, and approve the annual budget thereof for submission to the Department of Budget and Management (DBM); (d)It shall promulgate rules and regulations and set policies and standards for metro-wide application governing the delivery of basic services, prescribe and collect service and regulatory fees, and impose and collect fines and penalties."

Clearly, the scope of the MMDA's function is limited to the delivery of the seven (7) basic services. One of these is transport and traffic management which includes the formulation and monitoring of policies, standards and projects to rationalize the existing transport operations, infrastructure requirements, the use of thoroughfares and promotion of the safe movement of persons and goods. It also covers the mass transport system and the institution of a system of road regulation, the administration of all traffic enforcement operations, traffic engineering services and traffic education programs, including the institution of a single ticketing system in Metro Manila for traffic violations. Under this service, the MMDA is expressly authorized "to set the policies concerning traffic" and "coordinate and regulate the implementation of all traffic management programs." In addition, the MMDA may "install and administer a single ticketing system," fix, impose and collect fines and penalties for all traffic violations. It will be noted that the powers of the MMDA are limited to the following acts: formulation, coordination, regulation, implementation, preparation, management, monitoring, setting of policies, installation of a system and administration. There is no syllable in R.A. No. 7924 that grants the MMDA police power, let alone legislative power. Even the Metro Manila Council has not been delegated any legislative power. Unlike the legislative bodies of the local government units, there is no provision in R.A. No. 7924 that empowers the MMDA or its Council to "enact ordinances, approve resolutions and appropriate funds for the general welfare" of the inhabitants of Metro Manila. The MMDA is, as termed in the charter itself, a "development authority." 30 It is an agency created for the purpose of laying down policies and coordinating with the various national government agencies, people's organizations, non-governmental organizations and the private sector for the efficient and expeditious delivery of basic services in the vast metropolitan area. All its functions are administrative in nature and these are actually summed up in the charter itself, viz:
"SECTION 2.Creation of the Metropolitan Manila Development Authority. . ..

The MMDA shall perform planning, monitoring and coordinative functions, and in the process exercise regulatory and supervisory authority over the delivery of metro-wide services within Metro Manila, without diminution of the autonomy of the local government units concerning purely local matters." 31

Petitioner cannot seek refuge in the cases of Sangalang v. Intermediate Appellate Court 32 where we upheld a zoning ordinance issued by the Metro Manila Commission (MMC), the predecessor of the MMDA, as an exercise of police power. The first Sangalang decision was on the merits of the petition, 33 while the second decision denied reconsideration of the first case and in addition discussed the case of Yabut v. Court of Appeals. 34 Sangalang v. IAC involved five (5) consolidated petitions filed by respondent BAVA and three residents of Bel-Air Village against other residents of the Village and the Ayala Corporation, formerly the Makati Development Corporation, as the developer of the subdivision. The petitioners sought to enforce certain restrictive easements in the deeds of sale over their respective lots in the subdivision. These were the prohibition on the setting up of commercial and advertising signs on the lots, and the condition that the lots be used only for residential purposes. Petitioners alleged that respondents, who were residents along Jupiter Street of the subdivision, converted their residences into commercial establishments in violation of the "deed restrictions," and that respondent Ayala Corporation ushered in the full commercialization of Jupiter Street by tearing down the perimeter wall that separated the commercial from the residential section of the village. 35 The petitions were dismissed based on Ordinance No. 81 of the Municipal Council of Makati and Ordinance No. 81-01 of the Metro Manila Commission (MMC). Municipal Ordinance No. 81 classified Bel-Air Village as a Class A Residential Zone, with its boundary in the south extending to the center line of Jupiter Street. The Municipal Ordinance was adopted by the MMC under the Comprehensive Zoning Ordinance for the National Capital Region and promulgated as MMC Ordinance No. 81-01. Bel-Air Village was indicated therein as bounded by Jupiter Street and the block adjacent thereto was classified as a High Intensity Commercial Zone. 36 We ruled that since both Ordinances recognized Jupiter Street as the boundary between Bel-Air Village and the commercial district, Jupiter Street was not for the exclusive benefit of Bel-Air residents. We also held that the perimeter wall on said street was constructed not to separate the residential from the commercial blocks but simply for security reasons, hence, in tearing down said wall, Ayala Corporation did not violate the "deed restrictions" in the deeds of sale. We upheld the ordinances, specifically MMC Ordinance No. 81-0l, as a legitimate exercise of police power. 37 The power of the MMC and the Makati Municipal Council

to enact zoning ordinances for the general welfare prevailed over the "deed restrictions."
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In the second Sangalang/Yabut decision, we held that the opening of Jupiter Street was warranted by the demands of the common good in terms of "traffic decongestion and public convenience." Jupiter was opened by the Municipal Mayor to alleviate traffic congestion along the public streets adjacent to the Village. 38 The same reason was given for the opening to public vehicular traffic of Orbit Street, a road inside the same village. The destruction of the gate in Orbit Street was also made under the police power of the municipal government. The gate, like the perimeter wall along Jupiter, was a public nuisance because it hindered and impaired the use of property, hence, its summary abatement by the mayor was proper and legal. 39 Contrary to petitioner's claim, the two Sangalang cases do not apply to the case at bar. Firstly, both involved zoning ordinances passed by the municipal council of Makati and the MMC. In the instant case, the basis for the proposed opening of Neptune Street is contained in the notice of December 22, 1995 sent by petitioner to respondent BAVA, through its president. The notice does not cite any ordinance or law, either by the Sangguniang Panlungsod of Makati City or by the MMDA, as the legal basis for the proposed opening of Neptune Street. Petitioner MMDA simply relied on its authority under its charter "to rationalize the use of roads and/or thoroughfares for the safe and convenient movement of persons." Rationalizing the use of roads and thoroughfares is one of the acts that fall within the scope of transport and traffic management. By no stretch of the imagination, however, can this be interpreted as an express or implied grant of ordinance-making power, much less police power. Secondly, the MMDA is not the same entity as the MMC in Sangalang. Although the MMC is the forerunner of the present MMDA, an examination of Presidential Decree (P.D.) No. 824, the charter of the MMC, shows that the latter possessed greater powers which were not bestowed on the present MMDA. Metropolitan Manila was first created in 1975 by Presidential Decree (P.D.) No. 824. It comprised the Greater Manila Area composed of the contiguous four (4) cities of Manila, Quezon, Pasay and Caloocan, and the thirteen (13) municipalities of Makati, Mandaluyong, San Juan, Las Pias, Malabon, Navotas, Pasig, Pateros, Paraaque, Marikina, Muntinlupa and Taguig in the province of Rizal, and Valenzuela in the province of Bulacan. 40 Metropolitan Manila was created as a response to the finding that the rapid growth of population and the increase of social and economic requirements in these areas demand a call for simultaneous and unified development; that the public services rendered by the respective local governments could be administered more efficiently and economically if integrated under a system of central planning; and this coordination, "especially in the maintenance of peace and order and the eradication of social and economic ills that fanned the names of rebellion and discontent [were] part of reform measures under Martial Law essential to the safety and security of the State." 41

Metropolitan Manila was established as a "public corporation" with the following powers:
"SECTION 1.Creation of the Metropolitan Manila. There is hereby created a public corporation, to be known as the Metropolitan Manila, vested with powers and attributes of a corporation including the power to make contracts, sue and be sued, acquire, purchase, expropriate, hold, transfer and dispose of property and such other powers as are necessary to carry out its purposes. The Corporation shall be administered by a Commission created under this Decree." 42

The administration of Metropolitan Manila was placed under the Metro Manila Commission (MMC) vested with the following powers:
"SECTION 4.Powers and Functions of the Commission. The Commission shall have the following powers and functions: 1.To act as a central government to establish and administer programs and provide services common to the area; 2.To levy and collect taxes and special assessments, borrow and expend money and issue bonds, revenue certificates, and other obligations of indebtedness. Existing tax measures should, however, continue to be operative until otherwise modified or repealed by the Commission;

3.To charge and collect fees for the use of public service facilities; 4.To appropriate money for the operation of the metropolitan government and review appropriations for the city and municipal units within its jurisdiction with authority to disapprove the same if found to be not in accordance with the established policies of the Commission, without prejudice to any contractual obligation of the local government units involved existing at the time of approval of this Decree; 5.To review, amend, revise or repeal all ordinances, resolutions and acts of cities and municipalities within Metropolitan Manila; 6.To enact or approve ordinances, resolutions and to fix penalties for any violation thereof which shall not exceed a fine of P10,000.00 or imprisonment of six years or both such fine and imprisonment for a single offense; 7.To perform general administrative, executive and policy-making functions;
cdtai

8.To establish a fire control operation center, which shall direct the fire services of the city and municipal governments in the metropolitan area; 9.To establish a garbage disposal operation center, which shall direct garbage collection and disposal in the metropolitan area; 10.To establish and operate a transport and traffic center, which shall direct traffic activities; 11.To coordinate and monitor governmental and private activities pertaining to essential services such as transportation, flood control and drainage, water supply and sewerage, social, health and environmental services, housing, park development, and others; 12.To insure and monitor the undertaking of a comprehensive social, economic and physical planning and development of the area; 13.To study the feasibility of increasing barangay participation in the affairs of their respective local governments and to propose to the President of the Philippines definite programs and policies for implementation; 14.To submit within thirty (30) days after the close of each fiscal year an annual report to the President of the Philippines and to submit a periodic report whenever deemed necessary; and 15.To perform such other tasks as may be assigned or directed by the President of the Philippines."

The MMC was the "central government" of Metro Manila for the purpose of establishing and administering programs providing services common to the area. As a "central government" it had the power to levy and collect taxes and special assessments, the power to charge and collect fees; the power to appropriate money for its operation, and at the same time, review appropriations for the city and municipal units within its jurisdiction. It was bestowed the power to enact or approve ordinances, resolutions and fix penalties for violation of such ordinances and resolutions. It also had the power to review, amend, revise or repeal all ordinances, resolutions and acts of any of the four (4) cities and thirteen (13) municipalities comprising Metro Manila. P.D. No. 824 further provided:
"SECTION 9.Until otherwise provided, the governments of the four cities and thirteen municipalities in the Metropolitan Manila shall continue to exist in their present form except as may be inconsistent with this Decree. The members of the existing city and municipal councils in Metropolitan Manila shall, upon promulgation of this Decree, and until December 31, 1975, become members of

the Sangguniang Bayan which is hereby created for every city and municipality of Metropolitan Manila. In addition, the Sangguniang Bayan shall be composed of as many barangay captains as may be determined and chosen by the Commission, and such number of representatives from other sectors of the society as may be appointed by the President upon recommendation of the Commission. xxx xxx xxx. The Sangguniang Bayan may recommend to the Commission ordinances, resolutions or such measures as it may adopt; Provided, that no such ordinance, resolution or measure shall become effective, until after its approval by the Commission; and Provided further, that the power to impose taxes and other levies, the power to appropriate money and the power to pass ordinances or resolutions with penal sanctions shall be vested exclusively in the Commission."

The creation of the MMC also carried with it the creation of the Sangguniang Bayan. This was composed of the members of the component city and municipal councils, barangay captains chosen by the MMC and sectoral representatives appointed by the President. The Sangguniang Bayan had the power to recommend to the MMC the adoption of ordinances, resolutions or measures. It was the MMC itself, however, that possessed legislative powers. All ordinances, resolutions and measures recommended by the Sangguniang Bayan were subject to the MMC's approval. Moreover, the power to impose taxes and other levies, the power to appropriate money, and the power to pass ordinances or resolutions with penal sanctions were vested exclusively in the MMC. Thus, Metropolitan Manila had a "central government," i.e., the MMC which fully possessed legislative and police powers. Whatever legislative powers the component cities and municipalities had were all subject to review and approval by the MMC. After President Corazon Aquino assumed power, there was a clamor to restore the autonomy of the local government units in Metro Manila. Hence, Sections 1 and 2 of Article X of the 1987 Constitution provided:
"SECTION 1.The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as herein provided. "SECTION 2.The territorial and political subdivisions shall enjoy local autonomy."

The Constitution, however, recognized the necessity of creating metropolitan regions not only in the existing National Capital Region but also in potential equivalents in the Visayas and Mindanao. 43 Section 11 of the same Article X thus provided:
"SECTION 11.The Congress may, by law, create special metropolitan political subdivisions, subject to a plebiscite as set forth in Section 10 hereof. The component cities and municipalities shall retain their basic autonomy and shall be entitled to their own local executives and legislative assemblies. The jurisdiction of the metropolitan authority that will thereby be created shall be limited to basic services requiring coordination."

The Constitution itself expressly provides that Congress may, by law, create "special metropolitan political subdivisions" which shall be subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected; the jurisdiction of this subdivision shall be limited to basic services requiring coordination; and the cities and municipalities comprising this subdivision shall retain their basic autonomy and their own local executive and legislative assemblies. 44 Pending enactment of this law, the Transitory Provisions of the Constitution gave the President of the Philippines the power to constitute the Metropolitan Authority, viz:
"SECTION 8.Until otherwise provided by Congress, the President may constitute the Metropolitan Authority to be composed of the heads of all local government units comprising the Metropolitan Manila area." 45

In 1990, President Aquino issued Executive Order (E.O.) No. 392 and constituted the Metropolitan Manila Authority (MMA). The powers and functions of the MMC were devolved to the MMA. 46 It ought to be stressed, however, that not all powers and functions of the MMC were passed to the MMA. The MMA's power was limited to the "delivery of basic urban services requiring coordination in Metropolitan Manila." 47 The MMA's governing body, the Metropolitan Manila Council, although composed of the mayors of the component cities and municipalities, was merely given the power of : (1) formulation of policies on the delivery of basic services requiring coordination and consolidation; and (2) promulgation of resolutions and other issuances, approval of a code of basic services and the exercise of its rule-making power. 48 Under the 1987 Constitution, the local government units became primarily responsible for the governance of their respective political subdivisions. The MMA's jurisdiction was limited to addressing common problems involving basic services that transcended local boundaries. It did not have legislative power. Its power was merely to provide the local government units technical assistance in the preparation of local development plans. Any semblance of legislative power it had was confined to a "review [of] legislation proposed by the local legislative assemblies to ensure consistency among local governments and with the comprehensive development plan of Metro Manila," and to "advise the local governments accordingly." 49

When R.A. No. 7924 took effect, Metropolitan Manila became a "special development and administrative region" and the MMDA a "special development authority" whose functions were "without prejudice to the autonomy of the affected local government units." The character of the MMDA was clearly defined in the legislative debates enacting its charter. R.A. No. 7924 originated as House Bill No. 14170/11116 and was introduced by several legislators led by Dante Tinga, Roilo Golez and Feliciano Belmonte. It was presented to the House of Representatives by the Committee on Local Governments chaired by Congressman Ciriaco R. Alfelor. The bill was a product of Committee consultations with the local government units in the National Capital Region (NCR), with former chairmen of the MMC and MMA, 50 and career officials of said agencies. When the bill was first taken up by the Committee on Local Governments, the following debate took place:
"THE CHAIRMAN [Hon. Ciriaco Alfelor]: Okay, Let me explain. This has been debated a long time ago, you know. It's a special . . . we can create a special metropolitan political subdivision.

Actually, there are only six (6) political subdivisions provided for in the Constitution: barangay, municipality, city, province, and we have the Autonomous Region of Mindanao and we have the Cordillera. So we have 6. Now . . . HON. [Elias] LOPEZ: May I interrupt, Mr. Chairman. In the case of the Autonomous Region, that is also specifically mandated by the Constitution. THE CHAIRMAN: That's correct. But it is considered to be a political subdivision. What is the meaning of a political subdivision? Meaning to say, that it has its own government, it has its own political personality, it has the power to tax, and all governmental powers: police power and everything. All right. Authority is different; because it does not have its own government. It is only a council, it is an organization of political subdivision, powers, 'no, which is not imbued with any political power.
llcd

If you go over Section 6, where the powers and functions of the Metro Manila Development Authority, it is purely coordinative. And it provides here that the council is policy-making. All right. Under the Constitution is a Metropolitan Authority with coordinative power. Meaning to say, it coordinates all of the different basic services which have to be delivered to the constituency. All right.

There is now a problem. Each local government unit is given its respective . . . as a political subdivision. Kalookan has its powers, as provided for and protected and guaranteed by the Constitution. All right, the exercise. However, in the exercise of that power, it might be deleterious and disadvantageous to other local government units. So, we are forming an authority where all of these will be members and then set up a policy in order that the basic services can be effectively coordinated. All right. Of course, we cannot deny that the MMDA has to survive. We have to provide some funds, resources. But it does not possess any political power. We do not elect the Governor. We do not have the power to tax. As a matter of fact, I was trying to intimate to the author that it must have the power to sue and be sued because it coordinates. All right. It coordinates practically all these basic services so that the flow and the distribution of the basic services will be continuous. Like traffic, we cannot deny that. It's before our eyes. Sewerage, flood control, water system, peace and order, we cannot deny these. It's right on our face. We have to look for a solution. What would be the right solution? All right, we envision that there should be a coordinating agency and it is called an authority. All right, if you do not want to call it an authority, it's alright. We may call it a council or maybe a management agency. xxx xxx xxx." 51 Clearly, the MMDA is not a political unit of government. The power delegated to the MMDA is that given to the Metro Manila Council to promulgate administrative rules and regulations in the implementation of the MMDA's functions. There is no grant of authority to enact ordinances and regulations for the general welfare of the inhabitants of the metropolis. This was explicitly stated in the last Committee deliberations prior to the bill's presentation to Congress. Thus: "THE CHAIRMAN: Yeah, but we have to go over the suggested revision. I think this was already approved before, but it was reconsidered in view of the proposals, set-up, to make the MMDA stronger. Okay, so if there is no objection to paragraph "f" . . . And then next is paragraph "b," under Section 6. "It shall approve metro-wide plans, programs and projects and issue ordinances or resolutions deemed necessary by the MMDA to carry out the purposes of this Act." Do you have the powers? Does the MMDA . . . because that takes the form of a local government unit, a political subdivision. HON. [Feliciano] BELMONTE: Yes, I believe so, your Honor. When we say that it has the policies, it's very clear that those policies must be followed. Otherwise, what's the use of empowering it to come out with policies. Now, the policies may be in the form of a resolution or it may be in the form of a ordinance. The term "ordinance in this case really gives it more teeth, your honor. Otherwise, we are going to see a situation where you have the power to

adopt the policy but you cannot really make it stick as in the case now, and I think here is Chairman Bunye. I think he will agree that that is the case now. You've got the power to set a policy, the body wants to follow your policy, then we say let's call it an ordinance and see if they will not follow it. THE CHAIRMAN: That's very nice. I like that. However, there is a constitutional impediment. You are making this MMDA a political subdivision. The creation of the MMDA would be subject to a plebiscite. That is what I'm trying to avoid. I've been trying to avoid this kind of predicament. Under the Constitution it states: if it is a political subdivision, once it is created it has to be subject to a plebiscite. I'm trying to make this as administrative. That's why we place the Chairman as a cabinet rank. HON. BELMONTE: All right, Mr. Chairman, okay, what you are saying there is . . . THE CHAIRMAN: In setting up ordinances, it is a political exercise. Believe me. HON. [Elias] LOPEZ: Mr. Chairman, it can be changed into issuances of rules and regulations. That would be . . . it shall also be enforced. HON. BELMONTE: Okay, I will . . . HON. LOPEZ: And you can also say that violation of such rule, you impose a sanction. But you know, ordinance has a different legal connotation. HON. BELMONTE: All right. I defer to that opinion, your Honor. THE CHAIRMAN: So instead of ordinances, say rules and regulations. HON. BELMONTE: Or resolutions. Actually, they are actually considering resolutions now. THE CHAIRMAN: Rules and resolutions. HON. BELMONTE: Rules, regulations and resolutions." 52

The draft of H. B. No. 14170/11116 was presented by the Committee to the House of Representatives. The explanatory note to the bill stated that the proposed MMDA is a "development authority" which is a "national agency, not a political government unit." 53 The explanatory note was adopted as the sponsorship speech of the Committee on Local Governments. No interpellations or debates were made on the floor and no amendments introduced. The bill was approved on second reading on the same day it was presented.
54

When the bill was forwarded to the Senate, several amendments were made. These amendments, however, did not affect the nature of the MMDA as originally conceived in the House of Representatives. 55 It is thus beyond doubt that the MMDA is not a local government unit or a public corporation endowed with legislative power. It is not even a "special metropolitan political subdivision" as contemplated in Section 11, Article X of the Constitution. The creation of a "special metropolitan political subdivision" requires the approval by a majority of the votes cast in a plebiscite in the political units directly affected. 56 R.A. No. 7924 was not submitted to the inhabitants of Metro Manila in a plebiscite. The Chairman of the MMDA is not an official elected by the people, but appointed by the President with the rank and privileges of a cabinet member. In fact, part of his function is to perform such other duties as may be assigned to him by the President, 57 whereas in local government units, the President merely exercises supervisory authority. This emphasizes the administrative character of the MMDA. Clearly then, the MMC under P.D. No. 824 is not the same entity as the MMDA under R.A. No. 7924. Unlike the MMC, the MMDA has no power to enact ordinances for the welfare of the community. It is the local government units, acting through their respective legislative councils, that possess legislative power and police power. In the case at bar, the Sangguniang Panlungsod of Makati City did not pass any ordinance or resolution ordering the opening of Neptune Street, hence, its proposed opening by petitioner MMDA is illegal and the respondent Court of Appeals did not err in so ruling. We desist from ruling on the other issues as they are unnecessary. We stress that this decision does not make light of the MMDA's noble efforts to solve the chaotic traffic condition in Metro Manila. Everyday, traffic jams and traffic bottlenecks plague the metropolis. Even our once sprawling boulevards and avenues are now crammed with cars while city streets are clogged with motorists and pedestrians. Traffic has become a social malaise affecting our people's productivity and the efficient delivery of goods and services in the country. The MMDA was created to put some order in the metropolitan transportation system but unfortunately the powers granted by its charter are limited. Its good intentions cannot justify the opening for public use of a private street in a private subdivision without any legal warrant. The promotion of the general welfare is not antithetical to the preservation of the rule of law.
Cdpr

IN VIEW WHEREOF, the petition is denied. The Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 39549 are affirmed. SO ORDERED.
prcd

SECOND DIVISION
[G.R. No. 40243. March 11, 1992.] CELESTINO TATEL, petitioner, vs. MUNICIPALITY OF VIRAC, SALVADOR A. SURTIDA, in his capacity as Mayor of Virac, Catanduanes; GAVINO V. GUERRERO, in his capacity as ViceMayor of Virac, Catanduanes; JOSE T. BUEBOS, in his capacity as Councilor of Virac, Catanduanes; ANGELES TABLIZO, in his capacity as Councilor of Virac, Catanduanes; ELPIDIO T. ZAFE, in his capacity as Councilor of Virac, Catanduanes; MARIANO ALBERTO, in his capacity as Councilor of Virac, Catanduanes; JULIA A. GARCIA, in her capacity as Councilor of Virac, Catanduanes; and PEDRO A. GUERRERO, in his capacity as Councilor of Virac, Catanduanes, respondents. Francisco A. Perfecto and Roberto G. Cenon for petitioner. SYLLABUS 1.ADMINISTRATIVE LAW; MUNICIPAL CORPORATIONS; DEFINED. It is a settled principle of law that municipal corporations are agencies of the State for the promotion and maintenance of local self-government and as such are endowed with police powers in order to effectively accomplish and carry out the declared objects of their creation. Its authority emanates from the general welfare clause under the Administrative Code. 2.ID.; ID.; MUNICIPAL ORDINANCE; REQUISITES FOR VALIDITY. For an ordinance to be valid, it must not only be within the corporate powers of the municipality to enact but must also be passed according to the procedure prescribed by law, and must be in consonance with certain well established and basic principles of a substantive nature. These principles require that a municipal ordinance (1) must not contravene the Constitution or any statute (2) must not be unfair or oppressive (3) must not be partial or discriminatory (4) must not prohibit but may regulate trade (5) must be general and consistent with public policy, and (6) must not be unreasonable. Ordinance No. 13, Series of 1952, meets these criteria. 3.CONSTITUTIONAL LAW; BILL OF RIGHTS; EQUAL PROTECTION OF LAW; NOT VIOLATED IN CASE AT BAR. As to the assignment of error, that warehouses similarly situated as that of petitioner were not prosecuted, suffice it to say that the mere fact that the municipal authorities of Virac have not proceeded against other warehouses

in the municipality allegedly violating Ordinance No. 13 is no reason to claim that the ordinance is discriminatory. A distinction must be made between the law itself and the manner in which said law is implemented by the agencies in charge with its administration and enforcement. There is no valid reason for the petitioner to complain, in the absence of proof that the other bodegas mentioned by him are operating in violation of the ordinance and that complaints have been lodged against the bodegas concerned without the municipal authorities doing anything about it. The objections interposed by the petitioner to the validity of the ordinance have not been substantiated. Its purpose is well within the objectives of sound government. No undue restraint is placed upon the petitioner or for anybody to engage in trade but merely a prohibition from storing inflammable products in the warehouses because of the danger of fire to the lives and properties of the people residing in the vicinity. As far as public policy is concerned, there can be no better policy than what has been conceived by the municipal government. 4.REMEDIAL LAW; COURT OF FIRST INSTANCE; HAS ORIGINAL JURISDICTION FOR CIVIL SUIT FOR ABATEMENT OF NUISANCE. As to petitioner's contention of want of jurisdiction by the lower court we find no merit in the same. The case is a simple civil suit for abatement of a nuisance, the original jurisdiction of which falls under the then Court of First Instance.

DECISION

NOCON, J :
p

This is a Petition for Prohibition with Preliminary Injunction with the Court of First Instance of Catanduanes. filed by appellant, Celestino Tatel, a businessman engaged in the import and export of abaca and other products against the Municipal Council of Virac, Catanduanes and its municipal officials enjoining them from enforcing Resolution No. 29 1 of the Council, declaring the warehouse of petitioner in barrio Sta. Elena of the said municipality a public nuisance within the purview of Article 694 of the Civil Code of the Philippines and directing the petitioner to remove and transfer said warehouse to a more suitable place within two (2) months from receipt of the said resolution.
LexLib

It appears from the records that on the basis of complaints received from the residents of barrio Sta. Elena on March 18, 1966 against the disturbance caused by the operation of the abaca bailing machine inside the warehouse of petitioner which affected the peace and tranquility of the neighborhood due to the smoke, obnoxious odor and dust emitted by the machine, a committee was appointed by the municipal council of Virac to investigate the matter. The committee noted the crowded nature of the neighborhood with narrow roads and the surroundings residential houses, so much so that an accidental fire

within the warehouse of petitioner occasioned by a continuance of the activity inside the warehouse and the storing of inflammable materials created a danger to the lives and properties of the people within the neighborhood.
LLjur

Resultantly, Resolution No. 29 was passed by the Municipal Council of Virac on April 22, 1966 declaring the warehouse owned and operated by petitioner a public nuisance within the purview of Article 694 of the New Civil Code. 2 His motion for reconsideration having been denied by the Municipal Council of Virac, petitioner instituted the present petition for prohibition with preliminary injunction. Respondent municipal officials contend that petitioner's warehouse was constructed in violation of Ordinance No. 13, series of 1952, prohibiting the construction of warehouses near a block of houses either in the poblacion or barrios without maintaining the necessary distance of 200 meters from said block of houses to avoid loss of lives and properties by accidental fire. On the other hand, petitioner contends that said ordinance is unconstitutional, contrary to the due process and equal protection clause of the Constitution and null and void for not having been passed in accordance with law. The issue then boils down on whether petitioner's warehouse is a nuisance within the meaning of Article 694 of the Civil Code and whether Ordinance No. 13, S. 1952 of the Municipality of Virac is unconstitutional and void. In a decision dated September 18, 1969, the court a quo ruled as follows:
"1.The warehouse in question was legally constructed under a valid permit issued by the municipality of Virac in accordance with existing regulations and may not be destroyed or removed from its present location; 2.Ordinance No. 13, series of 1952, is a legitimate and valid exercise of police power by the Municipal Council of Virac is not (sic) unconstitutional and void as claimed by the petitioner; 3.The storage by the petitioner of abaca and copra in the warehouse is not only in violation of the provisions of the ordinance but poses a grave danger to the safety of the lives and properties of the residents of the neighborhood due to accidental fire and constitutes a public nuisance under the provisions of Article 694 of the Civil Code of the Philippines and may be abated; 4.Accordingly, the petitioner is hereby directed to remove from the said warehouse all abaca and copra and other inflammable articles stored therein which are prohibited under the provisions of Ordinance No. 13, within a period of two (2) months from the time this decision becomes final and that henceforth,

the petitioner is enjoined from storing such prohibited articles in the warehouse. With costs against petitioner".

Seeking appellate review, petitioner raised as errors of the court a quo:

1.In holding that Ordinance No. 13, series of 1952, of the Municipality of Virac, Catanduanes, is a legitimate and valid exercise of police power of the Municipal Council, and therefore, constitutional; 2.In giving the ordinance a meaning other than and different from what it provided by declaring that petitioner violated the same by using the warehouse for storage of abaca and copra when what is prohibited and penalized by the ordinance is the construction of warehouses. 3.In refusing to take judicial notice of the fact that in the municipality, there are numerous establishments similarly situated as appellant's warehouses but which are not prosecuted.

We find no merit in the Petition. Ordinance No. 13, series of 1952, was passed by the Municipal Council of Virac in the exercise of its police power. It is a settled principal of law that municipal corporations are agencies of the State for the promotion and maintenance of local self-government and as such are endowed with police powers in order to effectively accomplish and carry out the declared objects of their creation. 3 Its authority emanates from the general welfare clause under the Administrative Code, which reads:
"The municipal council shall enact such ordinance and make such regulations, not repugnant to law, as may be necessary to carry into effect and discharge the powers and duties conferred upon it by law and such as shall seem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort and convenience of the municipality and the inhabitants thereof, and for the protection of property therein." 4

For an ordinance to be valid, it must not only be within the corporate powers of the municipality to enact but must also be passed according to the procedure prescribed by law, and must be in consonance with certain well established and basic principles of a substantive nature. These principles require that a municipal ordinance (1) must not contravene the Constitution or any statue (2) must not be unfair or oppressive (3) must not be partial or discriminatory (4) must not prohibit but may regulate trade (5) must be general and consistent with public policy, and (6) must not be unreasonable. 5 Ordinance No. 13, Series of 1952, meets these criteria.
Cdpr

As to the petitioner's second assignment of error, the trial court did not give the ordinance in question a meaning other than what it says. Ordinance No. 13 passed by the Municipal Council of Virac on December 29, 1952, 6 reads:
"AN ORDINANCE STRICTLY PROHIBITING THE CONSTRUCTION OF WAREHOUSE IN ANY FORM NEAR A BLOCK OF HOUSES EITHER IN POBLACION OR BARRIO WITH NECESSARY DISTANCE TO AVOID GREAT LOSSES OF PROPERTY AND LIVES BY FIRE ACCIDENT".

Section 1 provides:
"It is strictly prohibited to construct warehouses in any form to any person, persons, entity, corporation or merchants, wherein to keep or store copra, hemp, gasoline, petroleum, alcohol, crude oil, oil of turpentine and the like products or materials if not within the distance of 200 meters from a block of houses either in the poblacion or barrios to avoid great losses of properties inclusive lives by fire accident."

Section 2 provides: 7
"Owners of warehouses in any form, are hereby given advice to remove their said warehouses this ordinance by the Municipal Council, provided however, that if those warehouses now in existence should no longer be utilized as such warehouse for the above-described products in Section 1 of this ordinance after a lapse of time given for the removal of the said warehouses now in existence, same warehouse shall be exempted from the spirit of the provision of section 1 of this ordinance, provided further, that these warehouses now in existence, shall in the future be converted into non-inflammable products and materials warehouses."

In spite of its fractured syntax, basically, what is regulated by the ordinance is the construction of warehouses wherein inflammable materials are stored where such warehouses are located at a distance of 200 meters from a block of houses and not the construction per se of a warehouse. The purpose is to avoid the loss of life and property in case of fire which is one of the primordial obligation of government. This was also the observation of the trial court:
"A casual glance of the ordinance at once reveals a manifest disregard of the elemental rules of syntax. Experience, however, will show that this is not uncommon in law making bodies in small towns where local authorities and in particular the persons charged with the drafting and preparation of municipal resolutions and ordinances lack sufficient education and training and are not well grounded even on the basic and fundamental elements of the English language commonly used throughout the country in such matters. Nevertheless,

if one scrutinizes the terms of the ordinance, it is clear that what is prohibited is the construction of warehouses by any person, entity or corporation wherein copra, hemp, gasoline and other inflammable products mentioned in Section 1 may be stored unless at a distance of not less than 200 meters from a block of houses either in the poblacion or barrios in order to avoid loss of property and life due to fire. Under Section 2, existing warehouses for the storage of the prohibited articles were given one year after the approval of the ordinance within which to remove them but were allowed to remain in operation if they had ceased to store such prohibited articles. The ambiguity therefore is more apparent than real and springs from simple error in grammatical construction but otherwise, the meaning and intent is clear that what is prohibited is the construction or maintenance of warehouses for the storage of inflammable articles at a distance within 200 meters from a block of houses either in the poblacion or in the barrios. And the purpose of the ordinance is to avoid loss of life and property in case of accidental fire which is one of the primordial and basic obligation of any government." 8

Clearly, the lower court did NOT add meaning other than or different from what provided in the ordinance in question. It merely stated the purpose of the ordinance and what it intends to prohibit to accomplish its purpose. As to the third, assignment of error, that warehouses similarly situated as that of petitioner were not prosecuted, suffice it to say that the mere fact that the municipal authorities of Virac have not proceeded against other warehouses in the municipality allegedly violating Ordinance No. 13 is no reason to claim that the ordinance is discriminatory. A distinction must be made between the law itself and the manner in which said law is implemented by the agencies in charge with its administration and enforcement. There is no valid reason for the petitioner to complain, in the absence of proof that the other bodegas mentioned by him are operating in violation of the ordinance and that complaints have been lodged against the bodegas concerned without the municipal authorities doing anything about it. The objections interposed by the petitioner to the validity of the ordinance have not been substantiated. Its purpose is well within the objectives of sound government. No undue restraint is placed upon the petitioner or for anybody to engage in trade but merely a prohibition from storing inflammable products in the warehouse because of the danger of fire to the lives and properties of the people residing in the vicinity. As far as public policy is concerned, there can be no better policy than what has been conceived by the municipal government. As to petitioner's contention of want of jurisdiction by the lower court we find no merit, in the same. The case is a simple civil suit for abatement of a nuisance, the original jurisdiction of which falls under the then Court of First Instance.

WHEREFORE, for lack of merit, the petition is hereby DISMISSED. Costs against petitioner.
cdasia

SO ORDERED.