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POLITICAL LAW DIGESTS2012-2017
POLITICAL LAW
GENERAL CONSIDERATIONS
STATE IMMUNITY
DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS V. SPOUSES
VICENTE ABECINA
G.R. No. 2106484 | June 29, 2016 | Brion, J.
FACTS:
Municipality of Jose Panganiban, Camarines Norte donated 1, 200 square meters to
DOTC to implement the Regional Telecommunications Development Project; municipality
erroneously included portion of respondent’s property in the donation. Pursuant to the
Financial Lease Agreement of DOTC and Digitel, Latter constructed telephone exchange
on the property.
Spouses Abecina discovered it and required Digitel to vacate and pay damages. Due
to non-compliance with the demands, respondent spouses filed an accion publiciana
against DOTC and Digitel. DOTC claimed immunity from suit and ownership which they
later withdrew. RTC approved the compromise agreement and contract of Lease of
respondent and Digitel and decided against the defense of state immunity. RTC stated that
as builders in bad faith, the improvements should be forfeited and property vacated with
actual, moral and exemplary damages. CA affirmed the decision with the exception of
exemplary damages. Hence, DOTC filed a petition for review on certiorari.
DOTC argued that the FLA was entered in pursuit of governmental functions thus
there is no waiver of state immunity. It encroached upon the property in good faith, even
without formal expropriation proceedings it still an exercise of eminent domain and should
be remanded to RTC to determine just compensation.
Respondents argued that state immunity cannot be invoked to perpetrate an
injustice against its citizens.
ISSUE: Whether or not DOTC can invoke state immunity. NO.
RULING:
Under the old and present constitution, the State may not be sued without its
consent.
It is necessary to distinguish between the State’s sovereign and governmental acts
(jure imperii) and its private, commercial, and proprietary acts (jure gestionis). Presently,
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state immunity restrictively extends only to acts jure imperii while acts jure gestionis are
considered as a waiver of immunity. The construction of DOTC in the encroachment was
acts jure imperii under cloak of state immunity.
But jurisprudence states that doctrine of state immunity cannot serve as an
instrument for perpetrating an injustice to a citizen.1
One limitation of this awesome and near-limitless power is principles that no person
shall be deprived of life, liberty, or property without due process of law and that private
property shall not be taken for public use without just compensation enshrined in the Bill
of Rights
Under the Law, eminent domain should be exercised through expropriation
proceedings in court. Whenever private property is taken for public use, it becomes the
ministerial duty of the concerned office or agency to initiate expropriation proceedings.
By necessary implication, the filing of a complaint for expropriation is a waiver of
State immunity. Following normal procedure, DOTC should have initiated expropriation
instead of insisting on immunity from suit. Thus, entry and taking of property is an implied
waiver.
If the respondents, in the future, refused to lease the property, DOTC may initiate
expropriation proceedings.
DOTC is not a builder in bad faith. Good faith consists in the belief of the builder
that the land he is building on is his and [of] his ignorance of any defect or flaw in his title.
While the DOTC later realized its error and admitted its encroachment over the
respondents' property, there is no evidence that it acted maliciously or in bad faith when
the construction was done.
Article 527 of the Civil Code presumes good faith. Without proof that the
Department's mistake was made in bad faith, its construction is presumed to have been
made in good faith. Therefore, the forfeiture of the improvements in favor of the
respondent spouses is unwarranted.
HERMANO OIL MANUFACTURING & SUGAR CORPORATION vs. TOLL
REGULATORY BOARD, ENGR. JAIME S. DUMLAO, JR., PHILIPPINE NATIONAL
CONSTRUCTION CORPORATION (PNCC) AND DEPARTMENT OF PUBLIC WORKS
AND HIGHWAYS (DPWH)
G.R. No. 167290, November 26, 2014, J. Lucas P. Bersamin
1Ministerio
v CFI, Amigable v. Cuenca, the 2010 case Heirs of Pidacan v. ATO,
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An unincorporated government agency without any separate juridical personality of
its own enjoys immunity from suit because it is invested with an inherent power of
sovereignty. Accordingly, a claim for damages against the agency cannot prosper; otherwise,
the doctrine of sovereign immunity is violated. The immunity has been upheld in favor of the
former because its function is governmental or incidental to such function; it has not been
upheld in favor of the latter whose function was not in pursuit of a necessary function of
government but was essentially a business.
The TRB, Dumlao and the DPWH correctly invoked the doctrine of sovereign
immunity in their favor. The TRB and the DPWH performed purely or essentially government
or public functions. As such, they were invested with the inherent power of sovereignty. Being
unincorporated agencies or entities of the National Government, they could not be sued as
such. On his part, Dumlao was acting as the agent of the TRB in respect of the matter
concerned.
Nonetheless, the Hermano Oil properly argued that the PNCC, being a private
business entity, was not immune from suit. The PNCC was incorporated in 1966 under its
original name of Construction Development Corporation of the Philippines (CDCP) for a
term of fifty years pursuant to the Corporation Code. Hence, the Government owned 90.3%
of the equity of the PNCC, and only 9.70% of the PNCC’s voting equity remained under private
ownership. Although the majority or controlling shares of the PNCC belonged to the
Government, the PNCC was essentially a private corporation due to its having been created
in accordance with the Corporation Code, the general corporation statute. More specifically,
the PNCC was an acquired asset corporation under Administrative Order No. 59, and was
subject to the regulation and jurisdiction of the Securities and Exchange
Commission. Consequently, the doctrine of sovereign immunity had no application to the
PNCC.
Facts:
Hermano Oil Manufacturing & Sugar Corporation (Hermano Oil) owned a parcel of
land located at the right side of the Sta. Rita Exit of the NLEX situated at Barangay Sta. Rita,
Guiguinto, Bulacan and covered by TCT No. T-134222 in its name issued by the Registry of
Deeds of Bulacan. The parcel of land was bounded by an access fence along the NLEX.
Hermano Oil requested that respondent Toll Regulatory Board (TRB) grant an easement of
right of way, contending that it had been totally deprived of the enjoyment and possession
of its property by the access fence that had barred its entry into and exit from the NLEX.
However, the TRB denied the Hermano Oil’s request since said request is
inconsistent with the provision of Section 7.0 of Republic Act No. 2000, also known as the
Limited Access Highway Act. Moreover, allowing easement of right-of-way may have
detrimental/adverse effect on the scheduled rehabilitation and improvement of the North
Luzon Expressway Interchanges, as well as on the operational problems, i.e. traffic conflicts
that may arise, if approved.
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Thereafter, Hermano Oil sued the TRB and Engr. Jaime S. Dumlao, the TRB’s
Executive Director, in the RTC, demanding specific performance, the grant of the easement
of right of way and damages (Civil Case No. 37-M-2002). Hermano Oil amended its
complaint to implead the Philippine National Construction Corporation (PNCC) and the
Department of Public Works and Highways (DPWH) as indispensable parties.
Hermano Oil alleged in its amended complaint that the access fence had totally
deprived it of the use and enjoyment of its property by preventing ingress and egress to its
property; that the only access leading to its property was the road network situated in front
of its property; that it was thereby deprived of its property without due process of law and
just compensation; and that it was also denied equal protection of the law because adjacent
property owners had been given ingress and egress access to their properties. It prayed that
the RTC immediately issue a writ of preliminary injunction/temporary restraining order
enjoining the defendants, its agents and/or representatives from depriving it to ingress and
egress of its property and after due hearing, granting it a right of way.
Appearing for the TRB, the Office of the Solicitor General (OSG) filed a Motion to
Dismiss with Opposition to the Application for the Issuance of Temporary Restraining
Order and/or Writ of Preliminary Injunction.
RTC granted the motion to dismiss observing that the present action against the
defendants Toll Regulatory Board and its Executive Director, Engr. Jaime S. Dumlao, Jr.,
could be considered as a suit against the state without its consent as among the reliefs
prayed for in the complaint is to require the said defendants to pay, jointly and severally, a
just and reasonable compensation of the plaintiff’s property which, if awarded in the
judgment against said defendants, would ultimately involve an appropriation by the state
of the amount needed to pay the compensation and damages so awarded.
This principle applies with equal force as regards new defendant Department of
Public Works and Highways (DPWH). Defendant Philippine National Construction
Corporation (PNCC), on the other hand, was impleaded as additional defendant being the
entity that operates the North Luzon Expressway and was primarily responsible in
depriving the plaintiff of the use and enjoyment of its property by reason of the
construction of the access or right of way fence that prevents ingress to and egress from
the subject property, considering further that the other defendants had refused to grant
plaintiff’s request for an easement of right of way.
CA affirmed RTC’s dismissal of the complaint. As to the matter of non-suability, the
CA notes that while defendant-appellee PNCC is a government owned and controlled
corporation, the other defendants-appellees are either agencies of the State (DPWH and
TRB) or an employee of a government agency. Hermano Oil argued that the principle of
non-suability of the state does not apply when the government acted in a nongovernmental capacity.
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Issues:
1. Whether or not respondent PNCC, although not strictly a government agency, should
enjoy immunity from suit.
2. Whether or not the dismissal of the complaint due to lack of jurisdiction and due to
lack of cause of action is proper.
Ruling:
1.
Hermano Oil properly argued that the PNCC, being a private business entity, was
not immune from suit.
In the Court’s view, however, the TRB, Dumlao and the DPWH correctly invoked
the doctrine of sovereign immunity in their favor. The TRB and the DPWH performed
purely or essentially government or public functions. As such, they were invested with the
inherent power of sovereignty. Being unincorporated agencies or entities of the National
Government, they could not be sued as such. On his part, Dumlao was acting as the agent
of the TRB in respect of the matter concerned.
In Air Transportation Office v. Ramos, the Court expounded on the doctrine of
sovereign immunity in the following manner:
An unincorporated government agency without any separate juridical
personality of its own enjoys immunity from suit because it is invested
with an inherent power of sovereignty. Accordingly, a claim for damages
against the agency cannot prosper; otherwise, the doctrine of sovereign
immunity is violated. However, the need to distinguish between an
unincorporated government agency performing governmental function
and one performing proprietary functions has arisen. The immunity has
been upheld in favor of the former because its function is governmental
or incidental to such function; it has not been upheld in favor of the latter
whose function was not in pursuit of a necessary function of government
but was essentially a business.
Nonetheless, Hermano Oil properly argued that the PNCC, being a private business
entity, was not immune from suit. The PNCC was incorporated in 1966 under its original
name of Construction Development Corporation of the Philippines (CDCP) for a term of
fifty years pursuant to the Corporation Code. Hence, the Government owned 90.3% of the
equity of the PNCC, and only 9.70% of the PNCC’s voting equity remained under private
ownership. Although the majority or controlling shares of the PNCC belonged to the
Government, the PNCC was essentially a private corporation due to its having been created
in accordance with the Corporation Code, the general corporation statute. More
specifically, the PNCC was an acquired asset corporation under Administrative Order No.
59, and was subject to the regulation and jurisdiction of the Securities and Exchange
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Commission. Consequently, the doctrine of sovereign immunity had no application to the
PNCC.
Nonetheless, Hermano Oil properly argued that the PNCC, being a private business
entity, was not immune from suit. The PNCC was incorporated in 1966 under its original
name of Construction Development Corporation of the Philippines (CDCP) for a term of
fifty years pursuant to the Corporation Code. In 1983, the CDCP changed its corporate
name to the PNCC to reflect the extent of the Government’s equity investment in the
company, a situation that came about after the government financial institutions converted
their loans into equity following the CDCP’s inability to pay the loans. Hence, the
Government owned 90.3% of the equity of the PNCC, and only 9.70% of the PNCC’s voting
equity remained under private ownership. Although the majority or controlling shares of
the PNCC belonged to the Government, the PNCC was essentially a private corporation
due to its having been created in accordance with the Corporation Code, the general
corporation statute. More specifically, the PNCC was an acquired asset corporation under
Administrative Order No. 59, and was subject to the regulation and jurisdiction of the
Securities and Exchange Commission. Consequently, the doctrine of sovereign immunity
had no application to the PNCC.
2.
Yes. The Court affirms the dismissal of the complaint due to lack of jurisdiction and
due to lack of cause of action.
It appears that the Hermano Oil’s complaint principally sought to restrain the
respondents from implementing an access fence on its property, and to direct them to grant
it a right of way to the NLEX. Clearly, the reliefs being sought by the Hermano Oil were
beyond the jurisdiction of the RTC because no court except the Supreme Court could issue
an injunction against an infrastructure project of the Government. This is because
Presidential Decree No. 1818, issued on January 16, 1981, prohibited judges from issuing
restraining orders against government infrastructure projects, stating in its sole provision:
“No court in the Philippines shall have jurisdiction to issue any restraining order,
preliminary injunction or preliminary order, preliminary mandatory injunction in any case,
dispute or controversy involving an infrastructure project.” Presidential Decree No. 1818
was amended by Republic Act No. 8975, approved on November 7, 2000, whose pertinent
parts provide:
Section 3. Prohibition on the Issuance of Temporary Restraining Orders,
Preliminary Injunctions and Preliminary Mandatory Injunctions.- No
court, except the Supreme Court, shall issue any temporary restraining
order, preliminary injunction or preliminary mandatory injunction
against the government, or any of its subdivisions, officials or any person
or entity, whether public or private, acting under the government's
direction, to restrain, prohibit or compel the following acts:
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(a) Acquisition, clearance and development of the right-of-way and/or
site or location of any national government project;
(b) Bidding or awarding of contract/project of the national government
as defined under Section 2 hereof;
(c) Commencement, prosecution, execution, implementation, operation
of any such contract or project;
(d) Termination or rescission of any such contract/project; and
(e) The undertaking or authorization of any other lawful activity
necessary for such contract/project.
This prohibition shall apply in all cases, disputes or controversies instituted by a
private party, including but not limited to cases filed by bidders or those claiming to have
rights through such bidders involving such contract/project. This prohibition shall not
apply when the matter is of extreme urgency involving a constitutional issue, such that
unless a temporary restraining order is issued, grave injustice and irreparable injury will
arise. The applicant shall file a bond, in an amount to be fixed by the court, which bond
shall accrue in favor of the government if the court should finally decide that the applicant
was not entitled to the relief sought.
If after due hearing the court finds that the award of the contract is null and void,
the court may, if appropriate under the circumstances, award the contract to the qualified
and winning bidder or order a rebidding of the same, without prejudice to any liability that
the guilty party may incur under existing laws.
Section 4. Nullity of Writs and Orders.- Any temporary restraining order,
preliminary injunction or preliminary mandatory injunction issued in
violation of Section 3 hereof is void and of no force and effect.
Section 5. Designation of Regional Trial Courts.- The Supreme Court may
designate regional trial courts to act as commissioners with the sole function
of receiving facts of the case involving acquisition, clearance and
development of right-of-way for government infrastructure projects. The
designated regional trial court shall within thirty (30) days from the date of
receipt of the referral, forward its findings of facts to the Supreme Court for
appropriate action.
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SEPARATION OF POWERS
MARIA CAROLINA P. ARAULLO, CHAIRPERSON, BAGONG ALYANSANG
MAKABAYAN, et al. vs. BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES, et al.
G.R. No. 209287, February 3, 2015, J. Lucas P. Bersamin
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 ascertain its meaning by
interpretation and applied it in a decision, this would surely cause confusion and instability
in judicial processes and court decisions. Herein, the Executive has violated the GAA when it
stated that savings as a concept is an ordinary species of interpretation that calls for
legislative, instead of judicial determination
Facts:
The respondents maintain that the issues in these consolidated cases were
mischaracterized and unnecessarily constitutionalized; that the Court’s interpretation of
savings can be overturned by legislation considering that savings is defined in the General
Appropriations Act (GAA), hence making savings a statutory issue; that the withdrawn
unobligated allotments and unreleased appropriations constitute savings and may be used
for augmentation; and that the Court should apply legally recognized norms and principles,
most especially the presumption of good faith, in resolving their motion.
Issue:
Whether or not the Executive branch has violated the GAA.
Ruling:
Yes, the Executive branch has violated the GAA when it stated that savings as a
concept is an ordinary species of interpretation that calls for legislative, instead of judicial,
determination.
The Legislature under our form of government is assigned the task and the power
to make and enact laws, but not to interpret them. This is more true with regard to the
interpretation of the basic law, the Constitution, which is not within the sphere of the
Legislative department. 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 ascertain
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, if a final court determination of a case based on a judicial
interpretation of the law of the Constitution may be undermined or even annulled by a
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subsequent and different interpretation of the law or of the Constitution by the Legislative
department then it would be neither wise nor desirable, since it clearly violate of the
fundamental, principles of our constitutional system of government, particularly those
governing the separation of powers.
CANDELARIO L. VERZOSA, JR. (IN HIS FORMER CAPACITY AS EXECUTIVE
DIRECTOR OF THE COOPERATIVE DEVELOPMENT AUTHORITY), PETITIONER,
VS. GUILLERMO N. CARAGUE (IN HIS OFFICIAL CAPACITY AS CHAIRMAN OF
THE COMMISSION ON AUDIT), RAUL C. FLORES, CELSO D. GANGAN, SOFRONIO
B. URSAL AND COMMISSION ON AUDIT, RESPONDENTS.
[G.R. No. 157838 : February 07, 2012]
Facts:
This resolves the motion for reconsideration of our Decision dated March 8, 2011 affirming
COA Decision Nos. 98-424 and 2003-061 dated October 21, 1998 and March 18, 2003,
respectively. We upheld the COA's ruling that petitioner is personally and solidarily liable
for the amount of P881,819.00 under Notice of Disallowance No. 93-0016-101.
Issue:
Whether the Decision dated March 8, 2011 should be reversed.
Ruling:
There was no violation of COA rules
In Arriola v. COA,[4] this Court ruled that the disallowance made by the COA was not
sufficiently supported by evidence, as it was based on undocumented claims. The
documents that were used as basis of the COA Decision were not shown to petitioners
therein despite their repeated demands to see them; they were denied access to the actual
canvass sheets or price quotations from accredited suppliers. Absent due process and
evidence to support COA's disallowance, COA's ruling on petitioners' liability has no basis.
Reiterating the above declaration, National Center for Mental Health Management v. COA,
likewise ruled that price findings reflected in a report are not, in the absence of the actual
canvass sheets and/or price quotations from identified suppliers, valid bases for outright
disallowance of agency disbursements for government projects.
The aforesaid jurisprudence became the basis of COA Memorandum No. 97-012 dated
March 31, 1997 which contained guidelines on evidence to support audit findings of overpricing. In the interest of fairness, transparency and due process, it was provided that
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copies of the documents establishing the audit findings of over-pricing are to be made
available to the management of the audited agency.
The memorandum laid down the following specific guidelines:
3.1 When the price/prices of a transaction under audit is found beyond the allowable
ten percent (10%) above the prices indicated in reference price lists referred to in
pa[r]. 2.1 as market price indicators, the auditor shall secure additional evidence to
firm-up the initial audit finding to a reliable degree of certainty.
3.2 To firm-up the findings to a reliable degree of certainty, initial findings of overpricing based on market price indicators mentioned in pa[r]. 2.1 above have to be
supported with canvass sheets and/or price quotations indicating:
a) the identities/names of the suppliers or sellers;
b) the availability of stock sufficient in quantity to meet the requirements of the
procuring agency;
c) the specifications of the items which should match those involved in the finding
of over-pricing; and
d) the purchase/contract terms and conditions which should be the same as those
of the questioned transaction. x x x x
Contrary to the thrust of Justice Sereno's dissent, the lack of compliance with the above
guidelines did not invalidate the audit report for violation of the CDA's right to due process.
We categorically ruled in Nava v. Palattao that neither Arriola nor the COA Memorandum
No. 97-012 can be given any retroactive effect. Thus, although Arriola was already
promulgated at the time, it is not correct to say that the COA in this case violated the aforequoted guidelines which have not yet been issued at the time the audit was conducted in
1993.
As to COA Resolution No. 90-43 dated September 10, 1990, while indeed it authorized the
disclosure or identification of the sources of data gathered by the Price Evaluation DivisionTSO in the conduct of its data gathering and price monitoring activities, perusal of this
resolution failed to indicate that the disclosure of the names and identities of suppliers who
provided the data during price monitoring activities of the TSO formed part of the
evidentiary process in audit findings of overpricing and not merely to guide the agencies
on where to procure their supplies. COA Resolution No. 90-43 reads as follows:
WHEREAS, it inheres in its constitutional mandate for this Commission to assist in the
development efforts of government by providing audit services with a view to avoiding loss
and wastage of public funds and property;
WHEREAS, in pursuance of such mandate, the determination of the reasonableness of
price is an essential aspect of the audit of procurement in goods and services;
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WHEREAS, towards that end, the Price Evaluation Division (PED) of the Technical Services
Office (TSO), this commission, provides the Auditors with reference values which are
obtained thru a valid canvass in the open market;
WHEREAS, the price findings of the TSO that result from such audit determination of price
reasonableness at times adversely affect auditees who would request TSO to disclose or
identify the sources of these price quotations set by PED so that they can procure their
supply needs from said sources;
WHEREAS, this Commission is cognizant of the national policy of transparency in
government operations;
WHEREAS, this Commission perceives no legal impediment to the disclosure or
identification of the sources of price data which will ensure economy, efficiency and
effectiveness in government procurement;
NOW, THEREFORE, in keeping with the national policy of transparency, the commission
Proper has resolved, as it does hereby resolve, to authorize the disclosure or identification
of the sources of data gathered by the Price Evaluation Division, TSO in the conduct of its
data gathering and monitoring activities;
Be it further resolved that in order to carry out such policy of disclosure, the Price Monitor
Bulletin, a COA publication, contain not only specific items and prices of goods and
services but also the names and identities of responsive suppliers who provided the data
during the canvass conducted by the PED, TSO. (Emphasis and underscoring supplied.)
Accordingly, COA Memorandum No. 97-012 was issued on March 31, 1997 in view of the
Commission's recognition that "[t]here is a need to clarify the role and status of a price
reference data, such as those produced by the Technical Services Office, in the audit
evidence process with respect to findings of overpricing." It is therefore improper to apply
this regulation to the post-audit conducted in the year 1993 on the subject transaction.
Further, it must be noted that petitioner in requesting reconsideration of the audit
disallowance, did not make a demand for the production of actual canvass sheets. Neither
did he question the correctness of the reference values used by the TSO. Petitioner only
pointed out that the date of canvass conducted by the TSO does not coincide with the date
of purchase. To this the COA-TSO countered that "there was no showing that the foreign
exchange rate changed during the latter part of 1992 that would have significantly increased
the prices of computers." Petitioner nonetheless assailed the price comparison of the
branded computers purchased by the CDA with non-branded computers, which the dissent
now deems as a right of preference or an exercise of discretion on the part of CDA.
COA Upheld the Auditor's Position that Brand is Irrelevant on the Basis of Findings of its
Technical Personnel
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The COA, under the Constitution, is empowered to examine and audit the use of funds by
an agency of the national government on a post-audit basis. For this purpose, the
Constitution has provided that the COA "shall have exclusive authority, subject to the
limitations in this Article, to define the scope of its audit and examination, establish the
techniques and methods required therefor, 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.” As such, CDA's decisions regarding procurement of
equipment for its own use, including computers and its accessories, is subject to the COA's
auditing rules and regulations for the prevention and disallowance of irregular,
unnecessary, excessive and extravagant expenditures. Necessarily, CDA's preferences
regarding brand of its equipment have to conform to the criteria set by the COA rules on
what is reasonable price for the items purchased.
The dissent points out that COA Circular No. 85-55-A itself provides that in determining
whether the price is excessive, the brand of products may be considered, thus:
D - Brand of Products
Products of recognized brands coming from countries known for producing such quality
products are relatively expensive.
Ex. - Solingen scissors and the like which are made in Germany are more expensive than
scissors which do not carry such brand and are not made in Germany.
In this case, however, brand information was found by the COA's TSO Director, and also
the Information Technology Center (ITC) Director Marieta SF. Acorda as irrelevant to the
determination of the reasonableness of the price of the computers purchased by CDA from
Tetra.
Director Jorge H.L. Perez of the TSO in his Memorandum dated April 24, 1995 addressed
to the Legal Office Director of the COA explained their position as follows:
xxxx
1. On the allegation that Trigem and Genesis computers are not comparable since it is like
comparing apples with oranges - As a general rule/procedure, verification by TSO of the
price of an item requires comparison with the same/similar classification/group of items.
The items would then have the same specifications unless stated otherwise in the price
findings of the Office. In this case, the reference values are in accordance with the
specifications but exclusive of the "branded" information, since this was not stated in the
P.O./Invoice, which was used as basis of canvass. Since Trigem and Genesis are both
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computers of the same general characteristics/attributes, the branded and non-branded
labels propounded by the supplier is of scant consideration.
As regards the UPS, the enumerated advantages of the delivered items are the same
advantages that can be generated from a UPS of the same specifications and standard
features. In this case, the reference value pertains to a UPS with the same capacity, input,
output, battery packed and back-up time, except for the brand. x x x x
On her part, COA Auditor Luzviminda V. Rubico maintained that what is important is that
the specifications and functions of Genesis and Trigem computers are similar. She pointed
out that "if the comparison of the prices for the disallowances issued was erroneous because
what was compared was Genesis brand [versus] Trigem, then the bidding conducted by
CDA would not be acceptable since in the Abstract of Bids, prices were not based on similar
brands."
Director Acorda of the COA ITC likewise expressed a similar view when asked for comment
regarding the penalty points imposed by the CDA after the result of the DAP technical
evaluation initially showed that Tetra was ranked lowest. Thus, she explained in her
December 9, 1996 memorandum addressed to COA Legal Counsel Director Habitan:
1. On the first issue - we observed that no additional computer features were introduced
in CDA's grading system, rather the bidders were penalized for non-compliance with
technical specifications fixed by CDA.
On CDA's representation with the Development Academy of the Philippines - Technical
Evaluation Committee (DAP Committee) and based on the grading system devised by the
former, the DAP Committee agreed to impose penalties for non-compliance of the bids
with the technical specifications. Hereunder are their reasons for the penalties and our
comments thereto:
1.1 Columbia Computer Center (Columbia) and MicroCircuits Corporation (MCC) were
penalized because the microprocessor of the computer hardware they delivered for
evaluation were AMD and not Intel as required in the technical specification.
AMD and Intel are both microprocessor brands. It rarely malfunctions. Hence, the
difference in brands, as in this case, will not affect the efficiency of the computer's
performance. However, Intel microprocessors are more expensive and are manufactured
by Intel Corporation which pioneered the production of microprocessors for personal
computers.
1.2 Columbia was penalized because the ROM BIOSes of the computer hardware they
delivered were AcerBios, a deviation from the technical specifications which required ROM
BIOSes licensed by IBM. AMI, Phoenix or Awards.
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This will not affect the efficiency of the computer's performance. What is important is that
these ROM BIOSes are legal or licensed.
1.3 Columbia was again penalized because the casing of the computer they delivered for
evaluation in the Tower 386DX category has a desktop casing and not tower casing as
provided in the technical specifications.
Casings do not affect the efficiency of the computer's performance but may affect office
furniture requirements such as the design of the computer tables.
1.4 Tetra Corporation (Tetra) was penalized because the RAM of the Notebook it delivered
for evaluation was only 640K instead of 2M (expandable).
We agree that RAM capacity will affect the efficiency of the computer's performance.
2. On the second issue - the Benchmark testing conducted by the DAP Committee in
which Tetra got the lowest score in terms of Technical Evaluation is not a sufficient basis
for us to determine whether or not Trigem computers are inferior to the computer brands
offered by the other bidders.
In Benchmark Testing, weights are allocated to the different technical features of a
computer. The computers are then evaluated/appraised using diagnostic software and
ranked in accordance with the results of such evaluation/appraisal. The resulting ranking
merely suggests which computer best the appraisals. (Underscoring supplied.)
In the light of the foregoing consistent stand of its own technical personnel having
expertise in computer technology, the COA upheld the auditor's finding that brand was
irrelevant to determining the reasonableness of the price at which CDA purchased the
subject computers. It is not for this Court, as the dissent attempts, to make assertions to
the contrary, i.e., that the brand preferred by CDA was superior to another brand or generic
computer having similar specifications/functions and to which the price of the branded
computer was compared by respondents. Whether a particular brand of computer or
microprocessor is of superior quality is not subject to judicial notice. Judicial notice is the
cognizance of certain facts which judges may properly take and act on without proof
because they already know them.
The dissent also asserted that it is "unfair to compare Tetra's proposed Trigem computers
to a computer clone that was not even qualified to be bidded on or was not subjected to
the same hardware benchmark testing." But as COA ITC Director Acorda had explained in
her December 9, 1996 memorandum, such Benchmark Testing conducted by the DAP-TEC
is not a sufficient basis for them to determine whether or not Trigem computers are inferior
to the computer brands offered by the other bidders.
COA's observation that CDA should have been entitled to volume discount was valid
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Under COA Circular No. 85-55-A, the price is deemed excessive if the discounts allowed in
bulk purchases is not reflected in the price offered or in the award or in the
purchase/payment documents. This implies that bulk purchases are expected to be
accompanied by discounts that should have resulted in lowering the price of items, which
is contrary to the dissent's stance that the supplier TETRA was not legally obligated to give
such discount to CDA. COA noted that CDA should have been entitled to volume discount
from the supplying dealer considering the number of units it procured from them. Instead
of explaining why there was no volume discount at all reflected in the bid or
purchase/payment documents, petitioner claimed that other buyers even bought the same
computers at higher prices from Tetra. However, when the sales invoices issued to other
companies were examined by the COA, it was found that only one unit was procured by
each. Hence, it was not pure conjecture on the part of COA to take into consideration the
absence of volume discount. Whether or not the other bidders actually committed to give
volume discount is beside the point, as the subject of post-audit was the reasonableness of
the price already paid to Tetra by CDA.
No grave abuse of discretion committed by COA in holding petitioner personally
and solidarily liable for the overpricing of the computers procured by CDA
Pursuant to Section 103 of P.D. No. 1445 and Section 19 of the Manual on the Certificates of
Settlement of Balances, petitioner was found liable for the audit disallowances totaling
P881,819.00 representing the overprice of the computers purchased by CDA. Petitioner's
participation in the transaction was not limited to his signature/approval of the purchase
as recommended by the PBAC.
As pointed out in our Decision, records showed it was petitioner who ordered the
reconstitution of the PBAC which nullified the previous bidding conducted in December
1991. He further secured the services of the DAP-TEC for technical evaluation and signed
the agreement for the said technical assistance when it is already the duty of the PBAC
Chairman. Notwithstanding petitioner's claim that it was part of his duties as Executive
Director to "[sign] outgoing communications/letters except letters addressed to Heads of
[Office], Congressmen, Senators and to the Office of the President," [11] the fact remains
that the services of DAP-TEC for P15,000.00 fee were availed of at his instance. As it turned
out, the DAP-TEC came out with two different technical evaluation reports, the second
having been antedated but also signed by DAP-TEC Director Minerva Mecina who
admitted it was her signature in both documents but claimed she was unaware that she
had signed two different documents. The discrepancies in the two reports (in the first
impartial result, Tetra got the lowest ranking but in the second result made after CDA
ordered certain changes in the grading system, Tetra eventually won) was found by Auditor
Rubico to be irregular and indicative of bad faith.
The dissent assails such "alleged" instances of manipulation mentioned by Auditor Rubico
as belatedly raised and contends that the November 23, 1995 letter of the DAP-TEC
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technician failed to show that Mr. Rey Evangelista (staff of the PBAC Chairman) went to
DAP-TEC on instructions by the petitioner. These circumstances surrounding the issuance
of the DAP-TEC technical evaluation results were additionally mentioned by Auditor
Rubico to the respondents so that the latter may be apprised that the members of the PBAC,
including petitioner, could not have been unaware of efforts to influence the outcome of
the technical evaluation, and not as ground per se of the disallowance. Hence, there was
nothing anomalous in the fact that Auditor Rubico only disclosed these additional findings
in the course of her audit to the Commission's Legal Counsel and other COA officials when
she was asked to comment on the appeal/request for reconsideration made by CDA from
the notice of disallowance.
It is to be noted that petitioner never denied there were two different results of DAP-TEC
technical evaluation. To refute the imputation of irregularity, petitioner submitted a
certification from the incumbent CDA Executive Director that as per inventory, only
fourteen out of the subject forty-four Trigem computers have become unserviceable, which
he said vindicated their choice of branded computers. Thus, the supposedly "fraudulent"
imposition of penalties in the DAP-TEC second report during the physical testing of the
computer hardware, construed as manipulative endeavor by the COA Auditor, is now moot
and academic. But as already explained in our Decision, the continued serviceability of the
purchased items did not justify the overpricing nor render moot the disallowances based
on post-audit examination of the pertinent bid and purchase documents.
Finally, we find no merit in the assertion that in ordering the petitioner to reimburse the
disallowed amount, this Court misapplied the solidary nature of the liability determined
by the COA for petitioner and the other members of the PBAC. We have categorically
stated that the Court upholds the COA's ruling that petitioner is personally and solidarily
liable for the overpricing in the computers purchased by CDA. The directive for the
payment of the amount of disallowance finally determined by the COA did not change the
nature of the obligation as solidary because the demand thus made upon petitioner did not
foreclose his right as solidary debtor to proceed against his co-debtors/obligors, in this case
the members of the PBAC charged under Notice of Disallowance No. 93-0016-101, for their
share in the total amount of disallowance.[12]
Petitioner is therefore liable to restitute the P881,819.00 to the Government without
prejudice, however, to his right to recover it from persons who were solidarily liable with
him.
We stress anew that it is the general policy of the Court to sustain the decisions of
administrative authorities, especially one which is constitutionally-created, not
only on the basis of the doctrine of separation of powers but also for their presumed
expertise in the laws they are entrusted to enforce. Findings of quasi-judicial
agencies, such as the COA, which 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 the
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decision and order are not tainted with unfairness or arbitrariness that would
amount to grave abuse of discretion.
There being no grave abuse of discretion in the findings and conclusions of the COA in this
case, the Court finds no cogent reason to deviate from these long-settled rules.
CHECKS AND BALANCES
MARIA CAROLINA P. ARAULLO, CHAIRPERSON, BAGONG ALYANSANG
MAKABAYAN, et al. vs. BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES, et al..
G.R. No. 209287 (Consolidated), July 01, 2014, J. Bersamin
“Under this carefully laid-out constitutional system, the DAP violates the principles
of sepa-ration of powers and checks and balances on two (2) counts: first, by pooling funds
that cannot at all be classified as savings; and second, by using these funds to finance projects
outside the Executive or for projects with no appropriation cover.
“These violations – in direct violation of the “no transfer” proviso of [Sec. 25(5)] of
Article VI of the Constitution – had the effect of allowing the Executive to encroach on the
domain of Congress in the budgetary process. By facilitating the use of funds not classified as
savings to finance items other than for which they have been appropriated, the DAP in effect
allowed the President to circumvent the constitutional budgetary process and to veto items
of the GAA without subjecting them to the 2/3 overriding veto that Congress is empowered to
exercise.”
Facts:
The controversy, in the present case, surfaced at the fore of public consciousness
when Sen. Jinggoy Estrada in his privilege speech revealed that some Senators, including
himself, had been allotted an additional PhP50 Million each as incentive for voting in favor
of the impeachment of Chief Justice Renato Corona. In response, DBM Secretary Florencio
Abad explained that the allocations were part of the Disbursement Acceleration Program
(DAP) devised to accelerate government spending. He further explained that the funds
under the DAP were sourced from (1) unreleased appropriations under Personnel Services;
(2) unprogrammed funds; (3) carry-over appropriations unreleased from the previous year;
and (4) budget for slow-moving items or projects that had been realigned to support fasterdisbursing projects.
The DBM listed the following as the legal bases for the DAP’s use of savings, namely:
(1) Sec. 25(5), Article VI of the 1987 Constitution, which granted to the President the
authority to augment an item for his office in the general appropriations law; (2) Sec. 49
(Authority to Use Savings for Certain Purposes) and Sec. 38 (Suspension of Expenditure
Appropriations), Chapter 5, Book VI of Executive Order (EO) No. 292 (Administrative Code
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of 1987); and (3) the General Appropriations Acts (GAAs) of 2011, 2012 and 2013, particularly
their provisions on the (a) use of savings; (b) meanings of savings and augmentation; and
(c) priority in the use of savings. As for the use of unprogrammed funds under the DAP,
the DBM cited as legal bases the special provisions on unprogrammed fund contained in
the GAAs of 2011, 2012, and 2013.
Petitioners, representing various national, sectoral and public interest groups,
through petitions for certiorari, prohibition and mandamus, seek to have the Disbursement
Acceleration Program (DAP), National Budget Circular (NBC) No. 541 and related
issuances, being implemented by respondent officials, and the consequent and related acts
thereto declared ultra vires.
Issue:
Whether or not the DAP violates the principles of checks and balances and the separation of powers as integrated into the budgetary process;
Ruling:
The Court does not need to discuss whether or not the DAP and its implementation
through the various circulars and memoranda of the DBM transgressed the system of
checks and balances in place in our constitutional system. The Court’s earlier expositions
on the DAP and its implementing issuances infringing the doctrine of separation of powers
effectively addressed this particular concern.
J. Brion, Separate Opinion:
YES, the DAP runs afoul with the principles of checks and balances and the
separation of powers.
Consonant with the “complementary principle of checks and balances”, the Executive
and the Legislative Branches of Government perform their constitutionally-defined roles
in the budget process. At its inception, the Executive submits to the Legislature, the
proposed budget with defined sources of financing prepared in accordance with the process
and form required by law. Thereafter, the Congress tackles such proposed budget and
churns out a bill. Nevertheless, the President can exercise his item-veto power on the bill,
and on the other hand Congress may override the same by a vote of 2/3 of all of its members.
Anyhow, a general appropriations bill shall definitely become a law, either by presidential
approval or inaction, and being a law, “none of the three branches of government and the
constitutional bodies can thwart congressional budgetary will by crossing constitutional
boundaries through the transfer of appropriations or funds across departmental borders.”
This, notwithstanding, the President “may call Congress to special session at any
time, and his authority to certify a bill, including a special budget bill, for immediate
enactment to meet a public calamity or emergency.”
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These various measures are intended to meet exigencies and at the same ensure the
operation of the separation and checking principles in the budgetary process. However,
these measures cannot fully assure that all concerns will be adequately addressed and it is
in this scenario that the Executive’s additional authority becomes necessary to exercise
within the parameters set forth under the law.
Under this carefully laid-out constitutional system, the DAP violates the principles
of sepa-ration of powers and checks and balances on two (2) counts: first, by pooling funds
that cannot at all be classified as savings; and second, by using these funds to finance
projects outside the Executive or for projects with no appropriation cover.
These violations – in direct violation of the “no transfer” proviso of [Sec. 25(5)] of
Article VI of the Constitution – had the effect of allowing the Executive to encroach on the
domain of Congress in the budgetary process. By facilitating the use of funds not classified
as savings to finance items other than for which they have been appropriated, the DAP in
effect allowed the President to circumvent the constitutional budgetary process and to veto
items of the GAA without subjecting them to the 2/3 overriding veto that Congress is
empowered to exercise.
Worse, the violation becomes even graver when xxx the funds provided to finance
appropriations in the Executive Department had been used for projects in the Legislature
and other constitutional bodies. In short, the violation allowed the constitutionallyprohibited transfer of funds across constitutional boundaries.
LEGISLATIVE DEPARTMENT
POWERS OF CONGRESS
LAWYERS AGAINST MONOPOLY AND POVERTY (LAMP), REPRESENTED BY ITS
CHAIRMAN AND COUNSEL, CEFERINO PADUA, et al. VS. THE SECRETARY OF
BUDGET AND MANAGEMENT, THE TREASURER OF THE PHILIPPINES, THE
COMMISSION ON AUDIT, AND THE PRESIDENT OF THE SENATE AND THE
SPEAKER OF THE HOUSE OF REPRESENTATIVES IN REPRESENTATION OF THE
MEMBERS OF THE CONGRESS
[G.R. No. 164987 : April 24, 2012]
Facts:
For consideration of the Court is an original action for certiorari assailing the
constitutionality and legality of the implementation of the Priority Development
Assistance Fund (PDAF) as provided for in Republic Act (R.A.) 9206 or the General
Appropriations Act for 2004 (GAA of 2004). Petitioner Lawyers Against Monopoly and
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Poverty (LAMP), a group of lawyers who have banded together with a mission of
dismantling all forms of political, economic or social monopoly in the country,[1] also
sought the issuance of a writ of preliminary injunction or temporary restraining order to
enjoin respondent Secretary of the Department of Budget and Management (DBM) from
making, and, thereafter, releasing budgetary allocations to individual members of Congress
as “pork barrel” funds out of PDAF. LAMP likewise aimed to stop the National Treasurer
and the Commission on Audit (COA) from enforcing the questioned provision.
Issue:
Whether the petition should be dismissed for failure to establish factual and legal basis to
support its claims, thereby lacking an essential requisite of judicial review—an actual case
or controversy.
Ruling:
To the Court, the case boils down to these issues: 1) whether or not the mandatory
requisites for the exercise of judicial review are met in this case; and 2) whether or not the
implementation of PDAF by the Members of Congress is unconstitutional and illegal.
Like almost all powers conferred by the Constitution, the power of judicial review is subject
to limitations, to wit: (1) there must be an actual case or controversy calling for the exercise
of judicial power; (2) the person challenging the act must have the standing to question the
validity of the subject act or issuance; otherwise stated, he must have a personal and
substantial interest in the case such that he has sustained, or will sustain, direct injury as a
result of its enforcement; (3) the question of constitutionality must be raised at the earliest
opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.[16]
An aspect of the “case-or-controversy” requirement is the requisite of “ripeness.” In the
United States, courts are centrally concerned with whether a case involves uncertain
contingent future events that may not occur as anticipated, or indeed may not occur at all.
Another concern is the evaluation of the twofold aspect of ripeness: first, the fitness of the
issues for judicial decision; and second, the hardship to the parties entailed by withholding
court consideration. In our jurisdiction, the issue of ripeness is generally treated in terms
of actual injury to the plaintiff. Hence, a question is ripe for adjudication when the act
being challenged has had a direct adverse effect on the individual challenging it.[17]
In this case, the petitioner contested the implementation of an alleged unconstitutional
statute, as citizens and taxpayers. According to LAMP, the practice of direct allocation and
release of funds to the Members of Congress and the authority given to them to propose
and select projects is the core of the law’s flawed execution resulting in a serious
constitutional transgression involving the expenditure of public funds. Undeniably, as
taxpayers, LAMP would somehow be adversely affected by this.
A finding of
unconstitutionality would necessarily be tantamount to a misapplication of public funds
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which, in turn, cause injury or hardship to taxpayers. This affords “ripeness” to the present
controversy.
Further, the allegations in the petition do not aim to obtain sheer legal opinion in the
nature of advice concerning legislative or executive action. The possibility of constitutional
violations in the implementation of PDAF surely involves the interplay of legal rights
susceptible of judicial resolution. For LAMP, this is the right to recover public funds
possibly misapplied by no less than the Members of Congress. Hence, without prejudice
to other recourse against erring public officials, allegations of illegal expenditure of public
funds reflect a concrete injury that may have been committed by other branches of
government before the court intervenes. The possibility that this injury was indeed
committed cannot be discounted. The petition complains of illegal disbursement of public
funds derived from taxation and this is sufficient reason to say that there indeed exists a
definite, concrete, real or substantial controversy before the Court.
Anent locus standi, “the rule is 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
sustained, direct injury as a result of its enforcement. The gist of the question of standing
is whether a party alleges “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.”[In public
suits, the plaintiff, representing the general public, asserts a “public right” in assailing an
allegedly illegal official action. The plaintiff may be a person who is affected no differently
from any other person, and could be suing as a “stranger,” or as a “citizen” or “taxpayer.”[20]
Thus, taxpayers have been 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
public funds are wasted through the enforcement of an invalid or unconstitutional law.[21]
Of greater import than the damage caused by the illegal expenditure of public funds is the
mortal wound inflicted upon the fundamental law by the enforcement of an invalid statute.
Here, the sufficient interest preventing the illegal expenditure of money raised by taxation
required in taxpayers’ suits is established. Thus, in the claim that PDAF funds have been
illegally disbursed and wasted through the enforcement of an invalid or unconstitutional
law, LAMP should be allowed to sue. The case of Pascual v. Secretary of Public Works[23]
is authority in support of the petitioner:
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
expenditures of moneys raised by taxation and may therefore question the constitutionality
of statutes requiring expenditure of public moneys. [11 Am. Jur. 761, Emphasis supplied.]
Lastly, the Court is of the view that the petition poses issues impressed with paramount
public interest. The ramification of issues involving the unconstitutional spending of PDAF
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deserves the consideration of the Court, warranting the assumption of jurisdiction over the
petition.
Now, on the substantive issue.
The powers of government are generally divided into three branches: the Legislative, the
Executive and the Judiciary. Each branch is supreme within its own sphere being
independent from one another and it is this supremacy which enables the courts to
determine whether a law is constitutional or unconstitutional.[24] 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 in excess of 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.[25]
With these long-established precepts in mind, the Court now goes to the crucial question:
In allowing the direct allocation and release of PDAF funds to the Members of Congress
based on their own list of proposed projects, did the implementation of the PDAF provision
under the GAA of 2004 violate the Constitution or the laws?
The Court rules in the negative.
In determining whether or not a statute is unconstitutional, the Court does not lose sight
of the presumption of validity accorded to statutory acts of Congress. In Fariñas v. The
Executive Secretary,[26] the Court held that:
Every statute is presumed valid. The presumption is that the legislature intended to enact
a valid, sensible and just law and one which operates no further than may be necessary to
effectuate the specific purpose of the law. Every presumption should be indulged in favor
of the constitutionality and the burden of proof is on the party alleging that there is a clear
and unequivocal breach of the Constitution.
To justify the nullification of the law or its implementation, there must be a clear and
unequivocal, not a doubtful, breach of the Constitution. In case of doubt in the sufficiency
of proof establishing unconstitutionality, the Court must sustain legislation because “to
invalidate [a law] based on x x x baseless supposition is an affront to the wisdom not only
of the legislature that passed it but also of the executive which approved it.”[27] This
presumption of constitutionality can be overcome only by the clearest showing that there
was indeed an infraction of the Constitution, and only when such a conclusion is reached
by the required majority may the Court pronounce, in the discharge of the duty it cannot
escape, that the challenged act must be struck down.[28]
The petition is miserably wanting in this regard. LAMP would have the Court declare the
unconstitutionality of the PDAF’s enforcement based on the absence of express provision
in the GAA allocating PDAF funds to the Members of Congress and the latter’s
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encroachment on executive power in proposing and selecting projects to be funded by
PDAF. Regrettably, these allegations lack substantiation. No convincing proof was
presented showing that, indeed, there were direct releases of funds to the Members of
Congress, who actually spend them according to their sole discretion. Not even a
documentation of the disbursement of funds by the DBM in favor of the Members of
Congress was presented by the petitioner to convince the Court to probe into the truth of
their claims. Devoid of any pertinent evidentiary support that illegal misuse of PDAF in the
form of kickbacks has become a common exercise of unscrupulous Members of Congress,
the Court cannot indulge the petitioner’s request for rejection of a law which is outwardly
legal and capable of lawful enforcement. In a case like this, the Court’s hands are tied in
deference to the presumption of constitutionality lest the Court commits unpardonable
judicial legislation. The Court is not endowed with the power of clairvoyance to divine from
scanty allegations in pleadings where justice and truth lie.[29] Again, newspaper or
electronic reports showing the appalling effects of PDAF cannot be appreciated by the
Court, “not because of any issue as to their truth, accuracy, or impartiality, but for the
simple reason that facts must be established in accordance with the rules of evidence.”[30]
Hence, absent a clear showing that an offense to the principle of separation of powers was
committed, much less tolerated by both the Legislative and Executive, the Court is
constrained to hold that a lawful and regular government budgeting and appropriation
process ensued during the enactment and all throughout the implementation of the GAA
of 2004. The process was explained in this wise, in Guingona v. Carague:[31]
1. Budget preparation. The first step is essentially tasked upon the Executive Branch and
covers the estimation of government revenues, the determination of budgetary priorities
and activities within the constraints imposed by available revenues and by borrowing
limits, and the translation of desired priorities and activities into expenditure levels.
Budget preparation starts with the budget call issued by the Department of Budget and
Management. Each agency is required to submit agency budget estimates in line with the
requirements consistent with the general ceilings set by the Development Budget
Coordinating Council (DBCC).
With regard to debt servicing, the DBCC staff, based on the macro-economic projections
of interest rates (e.g. LIBOR rate) and estimated sources of domestic and foreign financing,
estimates debt service levels. Upon issuance of budget call, the Bureau of Treasury
computes for the interest and principal payments for the year for all direct national
government borrowings and other liabilities assumed by the same.
2. Legislative authorization. –– At this stage, Congress enters the picture and deliberates or
acts on the budget proposals of the President, and Congress in the exercise of its own
judgment and wisdom formulates an appropriation act precisely following the process
established by the Constitution, which specifies that no money may be paid from the
Treasury except in accordance with an appropriation made by law.
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xxx
3. Budget Execution. Tasked on the Executive, the third phase of the budget process covers
the various operational aspects of budgeting. The establishment of obligation authority
ceilings, the evaluation of work and financial plans for individual activities, the continuing
review of government fiscal position, the regulation of funds releases, the implementation
of cash payment schedules, and other related activities comprise this phase of the budget
cycle.
4. Budget accountability. The fourth phase refers to the evaluation of actual performance
and initially approved work targets, obligations incurred, personnel hired and work
accomplished are compared with the targets set at the time the agency budgets were
approved.
Under the Constitution, the power of appropriation is vested in the Legislature, subject to
the requirement that appropriation bills originate exclusively in the House of
Representatives with the option of the Senate to propose or concur with amendments.[32]
While the budgetary process commences from the proposal submitted by the President to
Congress, it is the latter which concludes the exercise by crafting an appropriation act it
may deem beneficial to the nation, based on its own judgment, wisdom and purposes. Like
any other piece of legislation, the appropriation act may then be susceptible to objection
from the branch tasked to implement it, by way of a Presidential veto. Thereafter, budget
execution comes under the domain of the Executive branch which deals with the
operational aspects of the cycle including the allocation and release of funds earmarked for
various projects. Simply put, from the regulation of fund releases, the implementation of
payment schedules and up to the actual spending of the funds specified in the law, the
Executive takes the wheel. “The DBM lays down the guidelines for the disbursement of the
fund. The Members of Congress are then requested by the President to recommend
projects and programs which may be funded from the PDAF. The list submitted by the
Members of Congress is endorsed by the Speaker of the House of Representatives to the
DBM, which reviews and determines whether such list of projects submitted are consistent
with the guidelines and the priorities set by the Executive.”[33] This demonstrates the
power given to the President to execute appropriation laws and therefore, to exercise the
spending per se of the budget.
As applied to this case, the petition is seriously wanting in establishing that individual
Members of Congress receive and thereafter spend funds out of PDAF. Although the
possibility of this unscrupulous practice cannot be entirely discounted, surmises and
conjectures are not sufficient bases for the Court to strike down the practice for being
offensive to the Constitution. Moreover, the authority granted the Members of Congress to
propose and select projects was already upheld in Philconsa. This remains as valid case
law. The Court sees no need to review or reverse the standing pronouncements in the said
case. So long as there is no showing of a direct participation of legislators in the actual
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spending of the budget, the constitutional boundaries between the Executive and the
Legislative in the budgetary process remain intact.
While the Court is not unaware of the yoke caused by graft and corruption, the evils
propagated by a piece of valid legislation cannot be used as a tool to overstep constitutional
limits and arbitrarily annul acts of Congress. Again, “all presumptions are indulged in favor
of constitutionality; one who attacks a statute, alleging unconstitutionality must prove its
invalidity beyond a reasonable doubt; that a law may work hardship does not render it
unconstitutional; that if any reasonable basis may be conceived which supports the statute,
it will be upheld, and the challenger must negate all possible bases; that the courts are not
concerned with the wisdom, justice, policy, or expediency of a statute; and that a liberal
interpretation of the constitution in favor of the constitutionality of legislation should be
adopted.”
MARIA CAROLINA P. ARAULLO, CHAIRPERSON, BAGONG ALYANSANG
MAKABAYAN et al., vs.
BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES et al.
G.R. No. 209287, February 3, 2015, J. Lucas P. Bersamin
Section 25(5), Article VI of the Constitution states: 5) No law shall be passed
authorizing any transfer of appropriations; however, the President, the President of the
Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court,
and the heads of Constitutional Commissions may, by law, be authorized to augment any
item in the general appropriations law for their respective offices from savings in other items
of their respective appropriations.
Section 39, Chapter 5, Book VI of the Administrative Code provide: Section 39.
Authority to Use Savings in Appropriations to Cover Deficits.—Except as otherwise provided
in the General Appropriations Act, any savings in the regular appropriations authorized in
the General Appropriations Act for programs and projects of any department, office or
agency, may, with the approval of the President, be used to cover a deficit in any other item
of the regular appropriations: Provided, that the creation of new positions or increase of
salaries shall not be allowed to be funded from budgetary savings except when specifically
authorized by law: Provided, further, that whenever authorized positions are transferred from
one program or project to another within the same department, office or agency, the
corresponding amounts appropriated for personal services are also deemed transferred,
without, however increasing the total outlay for personal services of the department, office or
agency concerned.
On the other hand, Section 39 is evidently in conflict with the plain text of Section
25(5), Article VI of the Constitution because it allows the President to approve the use of any
savings in the regular appropriations authorized in the GAA for programs and projects of any
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department, office or agency to cover a deficit in any other item of the regular appropriations.
As such, Section 39 violates the mandate of Section 25(5) because the latter expressly limits
the authority of the President to augment an item in the GAA to only those in his own
Department out of the savings in other items of his own Department’s appropriations.
Accordingly, Section 39 cannot serve as a valid authority to justify cross-border transfers
under the DAP. Augmentations under the DAP which are made by the Executive within its
department shall, however, remain valid so long as the requisites under Section 25(5) are
complied with.
Facts:
The respondents maintain that the issues in these consolidated cases were
mischaracterized and unnecessarily constitutionalized; that the Court’s interpretation of
savings can be overturned by legislation considering that savings is defined in the General
Appropriations Act (GAA), hence making savings a statutory issue; that the withdrawn
unobligated allotments and unreleased appropriations constitute savings and may be used
for augmentation; and that the Court should apply legally recognized norms and principles,
most especially the presumption of good faith, in resolving their motion.
Issues:
1) Whether or not the withdrawn unobligated allotments and unreleased
appropriations under the DAP may be used for augmentation
2) Whether or not the power to augment can be used to fund non-existent
provisions in the GAA
3) Whether or not the unprogrammed funds may only be released upon proof that
the total revenues exceeded the target
Ruling:
1. No, the withdrawn unobligated allotments and unreleased appropriations under
the DAP may not be used for augmentation
Section 25(5), Article VI of the Constitution states:
5) No law shall be passed authorizing any transfer of appropriations; however, the
President, the President of the Senate, the Speaker of the House of Representatives, the
Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by
law, be authorized to augment any item in the general appropriations law for their
respective offices from savings in other items of their respective appropriations.
Section 38 and Section 39, Chapter 5, Book VI of the Administrative Code provide:
Section 38. Suspension of Expenditure of Appropriations. - Except as otherwise
provided in the General Appropriations Act and whenever in his judgment the public
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interest so requires, the President, upon notice to the head of office concerned, is
authorized to suspend or otherwise stop further expenditure of funds allotted for any
agency, or any other expenditure authorized in the General Appropriations Act, except for
personal services appropriations used for permanent officials and employees.
Section 39. Authority to Use Savings in Appropriations to Cover Deficits.—Except
as otherwise provided in the General Appropriations Act, any savings in the regular
appropriations authorized in the General Appropriations Act for programs and projects of
any department, office or agency, may, with the approval of the President, be used to cover
a deficit in any other item of the regular appropriations: Provided, that the creation of new
positions or increase of salaries shall not be allowed to be funded from budgetary savings
except when specifically authorized by law: Provided, further, that whenever authorized
positions are transferred from one program or project to another within the same
department, office or agency, the corresponding amounts appropriated for personal
services are also deemed transferred, without, however increasing the total outlay for
personal services of the department, office or agency concerned.
Unobligated allotments were encompassed by the first part of the definition of
"savings" in the GAA, that is, as "portions or balances of any programmed appropriation in
this Act free from any obligation or encumbrance."
Section 38 refers to the authority of the President "to suspend or otherwise stop
further expenditure of funds allotted for any agency, or any other expenditure authorized
in the General Appropriations Act." When the President suspends or stops expenditure of
funds, savings are not automatically generated until it has been established that such funds
or appropriations are free from any obligation or encumbrance, and that the work, activity
or purpose for which the appropriation is authorized has been completed, discontinued or
abandoned.
Although the withdrawal of unobligated allotments may have effectively resulted in
the suspension or stoppage of expenditures through the issuance of negative Special
Allotment Release Orders (SARO), the reissuance of withdrawn allotments to the original
programs and projects is a clear indication that the program or project from which the
allotments were withdrawn has not been discontinued or abandoned. Consequently, as the
Court has pointed out in the Decision, "the purpose for which the withdrawn funds had
been appropriated was not yet fulfilled, or did not yet cease to exist, rendering the
declaration of the funds as savings impossible." In this regard, the withdrawal and transfer
of unobligated allotments remain unconstitutional. But then, whether the withdrawn
allotments have actually been reissued to their original programs or projects is a factual
matter determinable by the proper tribunal.
Also, withdrawals of unobligated allotments pursuant to NBC No. 541 which
shortened the availability of appropriations for MOOE and capital outlays, and those which
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were transferred to PAPs that were not determined to be deficient, are still constitutionally
infirm and invalid.
At this point, it is likewise important to underscore that the reversion to the General
Fund of unexpended balances of appropriations, savings included, pursuant to
Administrative Code does not apply to the Constitutional Fiscal Autonomy Group (CFAG),
which include the Judiciary, Civil Service Commission, Commission on Audit, Commission
on Elections, Commission on Human Rights, and the Office of the Ombudsman. The
reason for this is that the fiscal autonomy enjoyed by the CFAG contemplates a guarantee
of full flexibility to allocate and utilize their resources with the wisdom and dispatch that
their needs require. It recognizes the power and authority to levy, assess and collect fees,
fix rates of compensation not exceeding the highest rates authorized by law for
compensation and pay plans of the government and allocate and disburse such sums as
may be provided by law or prescribed by them in the course of the discharge of their
functions.
The Judiciary, the Constitutional Commissions, and the Ombudsman must have the
independence and flexibility needed in the discharge of their constitutional duties. The
imposition of restrictions and constraints on the manner the independent constitutional
offices allocate and utilize the funds appropriated for their operations is anathema to fiscal
autonomy and violative not only of the express mandate of the Constitution but especially
as regards the Supreme Court, of the independence and separation of powers upon which
the entire fabric of our constitutional system is based.
On the other hand, Section 39 is evidently in conflict with the plain text of Section
25(5), Article VI of the Constitution because it allows the President to approve the use of
any savings in the regular appropriations authorized in the GAA for programs and projects
of any department, office or agency to cover a deficit in any other item of the regular
appropriations. As such, Section 39 violates the mandate of Section 25(5) because the latter
expressly limits the authority of the President to augment an item in the GAA to only those
in his own Department out of the savings in other items of his own Department’s
appropriations. Accordingly, Section 39 cannot serve as a valid authority to justify crossborder transfers under the DAP. Augmentations under the DAP which are made by the
Executive within its department shall, however, remain valid so long as the requisites under
Section 25(5) are complied with.
In this connection, the respondents must always be reminded that the Constitution
is the basic law to which all laws must conform. No act that conflicts with the Constitution
can be valid.
The Presidency in the execution of the laws cannot ignore or disregard what it
ordains. In its task of applying the law to the facts as found in deciding cases, the judiciary
is called upon to maintain inviolate what is decreed by the fundamental law. Even its power
of judicial review to pass upon the validity of the acts of the coordinate branches in the
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course of adjudication is a logical corollary of this basic principle that the Constitution is
paramount. It overrides any governmental measure that fails to live up to its mandates.
Thereby there is a recognition of its being the supreme law.
2. No, the power to augment cannot be used to fund non-existent provisions in the GAA
The Court recognized the encouraging effects of the DAP on the country’s economy,
and acknowledged its laudable purposes, most especially those directed towards
infrastructure development and efficient delivery of basic social services. It bears repeating
that the DAP is a policy instrument that the Executive, by its own prerogative, may utilize
to spur economic growth and development.
Nonetheless, the Decision did find doubtful those projects that appeared to have no
appropriation cover under the relevant GAAs on the basis that: (1) the DAP funded projects
that originally did not contain any appropriation for some of the expense categories
(personnel, MOOE and capital outlay); and (2) the appropriation code and the particulars
appearing in the SARO did not correspond with the program specified in the GAA.
The respondents assert, however, that there is no constitutional requirement for
Congress to create allotment classes within an item. What is required is for Congress to
create items to comply with the line-item veto of the President.
After a careful reexamination of existing laws and jurisprudence, Court finds merit
in the respondents’ argument. Indeed, Section 25(5) of the 1987 Constitution mentions of
the term item that may be the object of augmentation by the President, the Senate
President, the Speaker of the House, the Chief Justice, and the heads of the Constitutional
Commissions. For the President to exercise his item-veto power, it necessarily follows that
there exists a proper "item" which may be the object of the veto. An item, as defined in the
field of appropriations, pertains to "the particulars, the details, the distinct and severable
parts of the appropriation or of the bill.” An item of an appropriation bill obviously means
an item which, in itself, is a specific appropriation of money, not some general provision of
law which happens to be put into an appropriation bill.
On this premise, it may be concluded that an appropriation bill, to ensure that the
President may be able to exercise his power of item veto, must contain "specific
appropriations of money" and not only "general provisions" which provide for parameters
of appropriation.
Moreover, as Justice Carpio correctly pointed out, a valid appropriation may even
have several related purposes that are by accounting and budgeting practice considered as
one purpose, e.g., MOOE (maintenance and other operating expenses), in which case the
related purposes shall be deemed sufficiently specific for the exercise of the President‘s
item veto power. Finally, special purpose funds and discretionary funds would equally
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square with the constitutional mechanism of item-veto for as long as they follow the rule
on singular correspondence as herein discussed.
Accordingly, the item referred to by Section 25(5) of the Constitution is the last and
indivisible purpose of a program in the appropriation law, which is distinct from the
expense category or allotment class. There is no specificity, indeed, either in the
Constitution or in the relevant GAAs that the object of augmentation should be the expense
category or allotment class. In the same vein, the President cannot exercise his veto power
over an expense category; he may only veto the item to which that expense category belongs
to.
Nonetheless, this modified interpretation does not take away the caveat that only
DAP projects found in the appropriate GAAs may be the subject of augmentation by legally
accumulated savings. Whether or not the 116 DAP-funded projects had appropriation cover
and were validly augmented require factual determination that is not within the scope of
the present consolidated petitions under Rule 65.
3. Yes, unprogrammed funds may only be released upon proof that the total revenues
exceeded the target
To recall, the respondents justified the use of unprogrammed funds by submitting
certifications from the Bureau of Treasury and the Department of Finance (DOF) regarding
the dividends derived from the shares of stock held by the Government in governmentowned and controlled corporations. In the decision, the Court has held that the
requirement under the relevant GAAs should be construed in light of the purpose for which
the unprogrammed funds were denominated as "standby appropriations." Hence, revenue
targets should be considered as a whole, not individually; otherwise, Court would be
dealing with artificial revenue surpluses.
There must be consistent monitoring as a component of the budget accountability
phase of every agency’s performance in terms of the agency’s budget utilization as provided
in Book VI, Chapter 6, Section 51 and Section 52 of the Administrative Code of 1987.
Pursuant to the foregoing, the Department of Budget and Management (DBM) and
the Commission on Audit (COA) require agencies under various joint circulars to submit
budget and financial accountability reports (BFAR) on a regular basis, one of which is the
Quarterly Report of Income or Quarterly Report of Revenue and Other Receipts. On the
other hand, as Justice Carpio points out in his Separate Opinion, the Development Budget
Coordination Committee (DBCC) sets quarterly revenue targets for a specific fiscal
year. Since information on both actual revenue collections and targets are made available
every quarter, or at such time as the DBM may prescribe, actual revenue surplus may be
determined accordingly and releases from the unprogrammed fund may take place even
prior to the end of the fiscal year.
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ELECTORAL TRIBUNALS
HARLIN C. ABAYON vs. HOUSE OF REPRESENTATIVES ELECTORAL
TRIBUNAL (HRET) and RAUL A. DAZA
G.R. No. 222236 | G.R. No. 223032 | May 3, 2016 | Mendoza, J.
The HRET, as the sole judge of all contests relating to the election, returns, and
qualifications of members of the House of Representatives, may annul election results if in its
determination, fraud, terrorism or other electoral irregularities existed to warrant the
annulment. Because in doing so, it is merely exercising its constitutional duty to ascertain
who among the candidates received the majority of the valid votes cast.
FACTS:
Abayon and Daza were contenders for the position of Representative in the First
Legislative District of Northern Samar during the May 13, 2013 Elections. Out of the votes
cast in the 332 clustered precincts in the First District of Northern Samar, Abayon emerged
as the winner after obtaining the majority vote of 72,857. Daza placed second with a total
of 72,805 votes. The difference was 52 votes. On May 17, 2013, the Provincial Board of
Canvassers of Northern Samar proclaimed Abayon as the duly elected member of the HOR
for the said legislative district.
On May 31, 2013, Daza filed his Election Protest challenging the elections results in
25 clustered precincts in the Municipalities of Biri, Capul, Catarman, Lavezares, San Isidro,
and Victoria. In his protest, he bewailed that there was massive fraud, vote-buying,
intimidation, employment of illegal and fraudulent devices and schemes before,
during and after the elections benefitting Abayon and that terrorism was committed by
the latter and his unidentified cohorts, agents and supporters.
The HRET decided the election protest in Daza' s favor and declared him as the
winning candidate. In its 2016 Decision, the HRET annulled the election results in five (5)
clustered precincts in the municipalities of Lavezares and Victoria because of the
commission of massive terrorism. As a result of nullifying the election results in the said
clustered precincts, the HRET deducted the votes received by the parties in the concerned
clustered precincts and concluded that Daza obtained 72,436 votes and Abayon had 72,002
votes.
The HRET found that Daza had adduced convincing evidence to establish that fear
was instilled in the minds of hundreds of resident-voters in the protested clustered
precincts from the time they had attended the "pulong-pulongs" up until the election day
itself when armed partisans were deployed to the schools to ensure that the voters would
not vote for him but for Abayon. The HRET ratiocinated that there was clear and
convincing evidence to warrant the annulment of the elections in the concerned precincts
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because the terrorism affected more than 50% of the votes cast in the said precincts and it
was impossible to distinguish the good votes from the bad.
Abayon moved for reconsideration, but his motion was denied by the HRET. Hence,
these petitions.
ISSUES:
1. Whether the HRET had jurisdiction to annul the elections in the contested precincts in
the municipalities of Lavezares and Victoria. YES.
2. Whether the HRET committed grave abuse of discretion in annulling the elections on
the ground of terrorism. YES.
3. Whether the HRET committed grave abuse of discretion in dismissing the counterprotest filed by Abayon. This issue is now moot since the Court upheld Abayon's
election as Samar's Representative.
RULING:
The power of the HRET to annul elections differ from the power granted to the
COMELEC to declare failure of elections. The Constitution no less, grants the HRET with
exclusive jurisdiction to decide all election contests involving the members of the HOR,
which necessarily includes those which raise the issue of fraud, terrorism or other
irregularities committed before, during or after the elections. To deprive the HRET the
prerogative to annul elections would undermine its constitutional fiat to decide
election contests. The phrase "election, returns and qualifications" should be interpreted
in its totality as referring to all matters affecting the validity of the contestee' s title.
The HRET had jurisdiction to determine whether there was terrorism in the
contested precincts. In the event that the HRET would conclude that terrorism indeed
existed in the said precincts, then it could annul the election results in the said precincts
to the extent of deducting the votes received by Daza and Abayon in order to remain
faithful to its constitutional mandate to determine who among the candidates received the
majority of the valid votes cast.
The COMELEC exercises its quasi-judicial function when it decides election contests
not otherwise reserved to other electoral tribunals by the Constitution. The COMELEC,
however, does not exercise its quasi-judicial functions when it declares a failure of elections
pursuant to RA 7166. Rather, the COMELEC performs its administrative function when it
exercises such power.
Consequently, the difference between the annulment of elections by
electoral tribunals and the declaration of failure of elections by the COMELEC
cannot be gainsaid. First, the former is an incident of the judicial function of electoral
tribunals while the latter is in the exercise of the COMELEC's administrative function.
Second, electoral tribunals only annul the election results connected with the election
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contest before it whereas the declaration of failure of elections by the COMELEC relates to
the entire election in the concerned precinct or political unit. As such, in annulling
elections, the HRET does so only to determine who among the candidates garnered a
majority of the legal votes cast. The COMELEC, on the other hand, declares a failure of
elections with the objective of holding or continuing the elections, which were not held or
were suspended, or if there was one, resulted in a failure to elect. When COMELEC declares
a failure of elections, special elections will have to be conducted. Hence, there is no
overlap of jurisdiction because when the COMELEC declares a failure of elections
on the ground of violence, intimidation, terrorism or other irregularities, it does so
in its administrative capacity. In contrast, when electoral tribunals annul elections
under the same grounds, they do so in the performance of their quasi-judicial
functions.
Annulment of elections is only warranted in exceptional circumstances.
A protestant alleging terrorism in an election protest must establish by clear and
convincing evidence that the will of the majority has been muted by violence, intimidation
or threats. It is on record that Daza presented several residents of the concerned precincts
to illustrate how NDF-EV members terrorized the residents of the said precincts before and
during the elections to ensure Daza's defeat to Abayon.
The collective testimonies of Daza's witnesses, however, fail to impress. First, their
testimonies made no reference to Abayon's alleged participation in the purported
terroristic acts committed by the NDF-EV. Second, Daza's witnesses alone are insufficient
to prove that indeed terrorism occurred in the contested precincts and the same affected
at least 50% of the votes cast therein. The testimonies of three (3) voters can hardly
represent the majority that indeed their right to vote was stifled by violence. With the
allegation of widespread terrorism, it would have been more prudent for Daza to present
more voters who were coerced to vote for Abayon as a result of the NDFEV's purported
violence and intimidation.
Indubitably, the numbers mattered considering that both the COMELEC and the
PNP issued certifications stating that no failure of elections occurred in Northern Samar and
that the elections was generally peaceful and orderly. The unsubstantiated testimonies of
Daza's witnesses falter when faced with official pronouncements of government agencies,
which are presumed to be issued in the regular performance of their duties.
The testimonies of a minute portion of the registered voters in the said precincts
should not be used as a tool to silence the voice of the majority expressed through their
votes during elections. To do so would disenfranchise the will of the majority and reward a
candidate not chosen by the people to be their representative.
Based on the foregoing, the decision of the HRET was clearly unsupported by clear
and convincing evidence. Thus, the HRET committed grave abuse of discretion in annulling
the elections in the contested precincts and disregarding the respective number of votes
received by Abayon and Daza from the precincts, which led to its conclusion that Daza was
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the one elected by the majority of voters in the First Legislative District of Northern Samar
to be their Representative in Congress. Hence, Abayon should be reinstated as the duly
elected Representative of the said legislative district.
WIGBERTO R. TAÑADA, JR. vs. COMMISSION ON ELECTIONS ANGELINA D. TAN,
AND ALVIN JOHN S. TAÑADA
G.R. Nos. 207199-200, October 22, 2013
J. Perlas-Bernabe
The proclamation of a congressional candidate following the election divests the
COMELEC of jurisdiction over disputes relating to the election, returns, and qualifications
of the proclaimed representative in favor of the HRET.
Facts:
Petitioner Wigberto Tañada, Jr. and respondents Angelina D. Tan and Alvin John S. Tañada
were contenders for the position of Member of the House of Representatives for the 4th
District of Quezon Province in the just concluded May 13, 2013 National Elections.
On October 10, 2012, Wigberto filed before the COMELEC two separate petitions: first, to
cancel Alvin John’s CoC; and, second, to declare him as a nuisance candidate.
In a Resolution the COMELEC First Division dismissed both petitions for lack of merit. On
Wigberto’s motion for reconsideration, the COMELEC En Banc upheld the COMELEC First
Division’s ruling that Alvin John was not a nuisance candidate as defined under Section
69 of the Omnibus Election Code (OEC) of the Philippines. However, it granted the motion
for reconsideration to cancel Alvin John’s CoC for having committed false material
representations concerning his residency in accordance with Section 78 of the OEC.
On May 15, 2013, Wigberto filed a 2nd Motion for Partial Reconsideration of the COMELEC
En Banc’s decision declaring Alvin John as not a nuisance candidate on the ground of newly
discovered evidence.
In a related development, despite the cancellation of Alvin John’s CoC due to his material
misrepresentations therein, his name was not deleted from – and thus, remained printed
on – the ballot, prompting Wigberto to file a motion with the Provincial Board of
Canvassers of Quezon Province (PBOC) asking that the votes cast in the name of Alvin John
be credited to him instead in accordance with the Court’s ruling in Dela Cruz v. COMELEC
and COMELEC Resolution No. 9599. The PBOC, however, denied Wigberto’s motion in a
Resolution holding that the votes of Alvin John could not be counted in favor of Wigberto
because the cancellation of the former’s CoC was on the basis of his material
misrepresentations under Section 78 of the OEC and not on being a nuisance candidate
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under Section 69 of the same law. Consequently, the PBOC canvassed the votes of all three
contenders separately, and thereafter, on May 16, 2013, proclaimed Angelina as the winning
candidate for the position of Member of the House of Representatives for the 4th District
of Quezon Province.
It appears, however, that Wigberto had already filed with the COMELEC a Petition to
Annul the Proclamation of Angelina, asserting that had the PBOC followed pertinent
rulings, the votes cast for Alvin John would have been counted in his favor which could
have resulted in his victory. While the Petition to Annul was still pending resolution,
Wigberto initiated the instant certiorari case against the COMELEC En Banc Resolution
declaring Alvin John not a nuisance candidate.1âwphi1
Issue:
Wigberto assails the COMELEC En Banc Resolution declaring that Alvin John was not a
nuisance candidate as defined under Section 69 of the OEC. In consequence, he seeks that
the votes cast in favor of Alvin John be credited to him and, thereafter, to be declared the
winning candidate for the congressional post.
Ruling:
The petition is dismissed.
Section 17, Article VI of the 1987 Philippine Constitution provides that the HRET is the sole
judge of all contests relating to the election, returns, and qualifications of its respective
members.
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 the House of
Representatives, as the case may be, who shall be chosen on the basis of
proportional representation from the political parties and the parties or
organizations registered under the party-list system represented therein. The
senior Justice in the Electoral Tribunal shall be its Chairman.
Case law states that the proclamation of a congressional candidate following the election
divests the COMELEC of jurisdiction over disputes relating to the election, returns, and
qualifications of the proclaimed representative in favor of the HRET. The phrase "election,
returns and qualifications" refers to all matters affecting the validity of the contestee’s
title. In particular, the term "election" refers to the conduct of the polls, including the
listing of voters, the holding of the electoral campaign, and the casting and counting of the
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votes; "returns" refers to the canvass of the returns and the proclamation of the winners,
including questions concerning the composition of the board of canvassers and the
authenticity of the election returns; and "qualifications" refers to matters that could be
raised in a quo warranto proceeding against the proclaimed winner, such as his disloyalty
or ineligibility or the inadequacy of his CoC.
In the foregoing light, considering that Angelina had already been proclaimed as Member
of the House of Representatives for the 4th District of Quezon Province, as she has in fact
taken her oath and assumed office, the Court is now without jurisdiction to resolve the case
at bar.
LIWAYWAY VINZONS-CHATO vs. HOUSE OF REPRESENTATIVES ELECTORAL
TRIBUNAL and ELMER E. PANOTES
G.R. No. 204637, April 16, 2013
J. Reyes
The HRET is not estopped from declaring that the integrity of the ballot boxes was
not preserved opposed to its initial statement after an exhaustive examination was
conducted. When the petitioner fails to prove that the integrity of the ballot boxes was
preserved, the Court cannot disturb the judgment of HRET.
Facts:
In the 2010 elections, Chato and Panotes both ran for the Congress to represent the Second
District of Camarines Norte. On May 12, 2010, Panotes was proclaimed as the winner. Chato
then filed an electoral protest with the House of Representatives Electoral Tribunal (HRET)
stating that the Precinct Count Optical Scan (PCOS) machines rejected and failed to count
the votes, that the machines broke down in some clustered precincts, that the compact
flash (CF) cards were not preserved and that there were errors in the transmission of
results.
Upon the revision of the ballots by the HRET, it was found that out of 160 contested
clustered precincts, there were 91 without substantial variances between the results of the
automatic and the manual count. However, in 69 CPs in Basud and Daet, the variances
were glaring. The HRET dismissed Chato’s electoral protest stating that the CF cards were
preserved and declared that Panotes garnered the highest number of votes after the
appreciation of ballots in 91 clustered precincts.
Issue:
Whether or not the HRET committed grave abuse of discretion when it disregarded the
results of the physical count in the 69 CPs when the HRET had previously held that the
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integrity of the ballot boxes was preserved and that the results of the revision proceedings
can be the bases to overturn those reflected in the election returns
Ruling:
The petition is denied.
Chato posits that since the HRET, in its Order dated April 10, 2012, had already considered
the conditions of the ballot boxes as indicative of having substantially complied with
"statutory safety measures to prevent reasonable opportunity for tampering with their
contents", its subsequent disregard of the results of the physical count in the 69 CPs in Daet
and Basud was tainted with grave abuse of discretion. We do not agree.
The HRET’s findings then anent the integrity of the ballot boxes were at the most,
preliminary in nature. The HRET was in no way estopped from subsequently holding
otherwise after it had the opportunity to exhaustively observe and examine in the course
of the entire revision proceedings the conditions of all the ballot boxes and their contents,
including the ballots themselves, the MOV, SOVs and ERs.
The HRET found Chato’s evidence insufficient. The testimonies of the witnesses she
presented were declared irrelevant and immaterial as they did not refer to the CF cards
used in the 20 precincts in the Municipalities of Basud and Daet with substantial variances
To substitute our own judgment to the findings of the HRET will doubtless constitute an
intrusion into its domain and a curtailment of its power to act of its own accord on its
evaluation of the evidentiary weight of testimonies presented before it. Thus, for failure of
Chato to discharge her burden of proving that the integrity of the questioned cards had not
been preserved, no further protestations to the use of the picture images of the ballots as
stored in the CF cards should be entertained.
Chato attempts to convince us that the integrity of the physical ballots was preserved, while
that of the CF cards was not. As mentioned above, the integrity of the CF cards is already a
settled matter. Anent that of the physical ballots, this is a factual issue which calls for a recalibration of evidence. Generally, we do not resolve factual questions unless the decision,
resolution or order brought to us for review can be shown to have been rendered or issued
with grave abuse of discretion.
In Dueñas, Jr. v. HRET, we defined grave abuse of discretion, viz:
It is such capricious and whimsical exercise of judgment which is
tantamount to lack of jurisdiction. Ordinary abuse of discretion is
insufficient. The abuse of discretion must be grave, that is, the power is
exercised in an arbitrary or despotic manner by reason of passion or
personal hostility. It must be so patent and gross as to amount to
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evasion of positive duty or to a virtual refusal to perform the duty
enjoined by or to act at all in contemplation of the law. In other words,
for a petition for certiorari to prosper, there must be a clear showing of
caprice and arbitrariness in the exercise of discretion. There is also grave
abuse of discretion when there is a contravention of the Constitution,
the law or existing jurisprudence. (Citation omitted)
In the case at bar, the HRET disposed of Chato’s electoral protest without grave abuse of
discretion. The herein assailed decision and resolution were rendered on the bases of
existing evidence and records presented before the HRET.
EXECUTIVE DEPARTMENT
KILUSANG MAYO UNO vs. HON. BENIGNO SIMEON AQUINO
G.R. No. 210761 | June 28, 2016 | J. Brion
FACTS:
On September 2013, Phil Health issued the 3 assailed circulars2 which increased
premiums for Individually Paying Program (IPP), Overseas Worker Program (OWP) and
Employed Sector.
Petitioners Kilusang Mayo Uno (KMU) et al filed petition for certiorari with TRO
and/or Preliminary Injunction against the implementation of the new rates; impleading
President Aquino and Phil health. KMU argued that (1) that Phil Health breached the limits
to its delegated rule-making power because the new contributions chedule is neither
reasonable, equitable, nor progressive as prescribed by the NHIA; (2) that the rate increase
is unduly oppressive and not. Reasonably necessary to attain the purpose sought; and (3)
that the new rates were determined without an actuarial study as required by the NHIA.
Moreover, they argued that Phil Health gave out 1.5 Billion, hefty bonuses to top officials
and employees, contractors etc. While Petitioner-in-intervention Migrante et al adopted
said arguments and further argued that this violates Migrant Workers and Overseas
Filipinos Act which prescribed the non-increase of fees charged by any government office
on Overseas Filipino Workers (OFWs).
21.
Phil Health Circular No. 0024, s. 201317 was issued on September30, 2013, increasing the minimum annual premium
rate for the Individually Paying Program IPP to Php2,400.00 for members with a monthly income ofPhp25,000.00 and
below.
2. Phil Health Circular No. 0025, s. 201J 18 was issued on September 30, 2013, adjusting the annual premium rate for the
Overseas Worker Program (OWP) to Php2,400.00 for all land-based OFWs, whether documented or undocumented.
3. Phil Health Circular No. 0027, s. 2013 19 was also issued on September 30, 2013, for the Employed Sector. It retained
2.5% atthe premium rate and the Php35,000.00 salary bracket ceiling. However, it consolidated the two lowest salary
brackets resulting in a minimum annual rate of Php2,400.00.
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President through OSG invoked his immunity from suit. Phil health argued that
increase was supported by 3 actuarial studies and it was increased to avoid situation that
poorest of the poor would contribute higher than employed, OWP and IPP. Moreover, Phil
Health argued that it introduced increased benefit packages, that the bonuses has no
relation to the premiums (COA disallowance under appeal and sub-judice) and lastly, they
argued that the petition it was filed out of time; (2) that it failed to state the material dates
as required by Rule 46, Section 3 of the Rules of Court; (3) that the petitioners have no
legal standing;( 4) that the petitioners disregarded the hierarchy of courts because the issue
was not of transcendental importance; and (5) that the petition has neither basis nor merit.
ISSUES:
1. Whether or not President enjoys immunity from suit. YES.
2. Whether or not there is grave abuse of discretion. NO.
3. Whether or not Court can encroach on COA’s audit jurisdiction. NO.
RULING:
We stress the settled principle that a sitting head of state enjoys immunity from suit
during his actual tenure. Moreover, the petition contains no allegations as to any specific
presidential act or omission that amounted to grave abuse of discretion.
Petition for Certiorari is premature. An administrative agency's exercise of quasilegislative powers maybe questioned and prohibited through an ordinary action for
injunction before the Regional Trial Court Under the NHIA, all citizens of the Philippines
are required to enrolling the Program; membership is mandatory.
Grave abuse of discretion is present when there is such capricious and whimsical
exercise of judgment as is equivalent to .lack of jurisdiction, or where power is exercised
arbitrarily or in a despotic manner by reason of passion, prejudice, or personal hostility
amounting to an evasion of positive duty, or to a virtual refusal to perform a legal duty or
act at all in contemplation of law.
Reasonable ·decision to widen the coverage of the program - which led to increased
premium rates - is a business judgment that this Court cannot interfere with.
This Court does not have administrative supervision over administrative agencies,
nor is it an entity engaged in making business decisions. We cannot interfere in purely
administrative matters nor substitute administrative policies and business decisions with
our own. The courts' only concern is the legality, not the wisdom, of an agency's actions.
Contrary to petitioner’s argument, the new schedule conform to NHIA’s standard of
reasonable, equitable and progressive schedule
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Section 36 of the Migrant Worker sand Overseas Filipinos Act does not apply
to premium contributions under the National Health Insurance Program
There is no valid distinction between migrant workers and the rest of the population
that would justify a lower premium rate for the former.
Therefore, the application of Section 36 of the Migrant Workers and Overseas
Filipinos Act to obstruct the increase of premiums under the NHIP amounts to an
unreasonable classification, in violation of the equal protection clause.
Further, even if the allegations were true, this Court does not have the power to
audit the expenditures of the Government or any of its agencies and instrumentalities. The
Constitution saw fit to vest this power on an independent Constitutional body: the
Commission on Audit (COA). The COA alone has the power to disallow unnecessary and
extravagant government spending.
The Separation of Powers doctrine, so fundamental in our system of government,
precludes this Court from encroaching on the powers and functions of an independent
constitutional body. Our participation in the audit process is limited to determining
whether the COA committed grave abuse of discretion in rendering its audit decisions. We
will not overstep the bounds of our jurisdiction.
Moreover, the alleged improprieties pertain to Phil Health’s manner of spending its
funds, not to the assailed act of raising the premium rates. While the alleged improprieties
may constitute grave abuse of discretion, it does not follow that Phil Health gravely abused
its discretion in issuing the assailed circulars. The argument is a non sequitur.
POWERS
MAJOR GENERAL CARLOS F. GARCIA, AFP (RET.) VS. THE EXECUTIVE
SECRETARY, REPRESENTING THE OFFICE OF THE PRESIDENT; THE SECRETARY
OF NATIONAL DEFENSE VOLTAIRE T. GAZMIN; THE CHIEF OF STAFF, ARMED
FORCES OF THE PHILIPPINES, GEN. EDUARDO SL. OBAN, JR., AND LT. GEN.
GAUDENCIO S. PANGILINAN, AFP (RET.) DIRECTOR, BUREAU OF CORRECTIONS
G.R. No. 198554 | July 30, 2012 | J. Peralta
Commander-in-Chief Powers; General Court Martial
The power to confirm a sentence of the President, as Commander-in-Chief, includes the power
to approve or disapprove the entire or any part of the sentence given by the court martial. In
addition, the President also has the power to mitigate or remit a sentence. This is a clear
recognition of the superiority of civilian authority over the military.
FACTS:
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In 2004, the Provost Martial General of the Armed Forces of the Philippines (AFP), Col.
Galarpe, by command of Vice-Admiral De Los Reyes, issued a Restriction to Quarters
containing the following: (1) Pursuant to Article of War 70 and the directive of the Acting
Chief of Staff, you are hereby placed under Restriction to Quarters under guard pending
investigation of your case; (2) You are further advised that you are not allowed to leave your
quarters without the expressed permission from the Acting Chief of Staff, AFP; (3) In case
you need immediate medical attention or required by the circumstance to be confined in a
hospital, you shall likewise be under guard.
Thereafter, a Charge Sheet dated October 27, 2004 was filed with the Special General Court
Martial NR 2 presided by Maj. Gen. Teodosio, charging petitioner violation of the 96th and
97th Articles of War. Petitioner, upon arraignment, pleaded not guilty on all charges. Also,
the petitioner, having reached the age of 56, compulsorily retired from military service.
After 6 years and 2 months of preventive confinement, petitioner was released from the
Camp Crame Detention Center. The Office of the President, or the President as
Commander-in-Chief of the AFP and acting as the Confirming Authority under the Articles
of War, confirmed the sentence imposed by the Court Martial against petitioner:
(1) to be dishonorably discharged from the service; (2) to forfeit all pay and allowances due
and to become due; and (3) to be confined for a period of 2 years in a penitentiary.
In 2011, petitioner was arrested and detained, and continues to be detained at the National
Penitentiary, Maximum Security, Bureau of Corrections, Muntinlupa City. Aggrieved,
petitioner filed with this Court the present petition for certiorari, and petition for habeas
corpus, alternatively. The latter petition and MR to the same were denied by this Court.
ISSUES:
Whether the General Court Martial has jurisdiction to try petitioner’s case. YES.
Whether the Office of the President acted with grave abuse of discretion, amounting to
lack or excess of jurisdiction, in issuing the Confirmation of Sentence. NO.
RULING:
It is indisputable that petitioner was an officer in the active service of the AFP in March
2003 and 2004, when the alleged violations were committed. The charges were filed on
October 27, 2004 and he was arraigned on November 16, 2004. Clearly, from the time the
violations were committed until the time petitioner was arraigned, the General Court
Martial had jurisdiction over the case. Well-settled is the rule that jurisdiction once
acquired is not lost upon the instance of the parties but continues until the case is
terminated. Therefore, petitioner's retirement in 2004 did not divest the General Court
Martial of its jurisdiction.
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Having established the jurisdiction of the General Court Martial over the case and the
person of the petitioner, the President, as Commander-in-Chief, therefore acquired the
jurisdiction to confirm petitioner's sentence.
The power to confirm a sentence of the President, as Commander-in-Chief, includes the
power to approve or disapprove the entire or any part of the sentence given by the court
martial. In addition, the President also has the power to mitigate or remit a sentence. This
is a clear recognition of the superiority of civilian authority over the military. However,
although the Articles of War which conferred those powers to the President is silent as to
the deduction of the period of preventive confinement to the penalty imposed, such is also
the right of an accused provided for by Article 29 of the RPC.
In Marcos v. Chief of Staff, Armed Forces of the Philippines, this Court ruled that a courtmartial case is a criminal case and the General Court Martial is a “court” akin to any other
courts. On that premise, certain provisions of the Revised Penal Code, insofar as those that
are not provided in the Articles of War and the Manual for Courts-Martial, can be
supplementary.
No less than our Constitution guarantees the right not just to a speedy trial
but to the speedy disposition of cases. In determining whether or not the right to
the speedy disposition of cases has been violated, the Court has laid down the following
guidelines: (1) the length of the delay; (2) the reasons for such delay; (3) the assertion or
failure to assert such right by the accused; and (4) the prejudice caused by the delay. In
this case, there was no allegation, whatsoever of any delay during the trial. What is being
questioned by petitioner is the delay in the confirmation of sentence by the President. The
records do not show that, in those 6 years from the time the decision of the General Court
Martial was promulgated until the sentence was finally confirmed by the President,
petitioner took any positive action to assert his right to a speedy disposition of his case.
This is akin to what happened in Guerrero v. Court of Appeals, where, in spite of the lapse
of more than 10 years of delay, the Court still held that the petitioner could not rightfully
complain the delay violating his right to speedy trial or disposition of his case, since he was
part of the reason for the failure of his case to move on towards its ultimate resolution.
IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND THE WRIT
OF HABEAS DATA IN FAVOR OF FRANCIS SAEZ, FRANCIS SAEZ VS. GLORIA
MACAPAGAL ARROYO, ET AL.
G.R. No. 183533 | September 25, 2012 | J. Reyes
The President cannot automatically dropped respondent pursuant to the doctrine of
command responsibility.
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FACTS
In 2008, the petitioner filed with the Court a petition to be granted the privilege of the writs
of amparo and habeas data with prayers for temporary protection order, inspection of place
and production of documents. In the petition, he expressed his fear of being abducted and
killed; hence, he sought that he be placed in a sanctuary appointed by the Court. He
likewise prayed for the military to cease from further conducting surveillance and
monitoring of his activities and for his name to be excluded from the order of battle and
other government records connecting him to the Communist Party of the Philippines
(CPP).
Without necessarily giving due course to the petition, the Court issued the writ of amparo
commanding the respondents to make a verified return, and referred the case to the CA for
hearing and decision. The CA rendered its Decision, denying on formal and substantial
grounds the reliefs prayed for in the petition and dropping former Pres. GMA as a
respondent.
The SC issued a Resolution denying the Petition for Review. Hence, this MR.
ISSUE Whether the writs sought must be granted. NO.
RULING
While the issuance of the writs sought by the petitioner cannot be granted, the Court
nevertheless finds ample grounds to modify its Resolution.
The Court still finds that CA did not commit a reversible error in declaring that no
substantial evidence exist to compel the grant of the reliefs prayed for. The Court took a
second look on the evidence on record and finds no reason to reconsider the denial of the
issuance of the writs prayed for.
Given that the totality of the evidence presented by the petitioner failed to support his
claims, the reliefs prayed for, therefore, cannot be granted. The liberality accorded to
amparo and habeas data cases does not mean that a claimant is dispensed with the onus of
proving his case. “Indeed, even the liberal standard of substantial evidence demands some
adequate evidence.”
Pursuant to the doctrine of command responsibility, the President, as the Commander-inChief of the AFP, can be held liable for affront against the petitioner’s rights to life, liberty
and security as long as substantial evidence exist to show that he or she had exhibited
involvement in or can be imputed with knowledge of the violations, or had failed to exercise
necessary and reasonable diligence in conducting the necessary investigations required
under the rules.
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The Court also stresses that rule that the presidential immunity from suit exists only in
concurrence with the president’s incumbency. Conversely, this presidential privilege of
immunity cannot be invoked by a non-sitting president even for acts committed during his
or her tenure. Courts look with disfavor upon the presidential privilege of immunity,
especially when it impedes the search for truth or impairs the vindication of a right.
JAMAR M. KULAYAN, et al. vs. GOV. ABDUSAKUR M. TAN, et al.
G.R. No. 187298 | July 3, 2012 | J. Sereno
FACTS
In 2009, three members from the International Committee of the Red Cross were
kidnapped in Patikul, Sulu by the Abu Sayyaf Group (ASG). Respondent Governor Tan
organized the Civilian Emergency Force (CEF), a group of armed male civilians redeployed
to areas of Patikul.
Threatening that one of the hostages will be beheaded, the ASG demanded evacuation of
military camps in Jolo. Thus, Tan issued Proclamation 1-09 declaring a state of emergency
in Sulu and calling upon the PNP with the assistance of AFP and CEF to set up checkpoints
and chokepoints and conduct general search and seizures.
ISSUE Whether Proclamation 1-09 is valid. NO.
RULING
When the Constitution, speaks of executive power, it is granted to the President and no
one else. Corollarily, it is only the President who is authorized to exercise emergency
powers (Article 6, Section 23) and calling-out powers (Article 7, Section 7). The power to
declare a state of martial law is subject to the SC’s authority to review the factual basis
thereof. The calling-out powers, which is of lesser gravity than the power to declare martial
law, is bestowed upon the President alone.
The framers never intended for local chief executives to exercise unbridled control over the
police in emergency situations. This is without prejudice to their authority over police units
in their jurisdiction, and their prerogative to seek assistance from the police in day to day
situations. However, the police is subject to the exercise by the President of the power of
executive control.
It is the clear intent of the framers that in all situations involving threats to security, it is
still the President who possesses the sole authority to exercise calling-out powers.
The LGC does not involve the diminution of central powers inherently vested in the
National Government, especially not the prerogatives solely granted to the President. The
intent behind the powers granted to LGUs is fiscal, economic, and administrative. The LGC
is concerned only with powers that would make the delivery of basic services more effective
and should not be unduly stretched to confer calling-out powers.
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PHILIP SIGFRID A. FORTUN AND ALBERT LEE G. ANGELES, PETITIONERS, VS.
GLORIA MACAPAGAL-ARROYO, AS COMMANDER-IN-CHIEF AND PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES, EDUARDO ERMITA, EXECUTIVE
SECRETARY, ARMED FORCES OF THE PHILIPPINES (AFP), OR ANY OF THEIR
UNITS, PHILIPPINE NATIONAL POLICE (PNP), OR ANY OF THEIR UNITS, JOHN
DOES AND JANE DOES ACTING UNDER THEIR DIRECTION AND CONTROL,
RESPONDENTS.
[G.R. No. 190293. 190294. 190301. 190302. 190307. 190356. 190380 : March 20, 2012]
Facts:
The essential background facts are not in dispute. On November 23, 2009 heavily armed
men, believed led by the ruling Ampatuan family, gunned down and buried under shoveled
dirt 57 innocent civilians on a highway in Maguindanao. In response to this carnage, on
November 24 President Arroyo issued Presidential Proclamation 1946, declaring a state of
emergency in Maguindanao, Sultan Kudarat, and Cotabato City to prevent and suppress
similar lawless violence in Central Mindanao.
Believing that she needed greater authority to put order in Maguindanao and secure it from
large groups of persons that have taken up arms against the constituted authorities in the
province, on December 4, 2009 President Arroyo issued Presidential Proclamation 1959
declaring martial law and suspending the privilege of the writ of habeas corpus in that
province except for identified areas of the Moro Islamic Liberation Front.
Two days later or on December 6, 2009 President Arroyo submitted her report to Congress
in accordance with Section 18, Article VII of the 1987 Constitution which required her,
within 48 hours from the proclamation of martial law or the suspension of the privilege of
the writ of habeas corpus, to submit to that body a report in person or in writing of her
action.
In her report, President Arroyo said that she acted based on her finding that lawless men
have taken up arms in Maguindanao and risen against the government. The President
described the scope of the uprising, the nature, quantity, and quality of the rebels’
weaponry, the movement of their heavily armed units in strategic positions, the closure of
the Maguindanao Provincial Capitol, Ampatuan Municipal Hall, Datu Unsay Municipal
Hall, and 14 other municipal halls, and the use of armored vehicles, tanks, and patrol cars
with unauthorized “PNP/Police” markings.
On December 9, 2009 Congress, in joint session, convened pursuant to Section 18, Article
VII of the 1987 Constitution to review the validity of the President’s action. But, two days
later or on December 12 before Congress could act, the President issued Presidential
Proclamation 1963, lifting martial law and restoring the privilege of the writ of habeas
corpus in Maguindanao.
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Issue:
Whether Proclamation 1959 is constitutional.
Ruling:
One. President Arroyo withdrew her proclamation of martial law and suspension of the
privilege of the writ of habeas corpus before the joint houses of Congress could fulfill their
automatic duty to review and validate or invalidate the same. The pertinent provisions of
Section 18, Article VII of the 1987 Constitution state:
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 privilege of 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 any need of a
call.
xxxx
Although the above vests in the President the power to proclaim martial law or suspend
the privilege of the writ of habeas corpus, he shares such power with the Congress. Thus:
1. The President’s proclamation or suspension is temporary, good for only 60 days;
2. He must, within 48 hours of the proclamation or suspension, report his action in person
or in writing to Congress;
3. Both houses of Congress, if not in session must jointly convene within 24 hours of the
proclamation or suspension for the purpose of reviewing its validity; and
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4. The Congress, voting jointly, may revoke or affirm the President’s proclamation or
suspension, allow their limited effectivity to lapse, or extend the same if Congress deems
warranted.
It is evident that under the 1987 Constitution the President and the Congress act in tandem
in exercising the power to proclaim martial law or suspend the privilege of the writ of
habeas corpus. They exercise the power, not only sequentially, but in a sense jointly since,
after the President has initiated the proclamation or the suspension, only the Congress can
maintain the same based on its own evaluation of the situation on the ground, a power that
the President does not have.
Consequently, although the Constitution reserves to the Supreme Court the power to
review the sufficiency of the factual basis of the proclamation or suspension in a proper
suit, it is implicit that the Court must allow Congress to exercise its own review powers,
which is automatic rather than initiated. Only when Congress defaults in its express duty
to defend the Constitution through such review should the Supreme Court step in as its
final rampart. The constitutional validity of the President’s proclamation of martial law or
suspension of the writ of habeas corpus is first a political question in the hands of Congress
before it becomes a justiciable one in the hands of the Court.
Here, President Arroyo withdrew Proclamation 1959 before the joint houses of Congress,
which had in fact convened, could act on the same. Consequently, the petitions in these
cases have become moot and the Court has nothing to review. The lifting of martial law
and restoration of the privilege of the writ of habeas corpus in Maguindanao was a
supervening event that obliterated any justiciable controversy.[2]
Two. Since President Arroyo withdrew her proclamation of martial law and suspension of
the privilege of the writ of habeas corpus in just eight days, they have not been meaningfully
implemented. The military did not take over the operation and control of local government
units in Maguindanao. The President did not issue any law or decree affecting
Maguindanao that should ordinarily be enacted by Congress. No indiscriminate mass
arrest had been reported. Those who were arrested during the period were either released
or promptly charged in court. Indeed, no petition for habeas corpus had been filed with
the Court respecting arrests made in those eight days. The point is that the President
intended by her action to address an uprising in a relatively small and sparsely populated
province. In her judgment, the rebellion was localized and swiftly disintegrated in the face
of a determined and amply armed government presence.
In Lansang v. Garcia,[3] the Court received evidence in executive session to determine if
President Marcos’ suspension of the privilege of the writ of habeas corpus in 1971 had
sufficient factual basis. In Aquino, Jr. v. Enrile,[4] while the Court took judicial notice of
the factual bases for President Marcos’ proclamation of martial law in 1972, it still held
hearings on the petitions for habeas corpus to determine the constitutionality of the arrest
and detention of the petitioners. Here, however, the Court has not bothered to examine
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the evidence upon which President Arroyo acted in issuing Proclamation 1959, precisely
because it felt no need to, the proclamation having been withdrawn within a few days of its
issuance.
Justice Antonio T. Carpio points out in his dissenting opinion the finding of the Regional
Trial Court (RTC) of Quezon City that no probable cause exist that the accused before it
committed rebellion in Maguindanao since the prosecution failed to establish the elements
of the crime. But the Court cannot use such finding as basis for striking down the
President’s proclamation and suspension. For, firstly, the Court did not delegate and could
not delegate to the RTC of Quezon City its power to determine the factual basis for the
presidential proclamation and suspension. Secondly, there is no showing that the RTC of
Quezon City passed upon the same evidence that the President, as Commander-in-Chief
of the Armed Forces, had in her possession when she issued the proclamation and
suspension.
The Court does not resolve purely academic questions to satisfy scholarly interest, however
intellectually challenging these are.[5] This is especially true, said the Court in Philippine
Association of Colleges and Universities v. Secretary of Education,[6] where the issues
“reach constitutional dimensions, for then there comes into play regard for the court’s duty
to avoid decision of constitutional issues unless avoidance becomes evasion.” The Court’s
duty is to steer clear of declaring unconstitutional the acts of the Executive or the
Legislative department, given the assumption that it carefully studied those acts and found
them consistent with the fundamental law before taking them. “To doubt is to sustain.”[7]
Notably, under Section 18, Article VII of the 1987 Constitution, the Court has only 30 days
from the filing of an appropriate proceeding to review the sufficiency of the factual basis of
the proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus. Thus –
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 of habeas corpus or the extension thereof, and must promulgate its
decision thereon within thirty days from its filing. (Emphasis supplied)
More than two years have passed since petitioners filed the present actions to annul
Proclamation 1959. When the Court did not decide it then, it actually opted for a default
as was its duty, the question having become moot and academic.
Justice Carpio of course points out that should the Court regard the powers of the President
and Congress respecting the proclamation of martial law or the suspension of the privilege
of the writ of habeas corpus as sequential or joint, it would be impossible for the Court to
exercise its power of review within the 30 days given it.
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But those 30 days, fixed by the Constitution, should be enough for the Court to fulfill its
duty without pre-empting congressional action. Section 18, Article VII, requires the
President to report his actions to Congress, in person or in writing, within 48 hours of such
proclamation or suspension. In turn, the Congress is required to convene without need of
a call within 24 hours following the President’s proclamation or suspension. Clearly, the
Constitution calls for quick action on the part of the Congress. Whatever form that action
takes, therefore, should give the Court sufficient time to fulfill its own mandate to review
the factual basis of the proclamation or suspension within 30 days of its issuance.
If the Congress procrastinates or altogether fails to fulfill its duty respecting the
proclamation or suspension within the short time expected of it, then the Court can step
in, hear the petitions challenging the President’s action, and ascertain if it has a factual
basis. If the Court finds none, then it can annul the proclamation or the suspension. But
what if the 30 days given it by the Constitution proves inadequate? Justice Carpio himself
offers the answer in his dissent: that 30-day period does not operate to divest this Court of
its jurisdiction over the case. The settled rule is that jurisdiction once acquired is not lost
until the case has been terminated.
The problem in this case is that the President aborted the proclamation of martial law and
the suspension of the privilege of the writ of habeas corpus in Maguindanao in just eight
days. In a real sense, the proclamation and the suspension never took off. The Congress
itself adjourned without touching the matter, it having become moot and academic.
Of course, the Court has in exceptional cases passed upon issues that ordinarily would have
been regarded as moot. But the present cases do not present sufficient basis for the exercise
of the power of judicial review. The proclamation of martial law and the suspension of the
privilege of the writ of habeas corpus in this case, unlike similar Presidential acts in the late
60s and early 70s, appear more like saber-rattling than an actual deployment and arbitrary
use of political power.
SECRETARY LEILA DE LIMA, ASSISTANT STATE PROSECUTOR STEWART ALLAN
A. MARIANO, ASSISTANT STATE PROSECUTOR VIMAR M. BARCELLANO and
ASSISTANT STATE PROSECUTOR GERARD E. GAERLAN, Petitioners, vs. MARIO
JOEL T. REYES, Respondent.
January 11, 2016, G.R. No. 209330
Facts:
Dr. Gerardo Ortega (Dr. Ortega), also known as "Doc Gerry," was a veterinarian and anchor
of several radio shows in Palawan. On January 24, 2011, at around 10:30 am, he was shot
dead inside the Baguio Wagwagan Ukay-ukay in San Pedro, Puerto Princesa City, Palawan.
After a brief chase with police officers, Marlon B. Recamata was arrested. On the same day,
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he made an extrajudicial confession admitting that he shot Dr. Ortega. He also implicated
Rodolfo "Bumar" O. Edrad (Edrad), Dennis C. Aranas, and Armando "Salbakotah" R. Noel,
Jr.
On February 6, 2011, Edrad executed a Sinumpaang Salaysay before the Counter-Terrorism
Division of the National Bureau of Investigation where he alleged that it was former
Palawan Governor Mario Joel T. Reyes (former Governor Reyes) who ordered the killing of
Dr. Ortega.
On February 7, 2011, Secretary of Justice Leila De Lima issued Department Order No. 0918
creating a special panel of prosecutors (First Panel) to conduct preliminary investigation.
The First Panel was composed of Senior Assistant Prosecutor Edwin S. Dayog, Assistant
State Prosecutor Bryan Jacinto S. Cacha, and Assistant State Prosecutor John Benedict D.
Medina.
On February 14, 2011, Dr. Patria Gloria Inocencio-Ortega (Dr. Inocencio-Ortega), Dr.
Ortega's wife, filed a Supplemental Affidavit-Complaint implicating former Governor Reyes
as the mastermind of her husband's murder. Former Governor Reyes' brother, Coron Mayor
Mario T. Reyes, Jr., former Marinduque Governor Jose T. Carreon, former Provincial
Administrator Atty. Romeo Seratubias, Marlon Recamata, Dennis Aranas, Valentin Lesias,
Arturo D. Regalado; Armando Noel, Rodolfo O. Edrad, and several John and Jane Does were
also implicated.
On June 8, 2011, the First Panel concluded its preliminary investigation and issued the
Resolution dismissing the Affidavit-Complaint.
On June 28, 2011, Dr. Inocencio-Ortega filed a Motion to Re-Open Preliminary
Investigation, which, among others, sought the admission of mobile phone
communications between former Governor Reyes and Edrad. On July 7, 2011, while the
Motion to Re-Open was still pending, Dr. Inocencio-Ortega filed a Motion for Partial
Reconsideration Ad Cautelam of the Resolution dated June 8, 2011. Both Motions were
denied by the First Panel in the Resolution dated September 2, 2011.
On September 7, 2011, the Secretary of Justice issued Department Order No. 710 creating a
new panel of investigators (Second Panel) to conduct a reinvestigation of the case. The
Second Panel was composed of Assistant State Prosecutor Stewart Allan M. Mariano,
Assistant State Prosecutor Vimar M. Barcellano, and Assistant State Prosecutor Gerard E.
Gaerlan.
Department Order No. 710 ordered the reinvestigation of the case "in the interest of service
and due process" to address the offer of additional evidence denied by the First Panel in its
Resolution dated September 2, 2011. The Department Order also revoked Department
Order No. 091.
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Pursuant to Department Order No. 710, the Second Panel issued a Subpoena requiring
former Governor Reyes to appear before them on October 6 and 13, 2011 and to submit his
counter-affidavit and supporting evidence.
On September 29, 2011, Dr. Inocencio-Ortega filed before the Secretary of Justice a Petition
for Review (Ad Cautelam) assailing the First Panel's Resolution dated September 2, 2011.
On October 3, 2011, former Governor Reyes filed before the Court of Appeals a Petition for
Certiorari and Prohibition with Prayer for a Writ of Preliminary Injunction and/or
Temporary Restraining Order assailing the creation of the Second Panel. In his Petition, he
argued that the Secretary of Justice gravely abused her discretion when she constituted a
new panel. He also argued that the parties were already afforded due process and that the
evidence to be addressed by the reinvestigation was neither new nor material to the case.
On March 12, 2012, the Second Panel issued the Resolution finding probable cause and
recommending the filing of informations on all accused, including former Governor Reyes.
Branch 52 of the Regional Trial Court of Palawan subsequently issued warrants of arrest on
March 27, 2012. However, the warrants against former Governor Reyes and his brother were
ineffective since the two allegedly left the country days before the warrants could be served.
On March 29, 2012, former Governor Reyes filed before the Secretary of Justice a Petition
for Review Ad Cautelam assailing the Second Panel's Resolution dated March 12, 2012.
On April 2, 2012, he also filed before the Court of Appeals a Supplemental Petition for
Certiorari and Prohibition with Prayer for Writ of Preliminary Injunction and/or
Temporary Restraining Order impleading Branch 52 of the Regional Trial Court of Palawan.
In his Supplemental Petition, former Governor Reyes argued that the Regional Trial Court
could not enforce the Second Panel's Resolution dated March 12, 2012 and proceed with the
prosecution of his case since this Resolution was void.
On March 19, 2013, the Court of Appeals, in a Special Division of Five, rendered the
Decision26 declaring Department Order No. 710 null and void and reinstating the First
Panel's Resolutions dated June 8, 2011 and September 2, 2011.
According to the Court of Appeals, the Secretary of Justice committed grave abuse of
discretion when she issued Department Order No. 710 and created the Second Panel. The
Court of Appeals found that she should have modified or reversed the Resolutions of the
First Panel pursuant to the 2000 NPS Rule on Appeal27 instead of issuing Department'
Order No. 710 and creating the Second Panel. It found that because of her failure to follow
the procedure in the 2000 NPS Rule on Appeal, two Petitions for Review Ad Cautelam filed
by the opposing parties were pending before her.
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The Court of Appeals also found that the Secretary of Justice's admission that the issuance
of Department Order No. 710 did not set aside the First Panel's Resolution dated June 8,
2011 and September 2, 2011 "[compounded] the already anomalous situation." It also stated
that Department Order No. 710 did not give the Second Panel the power to reverse, affirm,
or modify the Resolutions of the First Panel; therefore, the Second Panel did not have the
authority to assess the admissibility and weight of any existing or additional evidence.
The Secretary of Justice, the Second Panel, and Dr. Inocencio-Ortega filed a Motion for
Reconsideration of the Decision dated March 19, 2013. The Motion, however, was denied
by the Court of Appeals in the Resolution31 dated September 27, 2013.
In its Resolution, the Court of Appeals stated that the Secretary of Justice had not shown
the alleged miscarriage of justice sought to be prevented by the creation of the Second
Panel since both parties were given full opportunity to present their evidence before the
First Panel. It also ruled that the evidence examined by the Second Panel was not additional
evidence but "forgotten evidence" that was already available before the First Panel during
the conduct of the preliminary investigation.
Aggrieved, the Secretary of Justice and the Second Panel elevated the ruling of the Court of
Appeals to the Supreme Court.
Issue: Whether the issuance of Department Order No. 710 was an executive function
beyond the scope of a petition for certiorari or prohibition.
Ruling:
The determination by the Department of Justice of the existence of probable cause is not a
quasi-judicial proceeding. However, the actions of the Secretary of Justice in affirming or
reversing the findings of prosecutors may still be subject to judicial review if it is tainted
with grave abuse of discretion.
Under the Rules of Court, a writ of certiorari is directed against "any tribunal, board or
officer exercising judicial or quasi-judicial functions." A quasi-judicial function is "the
action, discretion, etc., of public administrative officers or bodies, who are required to
investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions
from them, as a basis for their official action and to exercise discretion of a judicial nature."
Otherwise stated, an administrative agency performs quasi-judicial functions if it renders
awards, determines the rights of opposing parties, or if their decisions have the same effect
as the judgment of a court.
In a preliminary investigation, the prosecutor does not determine the guilt or
innocence of an accused. The prosecutor only determines "whether there is
sufficient ground to engender a well-founded belief that a crime has been
committed and the respondent is probably guilty thereof, and should be held
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for trial." As such, the prosecutor does not perform quasi-judicial functions.
In Santos v. Go:
[T]he prosecutor in a preliminary investigation does not determine the guilt or
innocence of the accused. He does not exercise adjudication nor rule-making
functions. Preliminary investigation is merely inquisitorial, and is often the only
means of discovering the persons who may be reasonably charged with a crime
and to enable the fiscal to prepare his complaint or information. It is not a trial
of the case on the merits and has no purpose except that of determining whether
a crime has been committed and whether there is probable cause to believe that
the accused is guilty thereof. While the fiscal makes that determination, he
cannot be said to be acting as a quasi-court, for it is the courts, ultimately, that
pass judgment on the accused, not the fiscal.
Though some cases describe the public prosecutors power to conduct a
preliminary investigation as quasi-judicial in nature, this is true only to the
extent that, like quasi-judicial bodies, the prosecutor is an officer of the
executive department exercising powers akin to those of a court, and the
similarity ends at this point. A quasi-judicial body is as an organ of government
other than a court and other than a legislature which affects the rights of private
parties through either adjudication or rule-making. A quasi-judicial agency
performs adjudicatory functions such that its awards, determine the rights of
parties, and their decisions have the same effect as judgments of a court. Such
is not the case when a public prosecutor conducts a preliminary investigation to
determine probable cause to file an information against a person charged with
a criminal offense, or when the Secretary of Justice is reviewing the formers
order or resolutions.
In Spouses Dacudao v. Secretary of Justice, a petition for certiorari, prohibition, and.
mandamus was filed.against the Secretary of Justice's issuance of a department order. The
assailed order directed all prosecutors to forward all cases already filed against Celso de los
Angeles of the Legacy Group to the Secretariat of the Special Panel created by the
Department of Justice.
This court dismissed the petition on the ground that petitions for certiorari and prohibition
are directed only to tribunals that exercise judicial or quasi-judicial functions. The issuance
of the department order was a purely administrative or executive function of the Secretary
of Justice. While the Department of Justice may perform functions similar to that of a court
of law, it is not a quasi-judicial agency:
The fact that the DOJ is the primary prosecution arm of the Government does not
make it a quasi-judicial office or agency. Its preliminary investigation of cases is
not a quasi-judicial proceeding. Nor does the DOJ exercise a quasi-judicial
function when it reviews the findings of a public prosecutor on the finding of
probable cause in any case. Indeed, in Bautista v. Court of Appeals, the Supreme
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Court has held that a preliminary investigation is not a quasi-judicial
proceeding, stating:
... [t]he prosecutor in a preliminary investigation does not determine
the guilt or innocence of the accused. He does not exercise
adjudication nor rule-making functions. Preliminary investigation is
merely inquisitorial, and is often the only means of discovering the
persons who may be reasonably charged with a crime and to enable
the fiscal to prepare his complaint or information. It is not a trial of
the case on the merits and has no purpose except that of determining
whether a crime has been committed and whether there is probable
cause to believe that the accused is guilty thereof. While the fiscal
makes that determination, he cannot be said to be acting as a quasicourt, for it is the courts, ultimately, that pass judgment on the
accused, not the fiscal.
There may be some decisions of the Court that have characterized
the public prosecutor's power to conduct a preliminary investigation
as quasi-judicial in nature. Still, this characterization is true only to
the extent that the public prosecutor, like a quasi-judicial body, is an
officer of the executive department exercising powers akin to those
of a court of law.
But the limited similarity between the public prosecutor and a quasijudicial body quickly ends there. For sure, a quasi-judicial body is an
organ of government other than a court of law or a legislative office
that affects the rights of private parties through either adjudication
or rulemaking; it performs adjudicatory functions, and its awards and
adjudications determine the rights of the parties coming before it; its
decisions have the same effect as the judgments of a court of law. In
contrast, that is not the effect whenever a public prosecutor conducts
a preliminary investigation to determine. probable cause in order to
file a criminal information against a person properly charged with
the offense, or whenever the Secretary of Justice reviews the public
prosecutor's orders or resolutions. (Emphasis supplied)
Similarly, in Callo-Claridad v. Esteban, we have stated that a petition for review under Rule
43 of the Rules of Court cannot be brought to assail the Secretary of Justice's resolution
dismissing a complaint for lack of probable cause since this is an "essentially executive
function":
A petition for review under Rule 43 is a mode of appeal to be taken only to review
the decisions, resolutions or awards by the quasi-judicial officers, agencies or
bodies, particularly those specified in Section 1 of Rule 43. In the matter before
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us, however, the Secretary of Justice was not an officer performing a quasijudicial function. In reviewing the findings of the OCP of Quezon City on the
matter of probable cause, the Secretary of Justice performed an essentially
executive function to determine whether the crime alleged against the
respondents was committed, and whether there was 'probable cause to believe
that the respondents were guilty thereof.
A writ of prohibition, on the other hand, is directed against "the proceedings of any
tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial
or ministerial functions." The Department of Justice is not a court of law and its officers do
not perform quasi-judicial functions. The Secretary of Justice's review of the resolutions of
prosecutors is also not a ministerial function.
An act is considered ministerial if "an officer or tribunal performs in the context of a given
set of facts, in a prescribed manner and without regard for the exercise of his or its own
judgment, upon the propriety or impropriety of the act done." In contrast, an act is
considered discretionary "[i]f the law imposes a duty upon a public officer, and gives him
the right to decide how or when the duty shall be performed." Considering that "full
discretionary authority has been delegated to the executive branch in the determination of
probable cause during a preliminary investigation," the functions of the prosecutors and
the Secretary of Justice are not ministerial.
However, even when an administrative agency does not perform a judicial, quasi-judicial,
or ministerial function, the Constitution mandates the exercise of judicial review when
there is an allegation of grave abuse of discretion. In Auto Prominence Corporation v.
Winterkorn:
In ascertaining whether the Secretary of Justice committed grave abuse of
discretion amounting to lack or excess of jurisdiction in his determination of the
existence of probable cause, the party seeking the writ of certiorari must be able
to establish that the Secretary of Justice exercised his executive power in an
arbitrary and despotic manner, by reason of passion or personal hostility, and
the abuse of discretion must be so patent and gross as would amount to an
evasion or to a unilateral refusal to perform the duty enjoined or to act in
contemplation of law. Grave abuse of discretion is not enough; it must amount
to lack or excess of jurisdiction. Excess of jurisdiction signifies that he had
jurisdiction over the case, but (he) transcended the same or acted without
authority.
Therefore, any question on whether the Secretary of Justice committed grave abuse of
discretion amounting to lack or excess of jurisdiction in affirming, reversing, or modifying
the resolutions of prosecutors may be the subject of a petition for certiorari under Rule 65
of the Rules of Court.
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NATIONAL ARTIST FOR LITERATURE VIRGILIO ALMARIO, CONCERNED
ARTISTS OF THE PHILIPPINES (CAP), et al. vs. THE EXECUTIVE SECRETARY, THE
SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE
CULTURAL CENTER OF THE PHILIPPINES, THE NATIONAL COMMISSION ON
CULTURE AND THE ARTS, et al.
G.R. No. 189028, July 16, 2013
J.Leonardo-De Castro
Where the nominees for the conferment of the Order of National Artists did not come from
the bodies duty bound to evaluate those eligible to receive the award, the granting of the said
award to the nominees constitutes grave abuse of discretion on the part of the President. The
faithful execution clause is best construed as an obligation imposed on the President, not a
separate grant of power. The President is not above the laws but is obliged to obey and execute
them.
Facts:
The Board of Trustees of the Cultural Center of the Philippines (CCP) and the National
Commission for Culture and the Arts (NCCA) were bodies responsible for administering
the National Artists Award. They also review the guidelines for the nomination, selection
and administration of the National Artists Award.
In 2007, the Board of Trustees of CCP and the NCCA Board of Commissioners opened the
evaluation of the 2009 Order of National Artists and the nomination period was set. After
due deliberations, the bodies recommended to the President the granting of National Artist
Award to Manuel Conde, Ramon Santos, Lazaro Francisco and Frederico Aguilar-Alcuaz.
Meanwhile, the Office of the President allegedly received nominations from various
sectors, cultural groups and individuals recommending Cecile Guidote-Alvarez, Carlo
Caparas, Francisco Mañosa and Jose Moreno.
President Gloria Macapagal-Arroyo conferred the Order of National Artists on Manuel
Conde, Lazaro Francisco, Frederico Aguilar-Alcuaz, Guidote-Alvarez, Caparas, Mañosa and
Moreno.
The petitioners filed the present petition claiming that it is the exclusive province of the
NCCA Board of Commissioners and the CCP Board of Trustees to select those who will be
conferred the Order of National Artists and to set the standard for entry into that select
group. The petitioners pray that the conferment of Order of National Artists on
respondents Guidote-Alvarez, Caparas, Mañosa and Moreno be enjoined and declared to
have been rendered in grave abuse of discretion.
Issue:
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Whether or not the conferment of Order of National Artists on the private respondents
have been rendered in grave abuse of discretion
Ruling:
The respective powers of the CCP Board of Trustees and of the NCCA Board of
Commissioners with respect to the conferment of the Order of National Artists are clear.
They jointly administer the said award and, upon their recommendation or advice, the
President confers the Order of National Artists.
To "recommend" and to "advise" are synonymous. To "recommend" is "to advise or
counsel." To "advise" is "to give an opinion or counsel, or recommend a plan or course of
action; also to give notice. To encourage, inform or acquaint." "Advise" imports that it is
discretionary or optional with the person addressed whether he will act on such advice or
not. This has been clearly explained in Cojuangco, Jr. v. Atty. Palma:
The "power to recommend" includes the power to give "advice,
exhortation or indorsement, which is essentially persuasive in
character, not binding upon the party to whom it is made." (Emphasis
supplied.)
Thus, in the matter of the conferment of the Order of National Artists, the President may
or may not adopt the recommendation or advice of the NCCA and the CCP Boards. In other
words, the advice of the NCCA and the CCP is subject to the President’s discretion.
Nevertheless, the President’s discretion on the matter is not totally unfettered, nor the role
of the NCCA and the CCP Boards meaningless.
Discretion is not a free-spirited stallion that runs and roams wherever it pleases but is
reined in to keep it from straying. In its classic formulation, "discretion is not unconfined
and vagrant" but "canalized within banks that keep it from overflowing."
The President’s power must be exercised in accordance with existing laws. Section 17,
Article VII of the Constitution prescribes faithful execution of the laws by the President:
Sec. 17. The President shall have control of all the executive
departments, bureaus and offices. He shall ensure that the laws be
faithfully executed. (Emphasis supplied.)
The President’s discretion in the conferment of the Order of National Artists should be
exercised in accordance with the duty to faithfully execute the relevant laws. The faithful
execution clause is best construed as an obligation imposed on the President, not a separate
grant of power. It simply underscores the rule of law and, corollarily, the cardinal principle
that the President is not above the laws but is obliged to obey and execute them. This is
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precisely why the law provides that "administrative or executive acts, orders and
regulations shall be valid only when they are not contrary to the laws or the Constitution."
In this connection, the powers granted to the NCCA and the CCP Boards in connection
with the conferment of the Order of National Artists by executive issuances were
institutionalized by two laws, namely, Presidential Decree No. 208 dated June 7, 1973 and
Republic Act No. 7356. In particular, Proclamation No. 1144 dated May 15, 1973 constituted
the CCP Board as the National Artists Awards Committee and tasked it to "administer the
conferment of the category of National Artist" upon deserving Filipino artists with the
mandate to "draft the rules to guide its deliberations in the choice of National Artists":
Proclamation No. 1001 dated April 27, 1972, creating the Award and
Decoration of National Artist, is hereby amended by creating a National
Artists Awards Committee, hereinafter to administer the conferment of
the category of National Artist upon those deserving thereof. The
Committee, which shall be composed of members of the Board of
Trustees of the Cultural Center of the Philippines, shall organize itself
immediately and shall draft the rules to guide its deliberations in the
choice of National Artists, to the end that those who have created a
body of work in the arts and in letters capable of withstanding the test
of time will be so recognized. (Emphases supplied.)
We have held that an administrative regulation adopted pursuant to law has the force and
effect of law. Thus, the rules, guidelines and policies regarding the Order of National Artists
jointly issued by the CCP Board of Trustees and the NCCA pursuant to their respective
statutory mandates have the force and effect of law. Until set aside, they are binding upon
executive and administrative agencies, including the President himself/herself as chief
executor of laws.
Furthermore, with respect to respondent Guidote-Alvarez who was the Executive Director
of the NCCA at that time, the Guidelines expressly provides:
6.5 NCCA and CCP Board members and consultants and NCCA and CCP officers and staff
are automatically disqualified from being nominated.
Respondent Guidote-Alvarez could not have even been nominated, hence, she was not
qualified to be considered and conferred the Order of National Artists at that time. The
President’s discretion on the matter does not extend to removing a legal impediment or
overriding a legal restriction.
From the foregoing, the advice or recommendation of the NCCA and the CCP Boards as to
the conferment of the Order of National Artists on Conde, Dr. Santos, Francisco and Alcuaz
was not binding on the former President but only discretionary or optional for her whether
or not to act on such advice or recommendation. Also, by virtue of the power of control,
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the President had the authority to alter or modify or nullify or set aside such
recommendation or advice. It was well within the President’s power and discretion to
proclaim all, or some or even none of the recommendees of the CCP and the NCCA Boards,
without having to justify his or her action. Thus, the exclusion of Santos did not constitute
grave abuse of discretion on the part of the former President.
The conferment of the Order of National Artists on respondents Guidote-Alvarez, Caparas,
Mañosa and Moreno was an entirely different matter.
There is grave abuse of discretion when an act is (1) done contrary to the Constitution, the
law or jurisprudence or (2) executed whimsically, capriciously or arbitrarily, out of malice,
ill will or personal bias.
There was a violation of the equal protection clause of the Constitution when the former
President gave preferential treatment to respondents Guidote-Alvarez, Caparas, Mañosa
and Moreno. The former President’s constitutional duty to faithfully execute the laws and
observe the rules, guidelines and policies of the NCCA and the CCP as to the selection of
the nominees for conferment of the Order of National Artists proscribed her from having
a free and uninhibited hand in the conferment of the said award. The manifest disregard
of the rules, guidelines and processes of the NCCA and the CCP was an arbitrary act that
unduly favored respondents Guidote-Alvarez, Caparas, Mañosa and Moreno. The
conferment of the Order of National Artists on said respondents was therefore made with
grave abuse of discretion and should be set aside.
SAGUISAG VS. OCHOA, JR.
779 SCRA 241, G.R. No. 212426, G.R. No. 212444 January 12, 2016
Facts:
The presence of the U.S. military forces in the country can be traced to their pivotal victory
in the 1898 Battle of Manila Bay during the Spanish-American War. Spain relinquished its
sovereignty over the Philippine Islands in favor of the U.S. upon its formal surrender a few
months later. By 1899, the Americans had consolidated a military administration in the
archipelago.
When it became clear that the American forces intended to impose colonial control over
the Philippine Islands, General Emilio Aguinaldo immediately led the Filipinos into an allout war against the U.S.27 The Filipinos were ultimately defeated in the PhilippineAmerican War, which lasted until 1902 and led to the downfall of the first Philippine
Republic. The Americans henceforth began to strengthen their foothold in the country.
They took over and expanded the former Spanish Naval Base in Subic Bay, Zambales, and
put up a cavalry post called Fort Stotsenberg in Pampanga, now known as Clark Air Base.
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When talks of the eventual independence of the Philippine Islands gained ground, the U.S.
manifested the desire to maintain military bases and armed forces in the country. The U.S.
Congress later enacted the Hare-Hawes-Cutting Act of 1933, which required that the
proposed constitution of an independent Philippines recognize the right of the U.S. to
maintain the latter's armed forces and military bases. The Philippine Legislature rejected
that law, as it also gave the U.S. the power to unilaterally designate any part of Philippine
territory as a permanent military or naval base of the U.S. within two years from complete
independence.
The U.S. Legislature subsequently crafted another law called the Tydings-McDuffie Act or
the Philippine Independence Act of 1934. Compared to the old Hare-Hawes-Cutting Act,
the new law provided for the surrender to the Commonwealth Government of "all military
and other reservations" of the U.S. government in the Philippines, except "naval
reservations and refueling stations." Furthermore, the law authorized the U.S. President to
enter into negotiations for the adjustment and settlement of all questions relating to naval
reservations and fueling stations within two years after the Philippines would have gained
independence. Under the Tydings-McDuffie Act, the U.S. President would proclaim the
American withdrawal and surrender of sovereignty over the islands 10 years after the
inauguration of the new government in the Philippines. This law eventually led to the
promulgation of the 1935 Philippine Constitution.
The original plan to surrender the military bases changed.37 At the height of the Second
World War, the Philippine and the U.S. Legislatures each passed resolutions authorizing
their respective Presidents to negotiate the matter of retaining military bases in the country
after the planned withdrawal of the U.S.38 Subsequently, in 1946, the countries entered
into the Treaty of General Relations, in which the U.S. relinquished all control and
sovereignty over the Philippine Islands, except the areas that would be covered by the
American military bases in the country.39 This treaty eventually led to the creation of the
post-colonial legal regime on which would hinge the continued presence of U.S. military
forces until 1991: the Military Bases Agreement (MBA) of 1947, the Military Assistance
Agreement of 1947, and the Mutual Defense Treaty (MDT) of 1951.
Soon after the Philippines was granted independence, the two countries entered into their
first military arrangement pursuant to the Treaty of General Relations - the 1947 MBA.41
The Senate concurred on the premise of "mutuality of security interest," which provided
for the presence and operation of 23 U.S. military bases in the Philippines for 99 years or
until the year 2046. The treaty also obliged the Philippines to negotiate with the U.S. to
allow the latter to expand the existing bases or to acquire new ones as military necessity
might require.
A number of significant amendments to the 1947 MBA were made. With respect to its
duration, the parties entered into the Ramos-Rusk Agreement of 1966, which reduced the
term of the treaty from 99 years to a total of 44 years or until 1991. Concerning the number
of U.S. military bases in the country, the Bohlen-Serrano Memorandum of Agreement
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provided for the return to the Philippines of 17 U.S. military bases covering a total area of
117,075 hectares. Twelve years later, the U.S. returned Sangley Point in Cavite City through
an exchange of notes. Then, through the Romulo-Murphy Exchange of Notes of 1979, the
parties agreed to the recognition of Philippine sovereignty over Clark and Subic Bases and
the reduction of the areas that could be used by the U.S. military. The agreement also
provided for the mandatory review of the treaty every five years. In 1983, the parties revised
the 1947 MBA through the Romualdez-Armacost Agreement. The revision pertained to the
operational use of the military bases by the U.S. government within the context of
Philippine sovereignty, including the need for prior consultation with the Philippine
government on the former' s use of the bases for military combat operations or the
establishment of long-range missiles.
Pursuant to the legislative authorization granted under Republic Act No. 9, the President
also entered into the 1947 Military Assistance Agreement with the U.S. This executive
agreement established the conditions under which U.S. military assistance would be
granted to the Philippines, particularly the provision of military arms, ammunitions,
supplies, equipment, vessels, services, and training for the latter's defense forces. An
exchange of notes in 1953 made it clear that the agreement would remain in force until
terminated by any of the parties.
To further strengthen their defense and security relationship, the Philippines and the U.S.
next entered into the MDT in 1951. Concurred in by both the Philippine and the U.S.
Senates, the treaty has two main features: first, it allowed for mutual assistance in
maintaining and developing their individual and collective capacities to resist an armed
attack; and second, it provided for their mutual self-defense in the event of an armed attack
against the territory of either party. The treaty was premised on their recognition that an
armed attack on either of them would equally be a threat to the security of the other.
In view of the impending expiration of the 1947 MBA in 1991, the Philippines and the U.S.
negotiated for a possible renewal of their defense and security relationship. Termed as the
Treaty of Friendship, Cooperation and Security, the countries sought to recast their military
ties by providing a new framework for their defense cooperation and the use of Philippine
installations. One of the proposed provisions included an arrangement in which U.S. forces
would be granted the use of certain installations within the Philippine naval base in Subic.
On 16 September 1991, the Senate rejected the proposed treaty.
The consequent expiration of the 1947 MBA and the resulting paucity of any formal
agreement dealing with the treatment of U.S. personnel in the Philippines led to the
suspension in 1995 of large-scale joint military exercises. In the meantime, the respective
governments of the two countries agreed to hold joint exercises at a substantially reduced
level. The military arrangements between them were revived in 1999 when they concluded
the first Visiting Forces Agreement (VFA).
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As a "reaffirm[ation] [of the] obligations under the MDT," the VFA has laid down the
regulatory mechanism for the treatment of U.S. military and civilian personnel visiting the
country. It contains provisions on the entry and departure of U.S. personnel; the purpose,
extent, and limitations of their activities; criminal and disciplinary jurisdiction; the waiver
of certain claims; the importation and exportation of equipment, materials, supplies, and
other pieces of property owned by the U.S. government; and the movement of U.S. military
vehicles, vessels, and aircraft into and within the country. The Philippines and the U.S. also
entered into a second counterpart agreement (VFA II), which in turn regulated the
treatment of Philippine military and civilian personnel visiting the U.S. The Philippine
Senate concurred in the first VFA on 27 May 1999.
Beginning in January 2002, U.S. military and civilian personnel started arriving in
Mindanao to take part in joint military exercises with their Filipino counterparts.78 Called
Balikatan, these exercises involved trainings aimed at simulating joint military maneuvers
pursuant to the MDT.
In the same year, the Philippines and the U.S. entered into the Mutual Logistics Support
Agreement to "further the interoperability, readiness, and effectiveness of their respective
military forces" in accordance with the MDT, the Military Assistance Agreement of 1953,
and the VFA. The new agreement outlined the basic terms, conditions, and procedures for
facilitating the reciprocal provision of logistics support, supplies, and services between the
military forces of the two countries. The phrase "logistics support and services" includes
billeting, operations support, construction and use of temporary structures, and storage
services during an approved activity under the existing military arrangements. Already
extended twice, the agreement will last until 2017.
EDCA authorizes the U.S. military forces to have access to and conduct activities within
certain "Agreed Locations" in the country. It was not transmitted to the Senate on the
executive's understanding that to do so was no longer necessary. Accordingly, in June 2014,
the Department of Foreign Affairs (DFA) and the U.S. Embassy exchanged diplomatic notes
confirming the completion of all necessary internal requirements for the agreement to
enter into force in the two countries.
According to the Philippine government, the conclusion of EDCA was the result of
intensive and comprehensive negotiations in the course of almost two years.87 After eight
rounds of negotiations, the Secretary of National Defense and the U.S. Ambassador to the
Philippines signed the agreement on 28 April 2014. President Benigno S. Aquino III ratified
EDCA on 6 June 2014. The OSG clarified during the oral arguments that the Philippine and
the U.S. governments had yet to agree formally on the specific sites of the Agreed Locations
mentioned in the agreement.
Two petitions for certiorari were thereafter filed before us assailing the constitutionality of
EDCA. They primarily argue that it should have been in the form of a treaty concurred in
by the Senate, not an executive agreement.
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On 10 November 2015, months after the oral arguments were concluded and the parties
ordered to file their respective memoranda, the Senators adopted Senate Resolution No.
(SR) 105. The resolution expresses the "strong sense" of the Senators that for EDCA to
become valid and effective, it must first be transmitted to the Senate for deliberation and
concurrence.
Issues:
A. Whether the essential requisites for judicial review are present.
B. Whether the President may enter into an executive agreement on foreign military bases,
troops, or facilities.
C. Whether the provisions under EDCA are consistent with the Constitution, as well as
with existing laws and treaties.
Ruling:
A. Petitioners are hailing this Court's power of judicial review in order to strike down EDCA
for violating the Constitution. They stress that our fundamental law is explicit in
prohibiting the presence of foreign military forces in the country, except under a treaty
concurred in by the Senate. Before this Court may begin to analyze the constitutionality or
validity of an official act of a coequal branch of government, however, petitioners must
show that they have satisfied all the essential requisites for judicial review.
Distinguished from the general notion of judicial power, the power of judicial review
specially refers to both the authority and the duty of this Court to determine whether a
branch or an instrumentality of government has acted beyond the scope of the latter's
constitutional powers. As articulated in Section 1, Article VIII of the Constitution, the
power of judicial review involves the power to resolve cases in which the questions concern
the constitutionality or validity of any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction, ordinance, or regulation.95 In Angara
v. Electoral Commission, this Court exhaustively discussed this "moderating power" as part
of the system of checks and balances under the Constitution. In our fundamental law, the
role of the Court is to determine whether a branch of government has adhered to the
specific restrictions and limitations of the latter's power:
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
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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.
xxxx
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. x x x. In
our case, this moderating power is granted, if not expressly, by clear implication from
section 2 of article VIII of [the 1935] 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. x x x x. (Emphases supplied)
The power of judicial review has since been strengthened in the 1987 Constitution. The
scope of that power has been extended to the determination of whether in matters
traditionally considered to be within the sphere of appreciation of another branch of
government, an exercise of discretion has been attended with grave abuse. The expansion
of this power has made the political question doctrine "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."
This moderating power, however, must be exercised carefully and only if it cannot be
completely avoided. We stress that our Constitution is so incisively designed that it
identifies the spheres of expertise within which the different branches of government shall
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function and the questions of policy that they shall resolve. Since the power of judicial
review involves the delicate exercise of examining the validity or constitutionality of an act
of a coequal branch of government, this Court must continually exercise restraint to avoid
the risk of supplanting the wisdom of the constitutionally appointed actor with that of its
own.
Even as we are left with no recourse but to bare our power to check an act of a coequal
branch of government - in this case the executive - we must abide by the stringent
requirements for the exercise of that power under the Constitution. Demetria v. Alba and
Francisco v. House of Representatives cite the "pillars" of the limitations on the power of
judicial review as enunciated in the concurring opinion of U.S. Supreme Court Justice
Brandeis in Ashwander v. Tennessee Valley Authority. Francisco redressed these "pillars"
under 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
These are the specific safeguards laid down by the Court when it exercises its power of
judicial review. Guided by these pillars, it may invoke the power only when the following
four stringent requirements are satisfied: (a) there is an actual case or controversy; (b)
petitioners possess locus standi; (c) the question of constitutionality is raised at the earliest
opportunity; and (d) the issue of constitutionality is the lis mota of the case.106 Of these
four, the first two conditions will be the focus of our discussion.
1. Petitioners have shown the presence of an actual case or controversy.
The OSG maintains that there is no actual case or controversy that exists, since the Senators
have not been deprived of the opportunity to invoke the privileges of the institution they
are representing. It contends that the nonparticipation of the Senators in the present
petitions only confirms that even they believe that EDCA is a binding executive agreement
that does not require their concurrence.
It must be emphasized that the Senate has already expressed its position through SR 105.108
Through the Resolution, the Senate has taken a position contrary to that of the OSG. As
the body tasked to participate in foreign affairs by ratifying treaties, its belief that EDCA
infringes upon its constitutional role indicates that an actual controversy - albeit brought
to the Court by non-Senators, exists.
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Moreover, we cannot consider the sheer abstention of the Senators from the present
proceedings as basis for finding that there is no actual case or controversy before us. We
point out that the focus of this requirement is the ripeness for adjudication of the matter
at hand, as opposed to its being merely conjectural or anticipatory. The case must involve
a definite and concrete issue involving real parties with conflicting legal rights and legal
claims admitting of specific relief through a decree conclusive in nature. It should not
equate with a mere request for an opinion or advice on what the law would be upon an
abstract, hypothetical, or contingent state of facts. As explained in Angara v. Electoral
Commission:
[The] 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 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.
(Emphases supplied)
We find that the matter before us involves an actual case or controversy that is already ripe
for adjudication. The Executive Department has already sent an official confirmation to the
U.S. Embassy that "all internal requirements of the Philippines x x x have already been
complied with." By this exchange of diplomatic notes, the Executive Department effectively
performed the last act required under Article XII(l) of EDCA before the agreement entered
into force. Section 25, Article XVIII of the Constitution, is clear that the presence of foreign
military forces in the country shall only be allowed by virtue of a treaty concurred in by the
Senate. Hence, the performance of an official act by the Executive Department that led to
the entry into force of an executive agreement was sufficient to satisfy the actual case or
controversy requirement.
2. While petitioners Saguisag et. al., do not have legal standing, they nonetheless
raise issues involving matters of transcendental importance.
The question of locus standi or legal standing focuses on the determination of whether
those assailing the governmental act have the right of appearance to bring the matter to
the court for adjudication. They must show that they have a personal and substantial
interest in the case, such that they have sustained or are in immediate danger of sustaining,
some direct injury as a consequence of the enforcement of the challenged governmental
act. Here, "interest" in the question involved must be material - an interest that is in issue
and will be affected by the official act - as distinguished from being merely incidental or
general. Clearly, it would be insufficient to show that the law or any governmental act is
invalid, and that petitioners stand to suffer in some indefinite way. They must show that
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they have a particular interest in bringing the suit, and that they have been or are about to
be denied some right or privilege to which they are lawfully entitled, or that they are about
to be subjected to some burden or penalty by reason of the act complained of.118 The reason
why those who challenge the validity of a law or an international agreement are required
to allege the existence of a personal stake in the outcome of the controversy is "to assure
the concrete adverseness which sharpens the presentation of issues upon which the court
so largely depends for illumination of difficult constitutional questions."
The present petitions cannot qualify as citizens', taxpayers', or legislators' suits; the Senate
as a body has the requisite standing, but considering that it has not formally filed a pleading
to join the suit, as it merely conveyed to the Supreme Court its sense that EDCA needs the
Senate's concurrence to be valid, petitioners continue to suffer from lack of standing.
In assailing the constitutionality of a governmental act, petitioners suing as citizens may
dodge the requirement of having to establish a direct and personal interest if they show
that the act affects a public right. In arguing that they have legal standing, they claim that
the case they have filed is a concerned citizen's suit. But aside from general statements that
the petitions involve the protection of a public right, and that their constitutional rights as
citizens would be violated, they fail to make any specific assertion of a particular public
right that would be violated by the enforcement of EDCA. For their failure to do so, the
present petitions cannot be considered by the Court as citizens' suits that would justify a
disregard of the aforementioned requirements.
In claiming that they have legal standing as taxpayers, petitioners aver that the
implementation of EDCA would result in the unlawful use of public funds. They emphasize
that Article X(1) refers to an appropriation of funds; and that the agreement entails a waiver
of the payment of taxes, fees, and rentals. During the oral arguments, however, they
admitted that the government had not yet appropriated or actually disbursed public funds
for the purpose of implementing the agreement. The OSG, on the other hand, maintains
that petitioners cannot sue as taxpayers. Respondent explains that EDCA is neither meant
to be a tax measure, nor is it directed at the disbursement of public funds.
A taxpayer's suit concerns a case in which the official act complained of directly involves
the illegal disbursement of public funds derived from taxation.125 Here, those challenging
the act must specifically show that they have sufficient interest in preventing the illegal
expenditure of public money, and that they will sustain a direct injury as a result of the
enforcement of the assailed act.126 Applying that principle to this case, they must establish
that EDCA involves the exercise by Congress of its taxing or spending powers.127
We agree with the OSG that the petitions cannot qualify as taxpayers' suits. We emphasize
that a taxpayers' suit contemplates a situation in which there is already an appropriation
or a disbursement of public funds.128 A reading of Article X(l) of EDCA would show that
there has been neither an appropriation nor an authorization of disbursement of funds.
The cited provision reads:
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All obligations under this Agreement are subject to the availability of appropriated funds
authorized for these purposes. (Emphases supplied)
This provision means that if the implementation of EDCA would require the disbursement
of public funds, the money must come from appropriated funds that are specifically
authorized for this purpose. Under the agreement, before there can even be a disbursement
of public funds, there must first be a legislative action. Until and unless the Legislature
appropriates funds for EDCA, or unless petitioners can pinpoint a specific item in the
current budget that allows expenditure under the agreement, we cannot at this time rule
that there is in fact an appropriation or a disbursement of funds that would justify the filing
of a taxpayers' suit.
Petitioners Bayan et al. also claim129 that their co-petitioners who are party-list
representatives have the standing to challenge the act of the Executive Department,
especially if it impairs the constitutional prerogatives, powers, and privileges of their office.
While they admit that there is no incumbent Senator who has taken part in the present
petition, they nonetheless assert that they also stand to sustain a derivative but substantial
injury as legislators. They argue that under the Constitution, legislative power is vested in
both the Senate and the House of Representatives; consequently, it is the entire Legislative
Department that has a voice in determining whether or not the presence of foreign military
should be allowed. They maintain that as members of the Legislature, they have the
requisite personality to bring a suit, especially when a constitutional issue is raised.
The OSG counters that petitioners do not have any legal standing to file the suits
concerning the lack of Senate concurrence in EDCA. Respondent emphasizes that the
power to concur in treaties and international agreements is an "institutional prerogative"
granted by the Constitution to the Senate. Accordingly, the OSG argues that in case of an
allegation of impairment of that power, the injured party would be the Senate as an
institution or any of its incumbent members, as it is the Senate's constitutional function
that is allegedly being violated.
The legal standing of an institution of the Legislature or of any of its Members has already
been recognized by this Court in a number of cases.131 What is in question here is the
alleged impairment of the constitutional duties and powers granted to, or the
impermissible intrusion upon the domain of, the Legislature or an institution thereof.132
In the case of suits initiated by the legislators themselves, this Court has recognized their
standing to question the validity of any official action that they claim infringes the
prerogatives, powers, and privileges vested by the Constitution in their office.133 As aptly
explained by Justice Perfecto in Mabanag v. Lopez Vito:134
Being members of Congress, they are even duty bound to see that the latter act within the
bounds of the Constitution which, as representatives of the people, they should uphold,
unless they are to commit a flagrant betrayal of public trust. They are representatives of the
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sovereign people and it is their sacred duty to see to it that the fundamental law embodying
the will of the sovereign people is not trampled upon. (Emphases supplied)
We emphasize that in a legislators' suit, those Members of Congress who are challenging
the official act have standing only to the extent that the alleged violation impinges on their
right to participate in the exercise of the powers of the institution of which they are
members.135 Legislators have the standing "to maintain inviolate the prerogatives, powers,
and privileges vested by the Constitution in their office and are allowed to sue to question
the validity of any official action, which they claim infringes their prerogatives as
legislators."136 As legislators, they must clearly show that there was a direct injury to their
persons or the institution to which they belong.
As correctly argued by respondent, the power to concur in a treaty or an international
agreement is an institutional prerogative granted by the Constitution to the Senate, not to
the entire Legislature. In Pimentel v. Office of the Executive Secretary, this Court did not
recognize the standing of one of the petitioners therein who was a member of the House
of Representatives. The petition in that case sought to compel the transmission to the
Senate for concurrence of the signed text of the Statute of the International Criminal Court.
Since that petition invoked the power of the Senate to grant or withhold its concurrence in
a treaty entered into by the Executive Department, only then incumbent Senator Pimentel
was allowed to assert that authority of the Senate of which he was a member.
Therefore, none of the initial petitioners in the present controversy has the standing to
maintain the suits as legislators.
Nevertheless, this Court finds that there is basis for it to review the act of the Executive for
the following reasons.
In any case, petitioners raise issues involving matters of transcendental importance. In a
number of cases, this Court has indeed taken a liberal stance towards the requirement of
legal standing, especially when paramount interest is involved. Indeed, when those who
challenge the official act are able to craft an issue of transcendental significance to the
people, the Court may exercise its sound discretion and take cognizance of the suit. It may
do so in spite of the inability of the petitioners to show that they have been personally
injured by the operation of a law or any other government act.
While this Court has yet to thoroughly delineate the outer limits of this doctrine, we
emphasize that not every other case, however strong public interest may be, can qualify as
an issue of transcendental importance. Before it can be impelled to brush aside the essential
requisites for exercising its power of judicial review, it must at the very least consider a
number of factors: (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 that has a more direct and specific interest in raising the present questions.141
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An exhaustive evaluation of the memoranda of the parties, together with the oral
arguments, shows that petitioners have presented serious constitutional issues that provide
ample justification for the Court to set aside the rule on standing. The transcendental
importance of the issues presented here is rooted in the Constitution itself. Section 25,
Article XVIII thereof, cannot be any clearer: there is a much stricter mechanism required
before foreign military troops, facilities, or bases may be allowed in the country. The DFA
has already confirmed to the U.S. Embassy that "all internal requirements of the Philippines
x x x have already been complied with."142 It behooves the Court in this instance to take a
liberal stance towards the rule on standing and to determine forthwith whether there was
grave abuse of discretion on the part of the Executive Department.
We therefore rule that this case is a proper subject for judicial review.
B. Whether the President may enter into an executive agreement on foreign
military bases, troops, or facilities
C. Whether the provisions under EDCA are consistent with the Constitution, as well
as with existing laws and treaties
Issues B and C shall be discussed together infra.
1. The role of the President as the executor of the law includes the duty to defend the State,
for which purpose he may use that power in the conduct of foreign relations
Historically, the Philippines has mirrored the division of powers in the U.S. government.
When the Philippine government was still an agency of the Congress of the U.S., it was as
an agent entrusted with powers categorized as executive, legislative, and judicial, and
divided among these three great branches.143 By this division, the law implied that the
divided powers cannot be exercised except by the department given the power.144
This divide continued throughout the different versions of the Philippine Constitution and
specifically vested the supreme executive power in the Governor-General of the
Philippines,145 a position inherited by the President of the Philippines when the country
attained independence. One of the principal functions of the supreme executive is the
responsibility for the faithful execution of the laws as embodied by the oath of office.146
The oath of the President prescribed by the 1987 Constitution reads thus:
I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as
President (or Vice-President or Acting President) of the Philippines, preserve and defend
its Constitution, execute its laws, do justice to every man, and consecrate myself to the
service of the Nation. So help me God. (In case of affirmation, last sentence will be
omitted.)147 (Emphases supplied)
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This Court has interpreted the faithful execution clause as an obligation imposed on the
President, and not a separate grant of power.148 Section 1 7, Article VII of the Constitution,
expresses this duty in no uncertain terms and includes it in the provision regarding the
President's power of control over the executive department, viz:
The President shall have control of all the executive departments, bureaus, and offices. He
shall ensure that the laws be faithfully executed.
The equivalent provisions in the next preceding Constitution did not explicitly require this
oath from the President. In the 1973 Constitution, for instance, the provision simply gives
the President control over the ministries.149 A similar language, not in the form of the
President's oath, was present in the 1935 Constitution, particularly in the enumeration of
executive functions.150 By 1987, executive power was codified not only in the Constitution,
but also in the Administrative Code:151
SECTION 1. Power of Control. - The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.
Hence, the duty to faithfully execute the laws of the land is inherent in executive power
and is intimately related to the other executive functions. These functions include the
faithful execution of the law in autonomous regions;152 the right to prosecute crimes;153
the implementation of transportation projects;154 the duty to ensure compliance with
treaties, executive agreements and executive orders;155 the authority to deport undesirable
aliens;156 the conferment of national awards under the President's jurisdiction;157 and the
overall administration and control of the executive department.
These obligations are as broad as they sound, for a President cannot function with crippled
hands, but must be capable of securing the rule of law within all territories of the Philippine
Islands and be empowered to do so within constitutional limits. Congress cannot, for
instance, limit or take over the President's power to adopt implementing rules and
regulations for a law it has enacted.
More important, this mandate is self-executory by virtue of its being inherently executive
in nature.160 As Justice Antonio T. Carpio previously wrote,
[i]f the rules are issued by the President in implementation or execution of self-executory
constitutional powers vested in the President, the rule-making power of the President is
not a delegated legislative power. The most important self-executory constitutional power
of the President is the President's constitutional duty and mandate to "ensure that the laws
be faithfully executed." The rule is that the President can execute the law without any
delegation of power from the legislature.
The import of this characteristic is that the manner of the President's execution of the law,
even if not expressly granted by the law, is justified by necessity and limited only by law,
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since the President must "take necessary and proper steps to carry into execution the law."
Justice George Malcolm states this principle in a grand manner:
The executive should be clothed with sufficient power to administer efficiently the affairs
of state. He should have complete control of the instrumentalities through whom his
responsibility is discharged. It is still true, as said by Hamilton, that "A feeble executive
implies a feeble execution of the government. A feeble execution is but another phrase for
a bad execution; and a government ill executed, whatever it may be in theory, must be in
practice a bad government." The mistakes of State governments need not be repeated here.
xxxx
Every other consideration to one side, this remains certain - The Congress of the United
States clearly intended that the Governor-General's power should be commensurate with
his responsibility. The Congress never intended that the Governor-General should be
saddled with the responsibility of administering the government and of executing the laws
but shorn of the power to do so. The interests of the Philippines will be best served by strict
adherence to the basic principles of constitutional government.
In light of this constitutional duty, it is the President's prerogative to do whatever is legal
and necessary for Philippine defense interests. It is no coincidence that the constitutional
provision on the faithful execution clause was followed by that on the President's
commander-in-chief powers, which are specifically granted during extraordinary events of
lawless violence, invasion, or rebellion. And this duty of defending the country is unceasing,
even in times when there is no state of lawlesss violence, invasion, or rebellion. At such
times, the President has full powers to ensure the faithful execution of the laws.
It would therefore be remiss for the President and repugnant to the faithful-execution
clause of the Constitution to do nothing when the call of the moment requires increasing
the military's defensive capabilities, which could include forging alliances with states that
hold a common interest with the Philippines or bringing an international suit against an
offending state.
The context drawn in the analysis above has been termed by Justice Arturo D. Brion's
Dissenting Opinion as the beginning of a "patent misconception."165 His dissent argues
that this approach taken in analyzing the President's role as executor of the laws is preceded
by the duty to preserve and defend the Constitution, which was allegedly overlooked.166
In arguing against the approach, however, the dissent grossly failed to appreciate the
nuances of the analysis, if read holistically and in context. The concept that the President
cannot function with crippled hands and therefore can disregard the need for Senate
concurrence in treaties167 was never expressed or implied. Rather, the appropriate reading
of the preceding analysis shows that the point being elucidated is the reality that the
President's duty to execute the laws and protect the Philippines is inextricably interwoven
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with his foreign affairs powers, such that he must resolve issues imbued with both concerns
to the full extent of his powers, subject only to the limits supplied by law. In other words,
apart from an expressly mandated limit, or an implied limit by virtue of incompatibility,
the manner of execution by the President must be given utmost deference. This approach
is not different from that taken by the Court in situations with fairly similar contexts.
Thus, the analysis portrayed by the dissent does not give the President authority to bypass
constitutional safeguards and limits. In fact, it specifies what these limitations are, how
these limitations are triggered, how these limitations function, and what can be done
within the sphere of constitutional duties and limitations of the President.
Justice Brion's dissent likewise misinterprets the analysis proffered when it claims that the
foreign relations power of the President should not be interpreted in isolation.168 The
analysis itself demonstrates how the foreign affairs function, while mostly the President's,
is shared in several instances, namely in Section 2 of Article II on the conduct of war;
Sections 20 and 21 of Article VII on foreign loans, treaties, and international agreements;
Sections 4(2) and 5(2)(a) of Article VIII on the judicial review of executive acts; Sections 4
and 25 of Article XVIII on treaties and international agreements entered into prior to the
Constitution and on the presence of foreign military troops, bases, or facilities.
In fact, the analysis devotes a whole subheading to the relationship between the two major
presidential functions and the role of the Senate in it.
This approach of giving utmost deference to presidential initiatives in respect of foreign
affairs is not novel to the Court. The President's act of treating EDCA as an executive
agreement is not the principal power being analyzed as the Dissenting Opinion seems to
suggest. Rather, the preliminary analysis is in reference to the expansive power of foreign
affairs. We have long treated this power as something the Courts must not unduly restrict.
As we stated recently in Vinuya v. Romulo:
To be sure, not all cases implicating foreign relations present political questions, and courts
certainly possess the authority to construe or invalidate treaties and executive agreements.
However, the question whether the Philippine government should espouse claims of its
nationals against a foreign government is a foreign relations matter, the authority for which
is demonstrably committed by our Constitution not to the courts but to the political
branches. In this case, the Executive Department has already decided that it is to the best
interest of the country to waive all claims of its nationals for reparations against Japan in
the Treaty of Peace of 1951. The wisdom of such decision is not for the courts to question.
Neither could petitioners herein assail the said determination by the Executive Department
via the instant petition for certiorari.
In the seminal case of US v. Curtiss-Wright Export Corp., the US Supreme Court held that
"[t]he President is the sole organ of the nation in its external relations, and its sole
representative with foreign relations."
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It is quite apparent that if, in the maintenance of our international relations,
embarrassment - perhaps serious embarrassment - is to be avoided and success for our aims
achieved, congressional legislation which is to be made effective through negotiation and
inquiry within the international field must often accord to the President a degree of
discretion and freedom from statutory restriction which would not be admissible where
domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity of
knowing the conditions which prevail in foreign countries, and especially is this true in
time of war. He has his confidential sources of information. He has his agents in the form
of diplomatic, consular and other officials ....
This ruling has been incorporated in our jurisprudence through Bavan v. Executive
Secretary and Pimentel v. Executive Secretary; its overreaching principle was, perhaps, best
articulated in (now Chief) Justice Puno's dissent in Secretary of Justice v. Lantion:
. . . The conduct of foreign relations is full of complexities and consequences, sometimes
with life and death significance to the nation especially in times of war. It can only be
entrusted to that department of government which can act on the basis of the best available
information and can decide with decisiveness .... It is also the President who possesses the
most comprehensive and the most confidential information about foreign countries for our
diplomatic and consular officials regularly brief him on meaningful events all over the
world. He has also unlimited access to ultra-sensitive military intelligence data. In fine, the
presidential role in foreign affairs is dominant and the President is traditionally accorded a
wider degree of discretion in the conduct of foreign affairs. The regularity, nay, validity of
his actions are adjudged under less stringent standards, lest their judicial repudiation lead
to breach of an international obligation, rupture of state relations, forfeiture of confidence,
national embarrassment and a plethora of other problems with equally undesirable
consequences.169 (Emphases supplied)
Understandably, this Court must view the instant case with the same perspective and
understanding, knowing full well the constitutional and legal repercussions of any judicial
overreach.
2. The plain meaning of the Constitution prohibits the entry of foreign military bases,
troops or facilities, except by way of a treaty concurred in by the Senate - a clear limitation
on the President's dual role as defender of the State and as sole authority in foreign
relations.
Despite the President's roles as defender of the State and sole authority in foreign relations,
the 1987 Constitution expressly limits his ability in instances when it involves the entry of
foreign military bases, troops or facilities. The initial limitation is found in Section 21 of the
provisions on the Executive Department: "No treaty or international agreement shall be
valid and effective unless concurred in by at least two-thirds of all the Members of the
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Senate." The specific limitation is given by Section 25 of the Transitory Provisions, the full
text of which reads as follows:
SECTION 25. After the expiration in 1991 of the Agreement between the Republic of the
Philippines and the United States of America concerning Military Bases, foreign military
bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly
concurred in by the Senate and, when the Congress so requires, ratified by a majority of the
votes cast by the people in a national referendum held for that purpose, and recognized as
a treaty by the other contracting State.
It is quite plain that the Transitory Provisions of the 1987 Constitution intended to add to
the basic requirements of a treaty under Section 21 of Article VII. This means that both
provisions must be read as additional limitations to the President's overarching executive
function in matters of defense and foreign relations.
3. The President, however, may enter into an executive agreement on foreign military bases,
troops, or facilities, if (a) it is not the instrument that allows the presence of foreign military
bases, troops, or facilities; or (b) it merely aims to implement an existing law or treaty.
Again we refer to Section 25, Article XVIII of the Constitution:
SECTION 25. After the expiration in 1991 of the Agreement between the Republic of the
Philippines and the United States of America concerning Military Bases, foreign military
bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly
concurred in by the Senate and, when the Congress so requires, ratified by a majority of the
votes cast by the people in a national referendum held for that purpose, and recognized as
a treaty by the other contracting State. (Emphases supplied)
In view of this provision, petitioners argue that EDCA must be in the form of a "treaty" duly
concurred in by the Senate. They stress that the Constitution is unambigous in mandating
the transmission to the Senate of all international agreements concluded after the
expiration of the MBA in 1991 - agreements that concern the presence of foreign military
bases, troops, or facilities in the country. Accordingly, petitioners maintain that the
Executive Department is not given the choice to conclude agreements like EDCA in the
form of an executive agreement.
This is also the view of the Senate, which, through a majority vote of 15 of its members with 1 against and 2 abstaining - says in SR 105171 that EDCA must be submitted to the
Senate in the form of a treaty for concurrence by at least two-thirds of all its members.
The Senate cites two constitutional provisions (Article VI, Section 21 and Article XVIII,
Section 25) to support its position. Compared with the lone constitutional provision that
the Office of the Solicitor General (OSG) cites, which is Article XVIII, Section 4(2), which
includes the constitutionality of "executive agreement(s)" among the cases subject to the
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Supreme Court's power of judicial review, the Constitution clearly requires submission of
EDCA to the Senate. Two specific provisions versus one general provision means that the
specific provisions prevail. The term "executive agreement" is "a term wandering alone in
the Constitution, bereft of provenance and an unidentified constitutional mystery."
The author of SR 105, Senator Miriam Defensor Santiago, upon interpellation even added
that the MDT, which the Executive claims to be partly implemented through EDCA, is
already obsolete.
There are two insurmountable obstacles to this Court's agreement with SR 105, as well as
with the comment on interpellation made by Senator Santiago.
First, the concept of "executive agreement" is so well-entrenched in this Court's
pronouncements on the powers of the President. When the Court validated the concept of
"executive agreement," it did so with full knowledge of the Senate's role in concurring in
treaties. It was aware of the problematique of distinguishing when an international
agreement needed Senate concurrence for validity, and when it did not; and the Court
continued to validate the existence of "executive agreements" even after the 1987
Constitution.172 This follows a long line of similar decisions upholding the power of the
President to enter into an executive agreement.173
Second, the MDT has not been rendered obsolescent, considering that as late as 2009,174
this Court continued to recognize its validity.
Third, to this Court, a plain textual reading of Article XIII, Section 25, inevitably leads to
the conclusion that it applies only to a proposed agreement between our government and
a foreign government, whereby military bases, troops, or facilities of such foreign
government would be "allowed" or would "gain entry" Philippine territory.
Note that the provision "shall not be allowed" is a negative injunction. This wording
signifies that the President is not authorized by law to allow foreign military bases, troops,
or facilities to enter the Philippines, except under a treaty concurred in by the Senate.
Hence, the constitutionally restricted authority pertains to the entry of the bases, troops,
or facilities, and not to the activities to be done after entry.
Under the principles of constitutional construction, of paramount consideration is the
plain meaning of the language expressed in the Constitution, or the verba legis rule.175 It
is presumed that the provisions have been carefully crafted in order to express the objective
it seeks to attain.176 It is incumbent upon the Court to refrain from going beyond the plain
meaning of the words used in the Constitution. It is presumed that the framers and the
people meant what they said when they said it, and that this understanding was reflected
in the Constitution and understood by the people in the way it was meant to be understood
when the fundamental law was ordained and promulgated.177 As this Court has often said:
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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.178 (Emphases
supplied)
It is only in those instances in which the constitutional provision is unclear, ambiguous, or
silent that further construction must be done to elicit its meaning.179 In Ang Bagong
Bayani-OFW v. Commission on Elections,180 we reiterated this guiding principle:
it [is] safer to construe the Constitution from what appears upon its face. The proper
interpretation therefore depends more on how it was understood by the people adopting
it than in the framers' understanding thereof.
The effect of this statement is surprisingly profound, for, if taken literally, the phrase "shall
not be allowed in the Philippines" plainly refers to the entry of bases, troops, or facilities in
the country. The Oxford English Dictionary defines the word "allow" as a transitive verb
that means "to permit, enable"; "to give consent to the occurrence of or relax restraint on
(an action, event, or activity)"; "to consent to the presence or attendance of (a person)";
and, when with an adverbial of place, "to permit (a person or animal) to go, come, or be in,
out, near, etc."181 Black's Law Dictionary defines the term as one that means "[t]o grant,
approve, or permit."182
The verb "allow" is followed by the word "in," which is a preposition used to indicate "place
or position in space or anything having material extension: Within the limits or bounds of,
within (any place or thing)."183 That something is the Philippines, which is the noun that
follows.
It is evident that the constitutional restriction refers solely to the initial entry of the foreign
military bases, troops, or facilities. Once entry is authorized, the subsequent acts are
thereafter subject only to the limitations provided by the rest of the Constitution and
Philippine law, and not to the Section 25 requirement of validity through a treaty.
The VFA has already allowed the entry of troops in the Philippines. This Court stated in
Lim v. Executive Secretary:
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After studied reflection, it appeared farfetched that the ambiguity surrounding the
meaning of the word "activities" arose from accident. In our view, it was deliberately made
that way to give both parties a certain leeway in negotiation. In this manner, visiting US
forces may sojourn in Philippine territory for purposes other than military. As conceived,
the joint exercises may include training on new techniques of patrol and surveillance to
protect the nation's marine resources, sea search-and-rescue operations to assist vessels in
distress, disaster relief operations, civic action projects such as the building of school
houses, medical and humanitarian missions, and the like.
Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only
logical to assume that "Balikatan 02-1," a "mutual anti- terrorism advising, assisting and
training exercise," falls under the umbrella of sanctioned or allowable activities in the
context of the agreement. Both the history and intent of the Mutual Defense Treaty and
the VFA support the conclusion that combat-related activities -as opposed to combat itselfsuch as the one subject of the instant petition, are indeed authorized.184 (Emphasis
supplied)
Moreover, the Court indicated that the Constitution continues to govern the conduct of
foreign military troops in the Philippines,185 readily implying the legality of their initial
entry into the country.
The OSG emphasizes that EDCA can be in the form of an executive agreement, since it
merely involves "adjustments in detail" in the implementation of the MDT and the VFA.186
It points out that there are existing treaties between the Philippines and the U.S. that have
already been concurred in by the Philippine Senate and have thereby met the requirements
of the Constitution under Section 25. Because of the status of these prior agreements,
respondent emphasizes that EDCA need not be transmitted to the Senate.
The aforecited Dissenting Opinion of Justice Brion disagrees with the ponencia's
application of verba legis construction to the words of Article XVIII, Section 25.187 It claims
that the provision is "neither plain, nor that simple."188 To buttress its disagreement, the
dissent states that the provision refers to a historical incident, which is the expiration of
the 1947 MBA.189 Accordingly, this position requires questioning the circumstances that
led to the historical event, and the meaning of the terms under Article XVIII, Section 25.
This objection is quite strange. The construction technique of verba legis is not inapplicable
just because a provision has a specific historical context. In fact, every provision of the
Constitution has a specific historical context. The purpose of constitutional and statutory
construction is to set tiers of interpretation to guide the Court as to how a particular
provision functions. Verba legis is of paramount consideration, but it is not the only
consideration. As this Court has often said:
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
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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.190 (Emphases
supplied)
As applied, verba legis aids in construing the ordinary meaning of terms. In this case, the
phrase being construed is "shall not be allowed in the Philippines" and not the preceding
one referring to "the expiration in 1991 of the Agreement between the Republic of the
Philippines and the United States of America concerning Military Bases, foreign military
bases, troops, or facilities." It is explicit in the wording of the provision itself that any
interpretation goes beyond the text itself and into the discussion of the framers, the context
of the Constitutional Commission's time of drafting, and the history of the 1947 MBA.
Without reference to these factors, a reader would not understand those terms. However,
for the phrase "shall not be allowed in the Philippines," there is no need for such reference.
The law is clear. No less than the Senate understood this when it ratified the VFA.
4. The President may generally enter into executive agreements subject to limitations
defined by the Constitution and may be in furtherance of a treaty already concurred in by
the Senate.
We discuss in this section why the President can enter into executive agreements.
It would be helpful to put into context the contested language found in Article XVIII,
Section 25. Its more exacting requirement was introduced because of the previous
experience of the country when its representatives felt compelled to consent to the old
MBA.191 They felt constrained to agree to the MBA in fulfilment of one of the major
conditions for the country to gain independence from the U.S.192 As a result of that
experience, a second layer of consent for agreements that allow military bases, troops and
facilities in the country is now articulated in Article XVIII of our present Constitution.
This second layer of consent, however, cannot be interpreted in such a way that we
completely ignore the intent of our constitutional framers when they provided for that
additional layer, nor the vigorous statements of this Court that affirm the continued
existence of that class of international agreements called "executive agreements."
The power of the President to enter into binding executive agreements without Senate
concurrence is already well-established in this jurisdiction.193 That power has been alluded
to in our present and past Constitutions,194 in various statutes,195 in Supreme Court
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decisions,196 and during the deliberations of the Constitutional Commission.197 They
cover a wide array of subjects with varying scopes and purposes,198 including those that
involve the presence of foreign military forces in the country.199
As the sole organ of our foreign relations200 and the constitutionally assigned chief
architect of our foreign policy,201 the President is vested with the exclusive power to
conduct and manage the country's interface with other states and governments. Being the
principal representative of the Philippines, the Chief Executive speaks and listens for the
nation; initiates, maintains, and develops diplomatic relations with other states and
governments; negotiates and enters into international agreements; promotes trade,
investments, tourism and other economic relations; and settles international disputes with
other states.2
As previously discussed, this constitutional mandate emanates from the inherent power of
the President to enter into agreements with other states, including the prerogative to
conclude binding executive agreements that do not require further Senate concurrence.
The existence of this presidential power203 is so well-entrenched that Section 5(2)(a),
Article VIII of the Constitution, even provides for a check on its exercise. As expressed
below, executive agreements are among those official governmental acts that can be the
subject of this Court's power of judicial review:
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules
of Court may provide, final judgments and orders of lower courts in:
(a) All cases in which the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction, ordinance,
or regulation is in question. (Emphases supplied)
In Commissioner of Customs v. Eastern Sea Trading, executive agreements are defined as
"international agreements embodying adjustments of detail carrying out well-established
national policies and traditions and those involving arrangements of a more or less
temporary nature."204 In Bayan Muna v. Romulo, this Court further clarified that executive
agreements can cover a wide array of subjects that have various scopes and purposes.205
They are no longer limited to the traditional subjects that are usually covered by executive
agreements as identified in Eastern Sea Trading. The Court thoroughly discussed this
matter in the following manner:
The categorization of subject matters that may be covered by international agreements
mentioned in Eastern Sea Trading is not cast in stone. x x x.
As may be noted, almost half a century has elapsed since the Court rendered its decision in
Eastern Sea Trading. Since then, the conduct of foreign affairs has become more complex
and the domain of international law wider, as to include such subjects as human rights, the
environment, and the sea. In fact, in the US alone, the executive agreements executed by
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its President from 1980 to 2000 covered subjects such as defense, trade, scientific
cooperation, aviation, atomic energy, environmental cooperation, peace corps, arms
limitation, and nuclear safety, among others. Surely, the enumeration in Eastern Sea
Trading cannot circumscribe the option of each state on the matter of which the
international agreement format would be convenient to serve its best interest. As Francis
Sayre said in his work referred to earlier:
. . . It would be useless to undertake to discuss here the large variety of executive
agreements as such concluded from time to time. Hundreds of executive agreements, other
than those entered into under the trade-agreement act, have been negotiated with foreign
governments. . . . They cover such subjects as the inspection of vessels, navigation dues,
income tax on shipping profits, the admission of civil air craft, custom matters and
commercial relations generally, international claims, postal matters, the registration of
trademarks and copyrights, etc ....
One of the distinguishing features of executive agreements is that their validity and
effectivity are not affected by a lack of Senate concurrence. This distinctive feature was
recognized as early as in Eastern Sea Trading (1961), viz:
Treaties are formal documents which require ratification with the approval of two-thirds
of the Senate. Executive agreements become binding through executive action without the
need of a vote by the Senate or by Congress.
xxxx
[T]he right of the Executive to enter into binding agreements without the necessity of
subsequent Congressional approval has been confirmed by long usage. From the earliest
days of our history we have entered into executive agreements covering such subjects as
commercial and consular relations, most-favored-nation rights, patent rights, trademark
and copyright protection, postal and navigation arrangements and the settlement of claims.
The validity of these has never been seriously questioned by our courts. (Emphases
Supplied)
That notion was carried over to the present Constitution. In fact, the framers specifically
deliberated on whether the general term "international agreement" included executive
agreements, and whether it was necessary to include an express proviso that would exclude
executive agreements from the requirement of Senate concurrence. After noted
constitutionalist Fr. Joaquin Bernas quoted the Court's ruling in Eastern Sea Trading, the
Constitutional Commission members ultimately decided that the term "international
agreements" as contemplated in Section 21, Article VII, does not include executive
agreements, and that a proviso is no longer needed. Their discussion is reproduced
below:207
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MS. AQUINO: Madam President, first I would like a clarification from the Committee. We
have retained the words "international agreement" which I think is the correct judgment
on the matter because an international agreement is different from a treaty. A treaty is a
contract between parties which is in the nature of international agreement and also a
municipal law in the sense that the people are bound. So there is a conceptual difference.
However, I would like to be clarified if the international agreements include executive
agreements.
MR. CONCEPCION: That depends upon the parties. All parties to these international
negotiations stipulate the conditions which are necessary for the agreement or whatever it
may be to become valid or effective as regards the parties.
MS. AQUINO: Would that depend on the parties or would that depend on the nature of
the executive agreement? According to common usage, there are two types of executive
agreement: one is purely proceeding from an executive act which affects external relations
independent of the legislative and the other is an executive act in pursuance of legislative
authorization. The first kind might take the form of just conventions or exchanges of notes
or protocol while the other, which would be pursuant to the legislative authorization, may
be in the nature of commercial agreements.
MR. CONCEPCION: Executive agreements are generally made to implement a treaty
already enforced or to determine the details for the implementation of the treaty. We are
speaking of executive agreements, not international agreements.
MS. AQUINO: I am in full agreement with that, except that it does not cover the first kind
of executive agreement which is just protocol or an exchange of notes and this would be in
the nature of reinforcement of claims of a citizen against a country, for example.
MR. CONCEPCION: The Commissioner is free to require ratification for validity insofar as
the Philippines is concerned.
MS. AQUINO: It is my humble submission that we should provide, unless the Committee
explains to us otherwise, an explicit proviso which would except executive agreements from
the requirement of concurrence of two-thirds of the Members of the Senate. Unless I am
enlightened by the Committee I propose that tentatively, the sentence should read. "No
treaty or international agreement EXCEPT EXECUTIVE AGREEMENTS shall be valid and
effective."
FR. BERNAS: I wonder if a quotation from the Supreme Court decision [in Eastern Sea
Trading] might help clarify this:
The right of the executive to enter into binding agreements without the necessity of
subsequent Congressional approval has been confirmed by long usage. From the earliest
days of our history, we have entered into executive agreements covering such subjects as
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commercial and consular relations, most favored nation rights, patent rights, trademark
and copyright protection, postal and navigation arrangements and the settlement of claims.
The validity of this has never been seriously questioned by our Courts.
Agreements with respect to the registration of trademarks have been concluded by the
executive of various countries under the Act of Congress of March 3, 1881 (21 Stat. 502) . . .
International agreements involving political issues or changes of national policy and those
involving international agreements of a permanent character usually take the form of
treaties. But international agreements embodying adjustments of detail, carrying out well
established national policies and traditions and those involving arrangements of a more or
less temporary nature usually take the form of executive agreements.
MR. ROMULO: Is the Commissioner, therefore, excluding the executive agreements?
FR. BERNAS: What we are referring to, therefore, when we say international agreements
which need concurrence by at least two-thirds are those which are permanent in nature.
MS. AQUINO: And it may include commercial agreements which are executive agreements
essentially but which are proceeding from the authorization of Congress. If that is our
understanding, then I am willing to withdraw that amendment.
FR. BERNAS: If it is with prior authorization of Congress, then it does not need subsequent
concurrence by Congress.
MS. AQUINO: In that case, I am withdrawing my amendment.
MR. TINGSON: Madam President.
THE PRESIDENT: Is Commissioner Aquino satisfied?
MS. AQUINO: Yes. There is already an agreement among us on the definition of "executive
agreements" and that would make unnecessary any explicit proviso on the matter.
xxx
MR. GUINGONA: I am not clear as to the meaning of "executive agreements" because I
heard that these executive agreements must rely on treaties. In other words, there must
first be treaties.
MR. CONCEPCION: No, I was speaking about the common use, as executive agreements
being the implementation of treaties, details of which do not affect the sovereignty of the
State.
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MR. GUINGONA: But what about the matter of permanence, Madam President? Would 99
years be considered permanent? What would be the measure of permanency? I do not
conceive of a treaty that is going to be forever, so there must be some kind of a time limit.
MR. CONCEPCION: I suppose the Commissioner's question is whether this type of
agreement should be included in a provision of the Constitution requiring the concurrence
of Congress.
MR. GUINGONA: It depends on the concept of the executive agreement of which I am not
clear. If the executive agreement partakes of the nature of a treaty, then it should also be
included.
MR. CONCEPCION: Whether it partakes or not of the nature of a treaty, it is within the
power of the Constitutional Commission to require that.
MR. GUINGONA: Yes. That is why I am trying to clarify whether the words "international
agreements" would include executive agreements.
MR. CONCEPCION: No, not necessarily; generally no.
xxx
MR. ROMULO: I wish to be recognized first. I have only one question. Do we take it,
therefore, that as far as the Committee is concerned, the term "international agreements"
does not include the term "executive agreements" as read by the Commissioner in that text?
FR. BERNAS: Yes. (Emphases Supplied)
The inapplicability to executive agreements of the requirements under Section 21 was again
recognized in Bayan v. Zamora and in Bayan Muna v. Romulo. These cases, both decided
under the aegis of the present Constitution, quoted Eastern Sea Trading in reiterating that
executive agreements are valid and binding even without the concurrence of the Senate.
Executive agreements may dispense with the requirement of Senate concurrence because
of the legal mandate with which they are concluded. As culled from the afore-quoted
deliberations of the Constitutional Commission, past Supreme Court Decisions, and works
of noted scholars, executive agreements merely involve arrangements on the
implementation of existing policies, rules, laws, or agreements. They are concluded (1) to
adjust the details of a treaty; (2) pursuant to or upon confirmation by an act of the
Legislature; or (3) in the exercise of the President's independent powers under the
Constitution. The raison d'etre of executive agreements hinges on prior constitutional or
legislative authorizations.
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The special nature of an executive agreement is not just a domestic variation in
international agreements. International practice has accepted the use of various forms and
designations of international agreements, ranging from the traditional notion of a treaty which connotes a formal, solemn instrument - to engagements concluded in modem,
simplified forms that no longer necessitate ratification.212 An international agreement may
take different forms: treaty, act, protocol, agreement, concordat, compromis d'arbitrage,
convention, covenant, declaration, exchange of notes, statute, pact, charter, agreed minute,
memorandum of agreement, modus vivendi, or some other form.213 Consequently, under
international law, the distinction between a treaty and an international agreement or even
an executive agreement is irrelevant for purposes of determining international rights and
obligations.
However, this principle does not mean that the domestic law distinguishing treaties,
international agreements, and executive agreements is relegated to a mere variation in
form, or that the constitutional requirement of Senate concurrence is demoted to an
optional constitutional directive. There remain two very important features that
distinguish treaties from executive agreements and translate them into terms of art in the
domestic setting.
First, executive agreements must remain traceable to an express or implied authorization
under the Constitution, statutes, or treaties. The absence of these precedents puts the
validity and effectivity of executive agreements under serious question for the main
function of the Executive is to enforce the Constitution and the laws enacted by the
Legislature, not to defeat or interfere in the performance of these rules.214 In turn,
executive agreements cannot create new international obligations that are not expressly
allowed or reasonably implied in the law they purport to implement.
Second, treaties are, by their very nature, considered superior to executive agreements.
Treaties are products of the acts of the Executive and the Senate215 unlike executive
agreements, which are solely executive actions.216 Because of legislative participation
through the Senate, a treaty is regarded as being on the same level as a statute. If there is
an irreconcilable conflict, a later law or treaty takes precedence over one that is prior. An
executive agreement is treated differently. Executive agreements that are inconsistent with
either a law or a treaty are considered ineffective.219 Both types of international agreement
are nevertheless subject to the supremacy of the Constitution.
This rule does not imply, though, that the President is given carte blanche to exercise this
discretion. Although the Chief Executive wields the exclusive authority to conduct our
foreign relations, this power must still be exercised within the context and the parameters
set by the Constitution, as well as by existing domestic and international laws. There are
constitutional provisions that restrict or limit the President's prerogative in concluding
international agreements, such as those that involve the following:
a. The policy of freedom from nuclear weapons within Philippine territory221
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b. The fixing of tariff rates, import and export quotas, tonnage and wharfage dues, and
other duties or imposts, which must be pursuant to the authority granted by Congress222
c. The grant of any tax exemption, which must be pursuant to a law concurred in by a
majority of all the Members of Congress223
d. The contracting or guaranteeing, on behalf of the Philippines, of foreign loans that must
be previously concurred in by the Monetary Board224
e. The authorization of the presence of foreign military bases, troops, or facilities in the
country must be in the form of a treaty duly concurred in by the Senate.225
f. For agreements that do not fall under paragraph 5, the concurrence of the Senate is
required, should the form of the government chosen be a treaty.
5. The President had the choice to enter into EDCA by way of an executive agreement or a
treaty.
No court can tell the President to desist from choosing an executive agreement over a treaty
to embody an international agreement, unless the case falls squarely within Article VIII,
Section 25.
As can be gleaned from the debates among the members of the Constitutional Commission,
they were aware that legally binding international agreements were being entered into by
countries in forms other than a treaty. At the same time, it is clear that they were also keen
to preserve the concept of "executive agreements" and the right of the President to enter
into such agreements.
What we can glean from the discussions of the Constitutional Commissioners is that they
understood the following realities:
1. Treaties, international agreements, and executive agreements are all constitutional
manifestations of the conduct of foreign affairs with their distinct legal characteristics.
a. Treaties are formal contracts between the Philippines and other States-parties, which are
in the nature of international agreements, and also of municipal laws in the sense of their
binding nature.226
b. International agreements are similar instruments, the provisions of which may require
the ratification of a designated number of parties thereto. These agreements involving
political issues or changes in national policy, as well as those involving international
agreements of a permanent character, usually take the form of treaties. They may also
include commercial agreements, which are executive agreements essentially, but which
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proceed from previous authorization by Congress, thus dispensing with the requirement of
concurrence by the Senate.227
c. Executive agreements are generally intended to implement a treaty already enforced or
to determine the details of the implementation thereof that do not affect the sovereignty
of the State.228
2. Treaties and international agreements that cannot be mere executive agreements must,
by constitutional decree, be concurred in by at least two-thirds of the Senate.
3. However, an agreement - the subject of which is the entry of foreign military troops,
bases, or facilities - is particularly restricted. The requirements are that it be in the form of
a treaty concurred in by the Senate; that when Congress so requires, it be ratified by a
majority of the votes cast by the people in a national referendum held for that purpose; and
that it be recognized as a treaty by the other contracting State.
4. Thus, executive agreements can continue to exist as a species of international
agreements.
That is why our Court has ruled the way it has in several cases.
In Bayan Muna v. Romulo, we ruled that the President acted within the scope of her
constitutional authority and discretion when she chose to enter into the RP-U.S. NonSurrender Agreement in the form of an executive agreement, instead of a treaty, and in
ratifying the agreement without Senate concurrence. The Court en banc discussed this
intrinsic presidential prerogative as follows:
Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does
of the nature of a treaty; hence, it must be duly concurred in by the Senate. x x x x. Pressing
its point, petitioner submits that the subject of the Agreement does not fall under any of
the subject-categories that xx x may be covered by an executive agreement, such as
commercial/consular relations, most-favored nation rights, patent rights, trademark and
copyright protection, postal and navigation arrangements and settlement of claims.
The categorization of subject matters that may be covered by international agreements
mentioned in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on
the propriety of entering, on a given subject, into a treaty or an executive agreement as an
instrument of international relations. The primary consideration in the choice of the form
of agreement is the parties' intent and desire to craft an international agreement in the
form they so wish to further their respective interests. Verily, the matter of form takes a
back seat when it comes to effectiveness and binding effect of the enforcement of a treaty
or an executive agreement, as the parties in either international agreement each labor
under the pacta sunt servanda principle.
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xxxx
But over and above the foregoing considerations is the fact that - save for the situation and
matters contemplated in Sec. 25, Art. XVIII of the Constitution - when a treaty is required,
the Constitution does not classify any subject, like that involving political issues, to be in
the form of, and ratified as, a treaty. What the Constitution merely prescribes is that treaties
need the concurrence of the Senate by a vote defined therein to complete the ratification
process.
xxxx
x x x. As the President wields vast powers and influence, her conduct in the external affairs
of the nation is, as Bayan would put it, "executive altogether." The right of the President to
enter into or ratify binding executive agreements has been confirmed by long practice.
In thus agreeing to conclude the Agreement thru E/N BF0-028-03, then President Gloria
Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted within the scope
of the authority and discretion vested in her by the Constitution. At the end of the day, the
President - by ratifying, thru her deputies, the non-surrender agreement - did nothing more
than discharge a constitutional duty and exercise a prerogative that pertains to her office.
(Emphases supplied)
Indeed, in the field of external affairs, the President must be given a larger measure of
authority and wider discretion, subject only to the least amount of checks and restrictions
under the Constitution.229 The rationale behind this power and discretion was recognized
by the Court in Vinuya v. Executive Secretary, cited earlier.230
Section 9 of Executive Order No. 459, or the Guidelines in the Negotiation of International
Agreements and its Ratification, thus, correctly reflected the inherent powers of the
President when it stated that the DFA "shall determine whether an agreement is an
executive agreement or a treaty."
Accordingly, in the exercise of its power of judicial review, the Court does not look into
whether an international agreement should be in the form of a treaty or an executive
agreement, save in cases in which the Constitution or a statute requires otherwise. Rather,
in view of the vast constitutional powers and prerogatives granted to the President in the
field of foreign affairs, the task of the Court is to determine whether the international
agreement is consistent with the applicable limitations.
6. Executive agreements may cover the matter of foreign military forces if it merely involves
detail adjustments.
The practice of resorting to executive agreements in adjusting the details of a law or a treaty
that already deals with the presence of foreign military forces is not at all unusual in this
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jurisdiction. In fact, the Court has already implicitly acknowledged this practice in Lim v.
Executive Secretary.231 In that case, the Court was asked to scrutinize the constitutionality
of the Terms of Reference of the Balikatan 02-1 joint military exercises, which sought to
implement the VFA. Concluded in the form of an executive agreement, the Terms of
Reference detailed the coverage of the term "activities" mentioned in the treaty and settled
the matters pertaining to the construction of temporary structures for the U.S. troops
during the activities; the duration and location of the exercises; the number of participants;
and the extent of and limitations on the activities of the U.S. forces. The Court upheld the
Terms of Reference as being consistent with the VFA. It no longer took issue with the fact
that the Balikatan Terms of Reference was not in the form of a treaty concurred in by the
Senate, even if it dealt with the regulation of the activities of foreign military forces on
Philippine territory.
In Nicolas v. Romulo,232 the Court again impliedly affirmed the use of an executive
agreement in an attempt to adjust the details of a provision of the VFA. The Philippines
and the U.S. entered into the Romulo-Kenney Agreement, which undertook to clarify the
detention of a U.S. Armed Forces member, whose case was pending appeal after his
conviction by a trial court for the crime of rape. In testing the validity of the latter
agreement, the Court precisely alluded to one of the inherent limitations of an executive
agreement: it cannot go beyond the terms of the treaty it purports to implement. It was
eventually ruled that the Romulo-Kenney Agreement was "not in accord" with the VFA,
since the former was squarely inconsistent with a provision in the treaty requiring that the
detention be "by Philippine authorities." Consequently, the Court ordered the Secretary of
Foreign Affairs to comply with the VFA and "forthwith negotiate with the United States
representatives for the appropriate agreement on detention facilities under Philippine
authorities as provided in Art. V, Sec. 10 of the VFA. "233
Culling from the foregoing discussions, we reiterate the following pronouncements to
guide us in resolving the present controversy:
1. Section 25, Article XVIII of the Constitution, contains stringent requirements that must
be fulfilled by the international agreement allowing the presence of foreign military bases,
troops, or facilities in the Philippines: (a) the agreement must be in the form of a treaty,
and (b) it must be duly concurred in by the Senate.
2. If the agreement is not covered by the above situation, then the President may choose
the form of the agreement (i.e., either an executive agreement or a treaty), provided that
the agreement dealing with foreign military bases, troops, or facilities is not the principal
agreement that first allows their entry or presence in the Philippines.
3. The executive agreement must not go beyond the parameters, limitations, and standards
set by the law and/or treaty that the former purports to implement; and must not unduly
expand the international obligation expressly mentioned or necessarily implied in the law
or treaty.
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4. The executive agreement must be consistent with the Constitution, as well as with
existing laws and treaties.
In light of the President's choice to enter into EDCA in the form of an executive agreement,
respondents carry the burden of proving that it is a mere implementation of existing laws
and treaties concurred in by the Senate. EDCA must thus be carefully dissected to ascertain
if it remains within the legal parameters of a valid executive agreement.
7. EDCA is consistent with the content, purpose, and framework of the MDT and the VFA
The starting point of our analysis is the rule that "an executive agreement xx x may not be
used to amend a treaty."234 In Lim v. Executive Secretary and in Nicolas v. Romulo, the
Court approached the question of the validity of executive agreements by comparing them
with the general framework and the specific provisions of the treaties they seek to
implement.
In Lim, the Terms of Reference of the joint military exercises was scrutinized by studying
"the framework of the treaty antecedents to which the Philippines bound itself,"235 i.e., the
MDT and the VFA. The Court proceeded to examine the extent of the term "activities" as
contemplated in Articles 1236 and II237 of the VFA. It later on found that the term
"activities" was deliberately left undefined and ambiguous in order to permit "a wide scope
of undertakings subject only to the approval of the Philippine government"238 and thereby
allow the parties "a certain leeway in negotiation."239 The Court eventually ruled that the
Terms of Reference fell within the sanctioned or allowable activities, especially in the
context of the VFA and the MDT.
The Court applied the same approach to Nicolas v. Romulo. It studied the provisions of the
VFA on custody and detention to ascertain the validity of the Romulo-Kenney
Agreement.240 It eventually found that the two international agreements were not in
accord, since the Romulo-Kenney Agreement had stipulated that U.S. military personnel
shall be detained at the U.S. Embassy Compound and guarded by U.S. military personnel,
instead of by Philippine authorities. According to the Court, the parties "recognized the
difference between custody during the trial and detention after conviction."241 Pursuant to
Article V(6) of the VFA, the custody of a U.S. military personnel resides with U.S. military
authorities during trial. Once there is a finding of guilt, Article V(l0) requires that the
confinement or detention be "by Philippine authorities."
Justice Marvic M.V.F. Leonen's Dissenting Opinion posits that EDCA "substantially
modifies or amends the VFA"242 and follows with an enumeration of the differences
between EDCA and the VFA. While these arguments will be rebutted more fully further on,
an initial answer can already be given to each of the concerns raised by his dissent.
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The first difference emphasized is that EDCA does not only regulate visits as the VFA does,
but allows temporary stationing on a rotational basis of U.S. military personnel and their
contractors in physical locations with permanent facilities and pre-positioned military
materiel.
This argument does not take into account that these permanent facilities, while built by
U.S. forces, are to be owned by the Philippines once constructed.243 Even the VFA allowed
construction for the benefit of U.S. forces during their temporary visits.
The second difference stated by the dissent is that EDCA allows the prepositioning of
military materiel, which can include various types of warships, fighter planes, bombers, and
vessels, as well as land and amphibious vehicles and their corresponding ammunition.244
However, the VFA clearly allows the same kind of equipment, vehicles, vessels, and aircraft
to be brought into the country. Articles VII and VIII of the VFA contemplates that U.S.
equipment, materials, supplies, and other property are imported into or acquired in the
Philippines by or on behalf of the U.S. Armed Forces; as are vehicles, vessels, and aircraft
operated by or for U.S. forces in connection with activities under the VFA. These provisions
likewise provide for the waiver of the specific duties, taxes, charges, and fees that
correspond to these equipment.
The third difference adverted to by the Justice Leonen's dissent is that the VFA
contemplates the entry of troops for training exercises, whereas EDCA allows the use of
territory for launching military and paramilitary operations conducted in other states.245
The dissent of Justice Teresita J. Leonardo-De Castro also notes that VFA was intended for
non-combat activides only, whereas the entry and activities of U.S. forces into Agreed
Locations were borne of military necessity or had a martial character, and were therefore
not contemplated by the VFA.
This Court's jurisprudence however established in no uncertain terms that combat-related
activities, as opposed to actual combat, were allowed under the MDT and VFA, viz:
Both the history and intent of the Mutual Defense Treaty and the VFA support the
conclusion that combat-related activities as opposed to combat itself such as the one
subject of the instant petition, are indeed authorized.
Hence, even if EDCA was borne of military necessity, it cannot be said to have strayed from
the intent of the VFA since EDCA's combat-related components are allowed under the
treaty.
Moreover, both the VFA and EDCA are silent on what these activities actually are. Both the
VFA and EDCA deal with the presence of U.S. forces within the Philippines, but make no
mention of being platforms for activity beyond Philippine territory. While it may be that,
as applied, military operations under either the VFA or EDCA would be carried out in the
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future the scope of judicial review does not cover potential breaches of discretion but only
actual occurrences or blatantly illegal provisions. Hence, we cannot invalidate EDCA on
the basis of the potentially abusive use of its provisions.
The fourth difference is that EDCA supposedly introduces a new concept not contemplated
in the VFA or the MDT: Agreed Locations, Contractors, Pre-positioning, and Operational
Control.
As previously mentioned, these points shall be addressed fully and individually in the latter
analysis of EDCA's provisions. However, it must already be clarified that the terms and
details used by an implementing agreement need not be found in the mother treaty. They
must be sourced from the authority derived from the treaty, but are not necessarily
expressed word-for-word in the mother treaty. This concern shall be further elucidated in
this Decision.
The fifth difference highlighted by the Dissenting Opinion is that the VFA does not have
provisions that may be construed as a restriction on or modification of obligations found
in existing statues, including the jurisdiction of courts, local autonomy, and taxation.
Implied in this argument is that EDCA contains such restrictions or modifications.249
This last argument cannot be accepted in view of the clear provisions of EDCA. Both the
VFA and EDCA ensure Philippine jurisdiction in all instances contemplated by both
agreements, with the exception of those outlined by the VFA in Articles III-VI. In the VFA,
taxes are clearly waived whereas in EDCA, taxes are assumed by the government as will be
discussed later on. This fact does not, therefore, produce a diminution of jurisdiction on
the part of the Philippines, but rather a recognition of sovereignty and the rights that attend
it, some of which may be waived as in the cases under Articles III-VI of the VFA.
Taking off from these concerns, the provisions of EDCA must be compared with those of
the MDT and the VFA, which are the two treaties from which EDCA allegedly draws its
validity.
"Authorized presence" under the VFA versus "authorized activities" under EDCA: (1) U.S.
personnel and (2) U.S. contractors
The OSG argues250 that EDCA merely details existing policies under the MDT and the
VFA. It explains that EDCA articulates the principle of defensive preparation embodied in
Article II of the MDT; and seeks to enhance the defensive, strategic, and technological
capabilities of both parties pursuant to the objective of the treaty to strengthen those
capabilities to prevent or resist a possible armed attack. Respondent also points out that
EDCA simply implements Article I of the VFA, which already allows the entry of U.S. troops
and personnel into the country. Respondent stresses this Court's recognition in Lim v.
Executive Secretary that U.S. troops and personnel are authorized to conduct activities that
promote the goal of maintaining and developing their defense capability.
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Petitioners contest251 the assertion that the provisions of EDCA merely implement the
MDT. According to them, the treaty does not specifically authorize the entry of U.S. troops
in the country in order to maintain and develop the individual and collective capacities of
both the Philippines and the U.S. to resist an armed attack. They emphasize that the treaty
was concluded at a time when there was as yet no specific constitutional prohibition on the
presence of foreign military forces in the country.
Petitioners also challenge the argument that EDCA simply implements the VFA. They
assert that the agreement covers only short-term or temporary visits of U.S. troops "from
time to time" for the specific purpose of combined military exercises with their Filipino
counterparts. They stress that, in contrast, U.S. troops are allowed under EDCA to perform
activities beyond combined military exercises, such as those enumerated in Articles 111(1)
and IV(4) thereof. Furthermore, there is some degree of permanence in the presence of U.S.
troops in the country, since the effectivity of EDCA is continuous until terminated. They
proceed to argue that while troops have a "rotational" presence, this scheme in fact fosters
their permanent presence.
a. Admission of U.S. military and civilian personnel into Philippine territory is already
allowed under the VFA
We shall first deal with the recognition under EDCA of the presence in the country of three
distinct classes of individuals who will be conducting different types of activities within the
Agreed Locations: (1) U.S. military personnel; (2) U.S. civilian personnel; and (3) U.S.
contractors. The agreement refers to them as follows:
"United States personnel" means United States military and civilian personnel temporarily
in the territory of the Philippines in connection with activities approved by the Philippines,
as those terms are defined in the VFA.252
"United States forces" means the entity comprising United States personnel and all
property, equipment, and materiel of the United States Armed Forces present in the
territory of the Philippines.253
"United States contractors" means companies and firms, and their employees, under
contract or subcontract to or on behalf of the United States Department of Defense. United
States contractors are not included as part of the definition of United States personnel in
this Agreement, including within the context of the VFA.254
United States forces may contract for any materiel, supplies, equipment, and services
(including construction) to be furnished or undertaken in the territory of the Philippines
without restriction as to choice of contractor, supplier, or person who provides such
materiel, supplies, equipment, or services. Such contracts shall be solicited, awarded, and
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administered in accordance with the laws and regulations of the United States.255
(Emphases Supplied)
A thorough evaluation of how EDCA is phrased clarities that the agreement does not deal
with the entry into the country of U.S. personnel and contractors per se. While Articles
I(l)(b)256 and II(4)257 speak of "the right to access and use" the Agreed Locations, their
wordings indicate the presumption that these groups have already been allowed entry into
Philippine territory, for which, unlike the VFA, EDCA has no specific provision. Instead,
Article II of the latter simply alludes to the VFA in describing U.S. personnel, a term defined
under Article I of the treaty as follows:
As used in this Agreement, "United States personnel" means United States military and
civilian personnel temporarily in the Philippines in connection with activities approved by
the Philippine Government. Within this definition:
1. The term "military personnel" refers to military members of the United States Army,
Navy, Marine Corps, Air Force, and Coast Guard.
2. The term "civilian personnel" refers to individuals who are neither nationals of nor
ordinarily resident in the Philippines and who are employed by the United States armed
forces or who are accompanying the United States armed forces, such as employees of the
American Red Cross and the United Services Organization.258
Article II of EDCA must then be read with Article III of the VFA, which provides for the
entry accommodations to be accorded to U.S. military and civilian personnel:
1. The Government of the Philippines shall facilitate the admission of United States
personnel and their departure from the Philippines in connection with activities covered
by this agreement.
2. United States military personnel shall be exempt from passport and visa regulations upon
entering and departing the Philippines.
3. The following documents only, which shall be required in respect of United States
military personnel who enter the Philippines; xx xx.
4. United States civilian personnel shall be exempt from visa requirements but shall
present, upon demand, valid passports upon entry and departure of the Philippines.
(Emphases Supplied)
By virtue of Articles I and III of the VFA, the Philippines already allows U.S. military and
civilian personnel to be "temporarily in the Philippines," so long as their presence is "in
connection with activities approved by the Philippine Government." The Philippines,
through Article III, even guarantees that it shall facilitate the admission of U.S. personnel
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into the country and grant exemptions from passport and visa regulations. The VFA does
not even limit their temporary presence to specific locations.
Based on the above provisions, the admission and presence of U.S. military and civilian
personnel in Philippine territory are already allowed under the VFA, the treaty supposedly
being implemented by EDCA. What EDCA has effectively done, in fact, is merely provide
the mechanism to identify the locations in which U.S. personnel may perform allowed
activities pursuant to the VFA. As the implementing agreement, it regulates and limits the
presence of U.S. personnel in the country.
b. EDCA does not provide the legal basis for admission of U.S. contractors into Philippine
territory; their entry must be sourced from extraneous Philippine statutes and regulations
for the admission of alien employees or business persons.
Of the three aforementioned classes of individuals who will be conducting certain activities
within the Agreed Locations, we note that only U.S. contractors are not explicitly
mentioned in the VFA. This does not mean, though, that the recognition of their presence
under EDCA is ipso facto an amendment of the treaty, and that there must be Senate
concurrence before they are allowed to enter the country.
Nowhere in EDCA are U.S. contractors guaranteed immediate admission into the
Philippines. Articles III and IV, in fact, merely grant them the right of access to, and the
authority to conduct certain activities within the Agreed Locations. Since Article II(3) of
EDCA specifically leaves out U.S. contractors from the coverage of the VFA, they shall not
be granted the same entry accommodations and privileges as those enjoyed by U.S. military
and civilian personnel under the VFA.
Consequently, it is neither mandatory nor obligatory on the part of the Philippines to admit
U.S. contractors into the country.259 We emphasize that the admission of aliens into
Philippine territory is "a matter of pure permission and simple tolerance which creates no
obligation on the part of the government to permit them to stay."260 Unlike U.S. personnel
who are accorded entry accommodations, U.S. contractors are subject to Philippine
immigration laws.261 The latter must comply with our visa and passport regulations262
and prove that they are not subject to exclusion under any provision of Philippine
immigration laws. The President may also deny them entry pursuant to his absolute and
unqualified power to prohibit or prevent the admission of aliens whose presence in the
country would be inimical to public interest.264
In the same vein, the President may exercise the plenary power to expel or deport U.S.
contractors as may be necessitated by national security, public safety, public health, public
morals, and national interest.266 They may also be deported if they are found to be illegal
or undesirable aliens pursuant to the Philippine Immigration Act267 and the Data Privacy
Act. In contrast, Article 111(5) of the VFA requires a request for removal from the Philippine
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government before a member of the U.S. personnel may be "dispos[ed] xx x outside of the
Philippines."
c. Authorized activities of U.S. military and civilian personnel within Philippine territory
are in furtherance of the MDT and the VFA
We begin our analysis by quoting the relevant sections of the MDT and the VFA that
pertain to the activities in which U.S. military and civilian personnel may engage:
MUTUAL DEFENSE TREATY
Article II
In order more effectively to achieve the objective of this Treaty, the Parties separately and
jointly by self-help and mutual aid will maintain and develop their individual and collective
capacity to resist armed attack.
Article III
The Parties, through their Foreign Ministers or their deputies, will consult together from
time to time regarding the implementation of this Treaty and whenever in the opinion of
either of them the territorial integrity, political independence or security of either of the
Parties is threatened by external armed attack in the Pacific.
VISITING FORCES AGREEMENT
Preamble
xxx
Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;
Noting that from time to time elements of the United States armed forces may visit the
Republic of the Philippines;
Considering that cooperation between the United States and the Republic of the
Philippines promotes their common security interests;
xxx
Article I - Definitions
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As used in this Agreement, "United States personnel" means United States military and
civilian personnel temporarily in the Philippines in connection with activities approved by
the Philippine Government. Within this definition: xx x
Article II - Respect for Law
It is the duty of United States personnel to respect the laws of the Republic of the
Philippines and to abstain from any activity inconsistent with the spirit of this agreement,
and, in particular, from any political activity in the Philippines. The Government of the
United States shall take all measures within its authority to ensure that this is done.
Article VII - Importation and Exportation
1. United States Government equipment, materials, supplies, and other property imported
into or acquired in the Philippines by or on behalf of the United States armed forces in
connection with activities to which this agreement applies, shall be free of all Philippine
duties, taxes and other similar charges. Title to such property shall remain with the United
States, which may remove such property from the Philippines at any time, free from export
duties, taxes, and other similar charges. x x x.
Article VIII - Movement of Vessels and Aircraft
1. Aircraft operated by or for the United States armed forces may enter the Philippines upon
approval of the Government of the Philippines in accordance with procedures stipulated in
implementing arrangements.
2. Vessels operated by or for the United States armed forces may enter the Philippines upon
approval of the Government of the Philippines. The movement of vessels shall be in
accordance with international custom and practice governing such vessels, and such agreed
implementing arrangements as necessary. x x x (Emphases Supplied)
Manifest in these provisions is the abundance of references to the creation of further
"implementing arrangements" including the identification of "activities [to be] approved
by the Philippine Government." To determine the parameters of these implementing
arrangements and activities, we referred to the content, purpose, and framework of the
MDT and the VFA.
By its very language, the MDT contemplates a situation in which both countries shall
engage in joint activities, so that they can maintain and develop their defense capabilities.
The wording itself evidently invites a reasonable construction that the joint activities shall
involve joint military trainings, maneuvers, and exercises. Both the interpretation269 and
the subsequent practice270 of the parties show that the MDT independently allows joint
military exercises in the country. Lim v. Executive Secretary271 and Nicolas v. Romulo272
recognized that Balikatan exercises, which are activities that seek to enhance and develop
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the strategic and technological capabilities of the parties to resist an armed attack, "fall
squarely under the provisions of the RP-US MDT."273 In Lim, the Court especially noted
that the Philippines and the U.S. continued to conduct joint military exercises even after
the expiration of the MBA and even before the conclusion of the VFA.274 These activities
presumably related to the Status of Forces Agreement, in which the parties agreed on the
status to be accorded to U.S. military and civilian personnel while conducting activities in
the Philippines in relation to the MDT.275
Further, it can be logically inferred from Article V of the MDT that these joint activities
may be conducted on Philippine or on U.S. soil. The article expressly provides that the term
armed attack includes "an armed attack on the metropolitan territory of either of the
Parties, or on the island territories under its jurisdiction in the Pacific or on its armed
forces, public vessels or aircraft in the Pacific." Surely, in maintaining and developing our
defense capabilities, an assessment or training will need to be performed, separately and
jointly by self-help and mutual aid, in the territories of the contracting parties. It is
reasonable to conclude that the assessment of defense capabilities would entail
understanding the terrain, wind flow patterns, and other environmental factors unique to
the Philippines.
It would also be reasonable to conclude that a simulation of how to respond to attacks in
vulnerable areas would be part of the training of the parties to maintain and develop their
capacity to resist an actual armed attack and to test and validate the defense plan of the
Philippines. It is likewise reasonable to imagine that part of the training would involve an
analysis of the effect of the weapons that may be used and how to be prepared for the
eventuality. This Court recognizes that all of this may require training in the area where an
armed attack might be directed at the Philippine territory.
The provisions of the MDT must then be read in conjunction with those of the VFA.
Article I of the VFA indicates that the presence of U.S. military and civilian personnel in
the Philippines is "in connection with activities approved by the Philippine Government."
While the treaty does not expressly enumerate or detail the nature of activities of U.S.
troops in the country, its Preamble makes explicit references to the reaffirmation of the
obligations of both countries under the MDT. These obligations include the strengthening
of international and regional security in the Pacific area and the promotion of common
security interests.
The Court has already settled in Lim v. Executive Secretary that the phrase "activities
approved by the Philippine Government" under Article I of the VFA was intended to be
ambiguous in order to afford the parties flexibility to adjust the details of the purpose of
the visit of U.S. personnel.276 In ruling that the Terms of Reference for the Balikatan
Exercises in 2002 fell within the context of the treaty, this Court explained:
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After studied reflection, it appeared farfetched that the ambiguity surrounding the
meaning of the word "activities" arose from accident. In our view, it was deliberately made
that way to give both parties a certain leeway in negotiation. In this manner, visiting US
forces may sojourn in Philippine territory for purposes other than military. As conceived,
the joint exercises may include training on new techniques of patrol and surveillance to
protect the nation's marine resources, sea search-and-rescue operations to assist vessels in
distress, disaster relief operations, civic action projects such as the building of school
houses, medical and humanitarian missions, and the like.
Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only
logical to assume that "Balikatan 02-1," a "mutual anti-terrorism advising, assisting and
training exercise," falls under the umbrella of sanctioned or allowable activities in the
context of the agreement. Both the history and intent of the Mutual Defense Treaty and
the VFA support the conclusion that combat-related activities - as opposed to combat
itself- such as the one subject of the instant petition, are indeed authorized. (Emphases
Supplied)
The joint report of the Senate committees on foreign relations and on national defense and
security further explains the wide range and variety of activities contemplated in the VFA,
and how these activities shall be identified:277
These joint exercises envisioned in the VFA are not limited to combat-related activities;
they have a wide range and variety. They include exercises that will reinforce the AFP's
ability to acquire new techniques of patrol and surveillance to protect the country's
maritime resources; sea-search and rescue operations to assist ships in distress; and
disaster-relief operations to aid the civilian victims of natural calamities, such as
earthquakes, typhoons and tidal waves.
xxxx
Joint activities under the VFA will include combat maneuvers; training in aircraft
maintenance and equipment repair; civic-action projects; and consultations and meetings
of the Philippine-U.S. Mutual Defense Board. It is at the level of the Mutual Defense Boardwhich is headed jointly by the Chief of Staff of the AFP and the Commander in Chief of the
U.S. Pacific Command-that the VFA exercises are planned. Final approval of any activity
involving U.S. forces is, however, invariably given by the Philippine Government.
xxxx
Siazon clarified that it is not the VFA by itself that determines what activities will be
conducted between the armed forces of the U.S. and the Philippines. The VFA regulates
and provides the legal framework for the presence, conduct and legal status of U.S.
personnel while they are in the country for visits, joint exercises and other related activities.
(Emphases Supplied)
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What can be gleaned from the provisions of the VFA, the joint report of the Senate
committees on foreign relations and on national defense and security, and the ruling of this
Court in Lim is that the "activities" referred to in the treaty are meant to be specified and
identified infurther agreements. EDCA is one such agreement.
EDCA seeks to be an instrument that enumerates the Philippine-approved activities of U.S.
personnel referred to in the VFA. EDCA allows U.S. military and civilian personnel to
perform "activities approved by the Philippines, as those terms are defined in the VFA"278
and clarifies that these activities include those conducted within the Agreed Locations:
1. Security cooperation exercises; joint and combined training activities; humanitarian
assistance and disaster relief activities; and such other activities as may be agreed upon by
the Parties279
2. Training; transit; support and related activities; refueling of aircraft; bunkering of vessels;
temporary maintenance of vehicles, vessels, and aircraft; temporary accommodation of
personnel; communications; prepositioning of equipment, supplies, and materiel;
deployment of forces and materiel; and such other activities as the Parties may agree280
3. Exercise of operational control over the Agreed Locations for construction activities and
other types of activity, including alterations and improvements thereof281
4. Exercise of all rights and authorities within the Agreed Locations that are necessary for
their operational control or defense, including the adoption of apfropriate measures to
protect U.S. forces and contractors282
5. Use of water, electricity, and other public utilities283
6. Operation of their own telecommunication systems, including the utilization of such
means and services as are required to ensure the full ability to operate telecommunication
systems, as well as the use of the necessary radio spectrum allocated for this purpose284
According to Article I of EDCA, one of the purposes of these activities is to maintain and
develop, jointly and by mutual aid, the individual and collective capacities of both countries
to resist an armed attack. It further states that the activities are in furtherance of the MDT
and within the context of the VFA.
We note that these planned activities are very similar to those under the Terms of
Reference285 mentioned in Lim. Both EDCA and the Terms of Reference authorize the U.S.
to perform the following: (a) participate in training exercises; (b) retain command over
their forces; (c) establish temporary structures in the country; (d) share in the use of their
respective resources, equipment and other assets; and (e) exercise their right to selfdefense. We quote the relevant portion of the Terms and Conditions as follows:286
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I. POLICY LEVEL
xxxx
No permanent US basing and support facilities shall be established. Temporary structures
such as those for troop billeting, classroom instruction and messing may be set up for use
by RP and US Forces during the Exercise.
The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under the
authority of the Chief of Staff, AFP. In no instance will US Forces operate independently
during field training exercises (FTX). AFP and US Unit Commanders will retain command
over their respective forces under the overall authority of the Exercise Co-Directors. RP and
US participants shall comply with operational instructions of the AFP during the FTX.
The exercise shall be conducted and completed within a period of not more than six
months, with the projected participation of 660 US personnel and 3,800 RP Forces. The
Chief of Staff, AFP shall direct the Exercise Co-Directors to wind up and terminate the
Exercise and other activities within the six month Exercise period.
The Exercise is a mutual counter-terrorism advising, assisting and training Exercise relative
to Philippine efforts against the ASG, and will be conducted on the Island of Basilan.
Further advising, assisting and training exercises shall be conducted in Malagutay and the
Zamboanga area. Related activities in Cebu will be for support of the Exercise.
xx xx.
US exercise participants shall not engage in combat, without prejudice to their right of selfdefense.
These terms of Reference are for purposes of this Exercise only and do not create additional
legal obligations between the US Government and the Republic of the Philippines.
II. EXERCISE LEVEL
1. TRAINING
a. The Exercise shall involve the conduct of mutual military assisting, advising and training
of RP and US Forces with the primary objective of enhancing the operational capabilities
of both forces to combat terrorism.
b. At no time shall US Forces operate independently within RP territory.
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c. Flight plans of all aircraft involved in the exercise will comply with the local air traffic
regulations.
2. ADMINISTRATION & LOGISTICS
xxxx
a. RP and US participating forces may share, in accordance with their respective laws and
regulations, in the use of their resources, equipment and other assets. They will use their
respective logistics channels. x x x. (Emphases Supplied)
After a thorough examination of the content, purpose, and framework of the MDT and the
VFA, we find that EDCA has remained within the parameters set in these two treaties. Just
like the Terms of Reference mentioned in Lim, mere adjustments in detail to implement
the MDT and the VFA can be in the form of executive agreements.
Petitioners assert287 that the duration of the activities mentioned in EDCA is no longer
consistent with the temporary nature of the visits as contemplated in the VFA. They point
out that Article XII(4) of EDCA has an initial term of 10 years, a term automatically renewed
unless the Philippines or the U.S. terminates the agreement. According to petitioners, such
length of time already has a badge of permanency.
In connection with this, Justice Teresita J. Leonardo-De Castro likewise argues in her
Concurring and Dissenting Opinion that the VFA contemplated mere temporary visits
from U.S. forces, whereas EDCA allows an unlimited period for U.S. forces to stay in the
Philippines.288
However, the provisions of EDCA directly contradict this argument by limiting itself to 10
years of effectivity. Although this term is automatically renewed, the process for
terminating the agreement is unilateral and the right to do so automatically accrues at the
end of the 10 year period. Clearly, this method does not create a permanent obligation.
Drawing on the reasoning in Lim, we also believe that it could not have been by chance
that the VFA does not include a maximum time limit with respect to the presence of U.S.
personnel in the country. We construe this lack of specificity as a deliberate effort on the
part of the Philippine and the U.S. governments to leave out this aspect and reserve it for
the "adjustment in detail" stage of the implementation of the treaty. We interpret the
subsequent, unconditional concurrence of the Senate in the entire text of the VFA as an
implicit grant to the President of a margin of appreciation in determining the duration of
the "temporary" presence of U.S. personnel in the country.
Justice Brion's dissent argues that the presence of U.S. forces under EDCA is "more
permanent" in nature.289 However, this argument has not taken root by virtue of a simple
glance at its provisions on the effectivity period. EDCA does not grant permanent bases,
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but rather temporary rotational access to facilities for efficiency. As Professor Aileen S.P.
Baviera notes:
The new EDCA would grant American troops, ships and planes rotational access to facilities
of the Armed Forces of the Philippines – but not permanent bases which are prohibited
under the Philippine Constitution - with the result of reducing response time should an
external threat from a common adversary crystallize.290
EDCA is far from being permanent in nature compared to the practice of states as shown
in other defense cooperation agreements. For example, Article XIV(l) of the U.S.-Romania
defense agreement provides the following:
This Agreement is concluded for an indefinite period and shall enter into force in
accordance with the internal laws of each Party x x x. (emphasis supplied)
Likewise, Article 36(2) of the US-Poland Status of Forces Agreement reads:
This Agreement has been concluded for an indefinite period of time. It may be terminated
by written notification by either Party and in that event it terminates 2 years after the
receipt of the notification. (emphasis supplied)
Section VIII of US.-Denmark Mutual Support Agreement similarly provides:
8.1 This Agreement, which consists of a Preamble, SECTIONs I-VIII, and Annexes A and B,
shall become effective on the date of the last signature affixed below and shall remain in
force until terminated by the Parties, provided that it may be terminated by either Party
upon 180 days written notice of its intention to do so to the other Party. (emphasis supplied)
On the other hand, Article XXI(3) of the US.-Australia Force Posture Agreement provides
a longer initial term:
3. This Agreement shall have an initial term of 25 years and thereafter shall continue in
force, but may be terminated by either Party at any time upon one year's written notice to
the other Party through diplomatic channels. (emphasis supplied)
The phrasing in EDCA is similar to that in the U.S.-Australia treaty but with a term less
than half of that is provided in the latter agreement. This means that EDCA merely follows
the practice of other states in not specifying a non-extendible maximum term. This
practice, however, does not automatically grant a badge of permanency to its terms. Article
XII(4) of EDCA provides very clearly, in fact, that its effectivity is for an initial term of 10
years, which is far shorter than the terms of effectivity between the U.S. and other states.
It is simply illogical to conclude that the initial, extendible term of 10 years somehow gives
EDCA provisions a permanent character.
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The reasoning behind this interpretation is rooted in the constitutional role of the
President who, as Commander-in-Chief of our armed forces, is the principal strategist of
the nation and, as such, duty-bound to defend our national sovereignty and territorial
integrity;291 who, as chief architect of our foreign relations, is the head policymaker tasked
to assess, ensure, and protect our national security and interests;292 who holds the most
comprehensive and most confidential information about foreign countries293 that may
affect how we conduct our external affairs; and who has unrestricted access to highly
classified military intelligence data294 that may threaten the life of the nation. Thus, if after
a geopolitical prognosis of situations affecting the country, a belief is engendered that a
much longer period of military training is needed, the President must be given ample
discretion to adopt necessary measures including the flexibility to set an extended
timetable.
Due to the sensitivity and often strict confidentiality of these concerns, we acknowledge
that the President may not always be able to candidly and openly discuss the complete
situation being faced by the nation. The Chief Executive's hands must not be unduly tied,
especially if the situation calls for crafting programs and setting timelines for approved
activities. These activities may be necessary for maintaining and developing our capacity
to resist an armed attack, ensuring our national sovereignty and territorial integrity, and
securing our national interests. If the Senate decides that the President is in the best
position to define in operational terms the meaning of temporary in relation to the visits,
considered individually or in their totality, the Court must respect that policy decision. If
the Senate feels that there is no need to set a time limit to these visits, neither should we.
Evidently, the fact that the VFA does not provide specificity in regard to the extent of the
"temporary" nature of the visits of U.S. personnel does not suggest that the duration to
which the President may agree is unlimited. Instead, the boundaries of the meaning of the
term temporary in Article I of the treaty must be measured depending on the purpose of
each visit or activity.295 That purpose must be analyzed on a case-by-case basis depending
on the factual circumstances surrounding the conclusion of the implementing agreement.
While the validity of the President's actions will be judged under less stringent standards,
the power of this Court to determine whether there was grave abuse of discretion remains
unimpaired.
d. Authorized activities performed by US. contractors within Philippine territory - who
were legitimately permitted to enter the country independent of EDCA - are subject to
relevant Philippine statutes and regulations and must be consistent with the MDT and the
VFA
Petitioners also raise296 concerns about the U.S. government's purported practice of hiring
private security contractors in other countries. They claim that these contractors - one of
which has already been operating in Mindanao since 2004 - have been implicated in
incidents or scandals in other parts of the globe involving rendition, torture and other
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human rights violations. They also assert that these contractors employ paramilitary forces
in other countries where they are operating.
Under Articles III and IV of EDCA, U.S. contractors are authorized to perform only the
following activities:
1. Training; transit; support and related activities; refueling of aircraft; bunkering of vessels;
temporary maintenance of vehicles, vessels, and aircraft; temporary accommodation of
personnel; communications; prepositioning of equipment, supplies, and materiel;
deployment of forces and materiel; and such other activities as the Parties may agree297
2. Prepositioning and storage of defense equipment, supplies, and materiel, including
delivery, management, inspection, use, maintenance, and removal of such equipment,
supplies and materiel298
3. Carrying out of matters in accordance with, and to the extent permissible under, U.S.
laws, regulations, and policies299
EDCA requires that all activities within Philippine territory be in accordance with
Philippine law. This means that certain privileges denied to aliens are likewise denied to
foreign military contractors. Relevantly, providing security300 and carrying, owning, and
possessing firearms301 are illegal for foreign civilians.
The laws in place already address issues regarding the regulation of contractors. In the 2015
Foreign Investment Negative list,302 the Executive Department has already identified
corporations that have equity restrictions in Philippine jurisdiction. Of note is No. 5 on the
list - private security agencies that cannot have any foreign equity by virtue of Section 4 of
Republic Act No. 5487;303 and No. 15, which regulates contracts for the construction of
defense-related structures based on Commonwealth Act No. 541.
Hence, any other entity brought into the Philippines by virtue of EDCA must subscribe to
corporate and civil requirements imposed by the law, depending on the entity's corporate
structure and the nature of its business.
That Philippine laws extraneous to EDCA shall govern the regulation of the activities of
U.S. contractors has been clear even to some of the present members of the Senate.
For instance, in 2012, a U.S. Navy contractor, the Glenn Marine, was accused of spilling fuel
in the waters off Manila Bay.304 The Senate Committee on Foreign Relations and the
Senate Committee on Environment and Natural Resources chairperson claimed
environmental and procedural violations by the contractor.305 The U.S. Navy investigated
the contractor and promised stricter guidelines to be imposed upon its contractors.306 The
statement attributed to Commander Ron Steiner of the public affairs office of the U.S.
Navy's 7th Fleet - that U.S. Navy contractors are bound by Philippine laws - is of particular
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relevance. The statement acknowledges not just the presence of the contractors, but also
the U.S. position that these contractors are bound by the local laws of their host state. This
stance was echoed by other U.S. Navy representatives.307
This incident simply shows that the Senate was well aware of the presence of U.S.
contractors for the purpose of fulfilling the terms of the VFA. That they are bound by
Philippine law is clear to all, even to the U.S.
As applied to EDCA, even when U.S. contractors are granted access to the Agreed
Locations, all their activities must be consistent with Philippine laws and regulations and
pursuant to the MDT and the VFA.
While we recognize the concerns of petitioners, they do not give the Court enough
justification to strike down EDCA. In Lim v. Executive Secretary, we have already explained
that we cannot take judicial notice of claims aired in news reports, "not because of any issue
as to their truth, accuracy, or impartiality, but for the simple reason that facts must be
established in accordance with the rules of evidence."308 What is more, we cannot move
one step ahead and speculate that the alleged illegal activities of these contractors in other
countries would take place in the Philippines with certainty. As can be seen from the above
discussion, making sure that U.S. contractors comply with Philippine laws is a function of
law enforcement. EDCA does not stand in the way of law enforcement.
Nevertheless, we emphasize that U.S. contractors are explicitly excluded from the coverage
of the VFA. As visiting aliens, their entry, presence, and activities are subject to all laws and
treaties applicable within the Philippine territory. They may be refused entry or expelled
from the country if they engage in illegal or undesirable activities. There is nothing that
prevents them from being detained in the country or being subject to the jurisdiction of
our courts. Our penal laws,309 labor laws,310 and immigrations laws311 apply to them and
therefore limit their activities here. Until and unless there is another law or treaty that
specifically deals with their entry and activities, their presence in the country is subject to
unqualified Philippine jurisdiction.
EDCA does not allow the presence of U.S.-owned or -controlled military facilities and bases
in the Philippines
Petitioners Saguisag et al. claim that EDCA permits the establishment of U.S. military bases
through the "euphemistically" termed "Agreed Locations. "312 Alluding to the definition of
this term in Article II(4) of EDCA, they point out that these locations are actually military
bases, as the definition refers to facilities and areas to which U.S. military forces have access
for a variety of purposes. Petitioners claim that there are several badges of exclusivity in the
use of the Agreed Locations by U.S. forces. First, Article V(2) of EDCA alludes to a "return"
of these areas once they are no longer needed by U.S. forces, indicating that there would
be some transfer of use. Second, Article IV(4) ofEDCA talks about American forces'
unimpeded access to the Agreed Locations for all matters relating to the prepositioning
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and storage of U.S. military equipment, supplies, and materiel. Third, Article VII of EDCA
authorizes U.S. forces to use public utilities and to operate their own telecommunications
system.
a. Preliminary point on badges of exclusivity
As a preliminary observation, petitioners have cherry-picked provisions of EDCA by
presenting so-called "badges of exclusivity," despite the presence of contrary provisions
within the text of the agreement itself.
First, they clarify the word "return" in Article V(2) of EDCA. However, the use of the word
"return" is within the context of a lengthy provision. The provision as a whole reads as
follows:
The United States shall return to the Philippines any Agreed Locations, or any portion
thereof, including non-relocatable structures and assemblies constructed, modified, or
improved by the United States, once no longer required by United States forces for
activities under this Agreement. The Parties or the Designated Authorities shall consult
regarding the terms of return of any Agreed Locations, including possible compensation
for improvements or construction.
The context of use is "required by United States forces for activities under this Agreement."
Therefore, the return of an Agreed Location would be within the parameters of an activity
that the Mutual Defense Board (MDB) and the Security Engagement Board (SEB) would
authorize. Thus, possession by the U.S. prior to its return of the Agreed Location would be
based on the authority given to it by a joint body co-chaired by the "AFP Chief of Staff and
Commander, U.S. PACOM with representatives from the Philippines' Department of
National Defense and Department of Foreign Affairs sitting as members."313 The terms
shall be negotiated by both the Philippines and the U.S., or through their Designated
Authorities. This provision, seen as a whole, contradicts petitioners' interpretation of the
return as a "badge of exclusivity." In fact, it shows the cooperation and partnership aspect
of EDCA in full bloom.
Second, the term "unimpeded access" must likewise be viewed from a contextual
perspective. Article IV(4) states that U.S. forces and U.S. contractors shall have "unimpeded
access to Agreed Locations for all matters relating to the prepositioning and storage of
defense equipment, supplies, and materiel, including delivery, management, inspection,
use, maintenance, and removal of such equipment, supplies and materiel."
At the beginning of Article IV, EDCA states that the Philippines gives the U.S. the authority
to bring in these equipment, supplies, and materiel through the MDB and SEB security
mechanism. These items are owned by the U.S.,314 are exclusively for the use of the U.S.315
and, after going through the joint consent mechanisms of the MDB and the SEB, are within
the control of the U.S.316 More importantly, before these items are considered
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prepositioned, they must have gone through the process of prior authorization by the MDB
and the SEB and given proper notification to the AFP.317
Therefore, this "unimpeded access" to the Agreed Locations is a necessary adjunct to the
ownership, use, and control of the U.S. over its own equipment, supplies, and materiel and
must have first been allowed by the joint mechanisms in play between the two states since
the time of the MDT and the VFA. It is not the use of the Agreed Locations that is exclusive
per se; it is mere access to items in order to exercise the rights of ownership granted by
virtue of the Philippine Civil Code.318
As for the view that EDCA authorizes U.S. forces to use public utilities and to operate their
own telecommunications system, it will be met and answered in part D, infra.
Petitioners also point out319 that EDCA is strongly reminiscent of and in fact bears a oneto-one correspondence with the provisions of the 1947 MBA. They assert that both
agreements (a) allow similar activities within the area; (b) provide for the same "species of
ownership" over facilities; and (c) grant operational control over the entire area. Finally,
they argue320 that EDCA is in fact an implementation of the new defense policy of the U.S.
According to them, this policy was not what was originally intended either by the MDT or
by the VFA.
On these points, the Court is not persuaded.
The similar activities cited by petitioners321 simply show that under the MBA, the U.S. had
the right to construct, operate, maintain, utilize, occupy, garrison, and control the bases.
The so-called parallel provisions of EDCA allow only operational control over the Agreed
Locations specifically for construction activities. They do not allow the overarching power
to operate, maintain, utilize, occupy, garrison, and control a base with full discretion. EDCA
in fact limits the rights of the U.S. in respect of every activity, including construction, by
giving the MDB and the SEB the power to determine the details of all activities such as, but
not limited to, operation, maintenance, utility, occupancy, garrisoning, and control.322
The "species of ownership" on the other hand, is distinguished by the nature of the
property. For immovable property constructed or developed by the U.S., EDCA expresses
that ownership will automatically be vested to the Philippines.323 On the other hand, for
movable properties brought into the Philippines by the U.S., EDCA provides that
ownership is retained by the latter. In contrast, the MBA dictates that the U.S. retains
ownership over immovable and movable properties.
To our mind, both EDCA and the MBA simply incorporate what is already the law of the
land in the Philippines. The Civil Code's provisions on ownership, as applied, grant the
owner of a movable property full rights over that property, even if located in another
person's property.324
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The parallelism, however, ends when the situation involves facilities that can be considered
immovable. Under the MBA, the U.S. retains ownership if it paid for the facility.325 Under
EDCA, an immovable is owned by the Philippines, even if built completely on the back of
U.S. funding.326 This is consistent with the constitutional prohibition on foreign land
ownership.327
Despite the apparent similarity, the ownership of property is but a part of a larger whole
that must be considered before the constitutional restriction is violated. Thus, petitioners'
points on operational control will be given more attention in the discussion below. The
arguments on policy are, however, outside the scope of judicial review and will not be
discussed
Moreover, a direct comparison of the MBA and EDCA will result in several important
distinctions that would allay suspicion that EDCA is but a disguised version of the MBA.
b. There are substantial matters that the US. cannot do under EDCA, but which it was
authorized to do under the 1947 MBA
The Philippine experience with U.S. military bases under the 1947 MBA is simply not
possible under EDCA for a number of important reasons.
First, in the 1947 MBA, the U.S. retained all rights of jurisdiction in and over Philippine
territory occupied by American bases. In contrast, the U.S. under EDCA does not enjoy any
such right over any part of the Philippines in which its forces or equipment may be found.
Below is a comparative table between the old treaty and EDCA:
1947 MBA/ 1946 Treaty of General Relations
1947 MBA, Art. I(1):
EDCA
The Government of the Republic of the Philippines (hereinafter referred to as the
Philippines) grants to the Government of the United States of America (hereinafter referred
to as the United States) the right to retain the use of the bases in the Philippines listed in
Annex A attached hereto.
1947 MBA, Art. XVII(2):
All buildings and structures which are erected by the United States in the bases shall be the
property of the United States and may be removed by it before the expiration of this
Agreement or the earlier relinquishment of the base on which the structures are situated.
There shall be no obligation on the part of the Philippines or of the United States to rebuild
or repair any destruction or damage inflicted from any cause whatsoever on any of the said
buildings or structures owned or used by the United States in the bases. x x x x.
1946 Treaty of Gen. Relations, Art. I:
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The United States of America agrees to withdraw and surrender, and does hereby withdraw
and surrender, all rights of possession, supervision, jurisdiction, control or sovereignty
existing and exercised by the United States of America in and over the territory and the
people of the Philippine Islands, except the use of such bases, necessary appurtenances to
such bases, and the rights incident thereto, as the United States of America, by agreement
with the Republic of the Philippines may deem necessary to retain for the mutual
protection of the Republic of the Philippines and of the United States of America. x x x.
EDCA, preamble:
Affirming that the Parties share an understanding for the United States not to establish a
permanent military presence or base in the territory of the Philippines;
xxxx
Recognizing that all United States access to and use of facilities and areas will be at the
invitation of the Philippines and with full respect for the Philippine Constitution and
Philippine laws;
xxxx
EDCA, Art. II(4):
"Agreed Locations" means facilities and areas that are provided by the Government of the
Philippines through the AFP and that United States forces, United States contractors, and
others as mutually agreed, shall have the right to access and use pursuant to this
Agreement. Such Agreed Locations may be listed in an annex to be appended to this
Agreement, and may be further described in implementing arrangements.
EDCA, Art. V:
1. The Philippines shall retain ownership of and title to Agreed Locations.
xxxx
4. All buildings, non-relocatable structures, and assemblies affixed to the land in the Agreed
Locations, including ones altered or improved by United States forces, remain the property
of the Philippines. Permanent buildings constructed by United States forces become the
property of the Philippines, once constructed, but shall be used by United States forces
until no longer required by United States forces.
Second, in the bases agreement, the U.S. and the Philippines were visibly not on equal
footing when it came to deciding whether to expand or to increase the number of bases, as
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the Philippines may be compelled to negotiate with the U.S. the moment the latter
requested an expansion of the existing bases or to acquire additional bases. In EDCA, U.S.
access is purely at the invitation of the Philippines.
1947 MBA/ 1946 Treaty of General Relations
1947 MBA, Art.I(3):
EDCA
The Philippines agree to enter into negotiations with the United States at the latter's
request, to permit the United States to expand such bases, to exchange such bases for other
bases, to acquire additional bases, or relinquish rights to bases, as any of such exigencies
may be required by military necessity.
1946 Treaty of Gen. Relations, Art. I:
The United States of America agrees to withdraw and surrender, and does hereby withdraw
and surrender, all rights of possession, supervision, jurisdiction, control or sovereignty
existing and exercised by the United States of America in and over the territory and the
people of the Philippine Islands, except the use of such bases, necessary appurtenances to
such bases, and the rights incident thereto, as the United States of America, by agreement
with the Republic of the Philippines may deem necessary to retain for the mutual
protection of the Republic of the Philippines and of the United States of America. x x x.
EDCA, preamble:
Recognizing that all United States access to and use of facilities and areas will be at the
invitation of the Philippines and with full respect for the Philippine Constitution and
Philippine laws;
xxxx
EDCA. Art. II(4):
"Agreed Locations" means facilities and areas that are provided by the Government of the
Philippines through the AFP and that United States forces, United States contractors, and
others as mutually agreed, shall have the right to access and use pursuant to this
Agreement. Such Agreed Locations may be listed in an annex to be appended to this
Agreement, and may be further described in implementing arrangements.
Third, in EDCA, the Philippines is- guaranteed access over the entire area of the Agreed
Locations. On the other hand, given that the U.S. had complete control over its military
bases under the 1947 MBA, the treaty did not provide for any express recognition of the
right of access of Philippine authorities. Without that provision and in light of the retention
of U.S. sovereignty over the old military bases, the U.S. could effectively prevent Philippine
authorities from entering those bases.
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1947 MBA
EDCA
No equivalent provision.
EDCA, Art. III(5):
The Philippine Designated Authority and its authorized representative shall have access to
the entire area of the Agreed Locations. Such access shall be provided promptly consistent
with operational safety and security requirements in accordance with agreed procedures
developed by the Parties.
Fourth, in the bases agreement, the U.S. retained the right, power, and authority over the
establishment, use, operation, defense, and control of military bases, including the limits
of territorial waters and air space adjacent to or in the vicinity of those bases. The only
standard used in determining the extent of its control was military necessity. On the other
hand, there is no such grant of power or authority under EDCA. It merely allows the U.S.
to exercise operational control over the construction of Philippine-owned structures and
facilities:
1947 MBA
EDCA
1947 MBA, Art.I(2):
The Philippines agrees to permit the United States, upon notice to the Philippines, to use
such of those bases listed in Annex B as the United States determines to be required by
military necessity.
1947 MBA, Art. III(1):
It is mutually agreed that the United States shall have the rights, power and authority
within the bases which are necessary for the establishment, use, operation and defense
thereof or appropriate for the control thereof and all the rights, power and authority within
the limits of territorial waters and air space adjacent to, or in the vicinity of, the bases which
are necessary to provide access to them, or appropriate for their control.
EDCA, Art. III(4):
The Philippines hereby grants to the United States, through bilateral security mechanisms,
such as the MDB and SEB, operational control of Agreed Locations for construction
activities and authority to undertake such activities on, and make alterations and
improvements to, Agreed Locations. United States forces shall consult on issues regarding
such construction, alterations, and improvements based on the Parties' shared intent that
the technical requirements and construction standards of any such projects undertaken by
or on behalf of United States forces should be consistent with the requirements and
standards of both Parties.
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Fifth, the U.S. under the bases agreement was given the authority to use Philippine territory
for additional staging areas, bombing and gunnery ranges. No such right is given under
EDCA, as seen below:
1947 MBA
EDCA
1947 MBA, Art. VI:
The United States shall, subject to previous agreement with the Philippines, have the right
to use land and coastal sea areas of appropriate size and location for periodic maneuvers,
for additional staging areas, bombing and gunnery ranges, and for such intermediate
airfields as may be required for safe and efficient air operations. Operations in such areas
shall be carried on with due regard and safeguards for the public safety.
1947 MBA, Art.I(2):
The Philippines agrees to permit the United States, upon notice to the Philippines, to use
such of those bases listed in Annex B as the United States determines to be required by
military necessity.
EDCA, Art. III(1):
With consideration of the views of the Parties, the Philippines hereby authorizes and agrees
that United States forces, United States contractors, and vehicles, vessels, and aircraft
operated by or for United States forces may conduct the following activities with respect to
Agreed Locations: training; transit; support and related activities; refueling of aircraft;
bunkering of vessels; temporary maintenance of vehicles, vessels, and aircraft; temporary
accommodation of personnel; communications; prepositioning of equipment, supplies,
and materiel; deploying forces and materiel; and such other activities as the Parties may
agree.
Sixth, under the MBA, the U.S. was given the right, power, and authority to control and
prohibit the movement and operation of all types of vehicles within the vicinity of the
bases. The U.S. does not have any right, power, or authority to do so under EDCA.
1947 MBA
EDCA
1947 MBA, Art. 111(2)(c)
Such rights, power and authority shall include, inter alia, the right, power and authority: x
x x x to control (including the right to prohibit) in so far as may be required for the efficient
operation and safety of the bases, and within the limits of military necessity, anchorages,
moorings, landings, takeoffs, movements and operation of ships and water-borne craft,
aircraft and other vehicles on water, in the air or on land comprising
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No equivalent provision.
Seventh, under EDCA, the U.S. is merely given temporary access to land and facilities
(including roads, ports, and airfields). On the other hand, the old treaty gave the U.S. the
right to improve and deepen the harbors, channels, entrances, and anchorages; and to
construct or maintain necessary roads and bridges that would afford it access to its military
bases.
1947 MBA
EDCA
1947 MBA, Art. III(2)(b):
Such rights, power and authority shall include, inter alia, the right, power and authority: x
x x x to improve and deepen the harbors, channels, entrances and anchorages, and to
construct or maintain necessary roads and bridges affording access to the bases.
EDCA, Art. III(2):
When requested, the Designated Authority of the Philippines shall assist in facilitating
transit or temporary access by United States forces to public land and facilities (including
roads, ports, and airfields), including those owned or controlled by local governments, and
to other land and facilities (including roads, ports, and airfields).
Eighth, in the 1947 MBA, the U.S. was granted the automatic right to use any and all public
utilities, services and facilities, airfields, ports, harbors, roads, highways, railroads, bridges,
viaducts, canals, lakes, rivers, and streams in the Philippines in the same manner that
Philippine military forces enjoyed that right. No such arrangement appears in EDCA. In
fact, it merely extends to U.S. forces temporary access to public land and facilities when
requested:
1947 MBA
EDCA
1947 MBA, Art. VII:
It is mutually agreed that the United States may employ and use for United States military
forces any and all public utilities, other services and facilities, airfields, ports, harbors,
roads, highways, railroads, bridges, viaducts, canals, lakes, rivers and streams in the
Philippines under conditions no less favorable than those that may be applicable from time
to time to the military forces of the Philippines.
EDCA, Art. III(2):
When requested, the Designated Authority of the Philippines shall assist in facilitating
transit or temporary access by United States forces to public land and facilities (including
roads, ports, and airfields), including those owned or controlled by local governments, and
to other land and facilities (including roads, ports, and airfields).
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Ninth, under EDCA, the U.S. no longer has the right, power, and authority to construct,
install, maintain, and employ any type of facility, weapon, substance, device, vessel or
vehicle, or system unlike in the old treaty. EDCA merely grants the U.S., through bilateral
security mechanisms, the authority to undertake construction, alteration, or improvements
on the Philippine-owned Agreed Locations.
1947 MBA
EDCA
1947 MBA, Art. III(2)(e):
Such rights, power and authority shall include, inter alia, the right, power and authority: x
x x x to construct, install, maintain, and employ on any base any type of facilities, weapons,
substance, device, vessel or vehicle on or under the ground, in the air or on or under the
water that may be requisite or appropriate, including meteorological systems, aerial and
water navigation lights, radio and radar apparatus and electronic devices, of any desired
power, type of emission and frequency.
EDCA, Art. III(4):
The Philippines hereby grants to the United States, through bilateral security mechanisms,
such as the MDB and SEB, operational control of Agreed Locations for construction
activities and authority to undertake such activities on, and make alterations and
improvements to, Agreed Locations. United States forces shall consult on issues regarding
such construction, alterations, and improvements based on the Parties' shared intent that
the technical requirements and construction standards of any such projects undertaken by
or on behalf of United States forces should be consistent with the requirements and
standards of both Parties.
Tenth, EDCA does not allow the U.S. to acquire, by condemnation or expropriation
proceedings, real property belonging to any private person. The old military bases
agreement gave this right to the U.S. as seen below:
1947 MBA
EDCA
1947 MBA, Art. XXII(l):
Whenever it is necessary to acquire by
condemnation or expropriation proceedings real property belonging to any private
persons, associations or corporations located in bases named in Annex A and Annex B in
order to carry out the purposes of this Agreement, the Philippines will institute and
prosecute such condemnation or expropriation proceedings in accordance with the laws of
the Philippines. The United States agrees to reimburse the Philippines for all the reasonable
expenses, damages and costs therebv incurred, including the value of the property as
determined by the Court. In addition, subject to the mutual agreement of the two
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Governments, the United States will reimburse the Philippines for the reasonable costs of
transportation and removal of any occupants displaced or ejected by reason of the
condemnation or expropriation.
No equivalent provision.
Eleventh, EDCA does not allow the U.S. to unilaterally bring into the country nonPhilippine nationals who are under its employ, together with their families, in connection
with the construction, maintenance, or operation of the bases. EDCA strictly adheres to the
limits under the VFA.
1947 MBA
EDCA
1947 MBA, Art. XI(l):
It is mutually agreed that the United States shall have the right to bring into the Philippines
members of the United States military forces and the United States nationals employed by
or under a contract with the United States together with their families, and technical
personnel of other nationalities (not being persons excluded by the laws of the Philippines)
in connection with the construction, maintenance, or operation of the bases. The United
States shall make suitable arrangements so that such persons may be readily identified and
their status established when necessary by the Philippine authorities. Such persons, other
than members of the United States armed forces in uniform, shall present their travel
documents to the appropriate Philippine authorities for visas, it being understood that no
objection will be made to their travel to the Philippines as non-immigrants.
EDCA, Art. II:
1. "United States personnel" means United States military and civilian personnel
temporarily in the territory of the Philippines in connection with activities approved by the
Philippines, as those terms are defined in the VFA.
x xx x
3. "United States contractors" means companies and firms, and their employees, under
contract or subcontract to or on behalf of the United States Department of Defense. United
States contractors are not included as part of the definition of United States personnel in
this Agreement, including within the context of the VFA.
Twelfth, EDCA does not allow the U.S. to exercise jurisdiction over any offense committed
by any person within the Agreed Locations, unlike in the former military bases:
1947 MBA
EDCA
1947 MBA, Art. XIII(l)(a):
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The Philippines consents that the United
States shall have the right to exercise jurisdiction over the following offenses: (a) Any
offense committed by any person within any base except where the offender and offended
parties are both Philippine citizens (not members of the armed forces of the United States
on active duty) or the offense is against the security of the Philippines.
No equivalent provision.
Thirteenth, EDCA does not allow the U.S. to operate military post exchange (PX) facilities,
which is free of customs duties and taxes, unlike what the expired MBA expressly allowed.
Parenthetically, the PX store has become the cultural icon of U.S. military presence in the
country.
1947 MBA
EDCA
1947 MBA, Art. XVIII(l):
It is mutually agreed that the United States
shall have the right to establish on bases, free of all licenses; fees; sales, excise or other
taxes, or imposts; Government agencies, including concessions, such as sales commissaries
and post exchanges; messes and social clubs, for the exclusive use of the United States
military forces and authorized civilian personnel and their families. The merchandise or
services sold or dispensed by such agencies shall be free of all taxes, duties and inspection
by the Philippine authorities. Administrative measures shall be taken by the appropriate
authorities of the United States to prevent the resale of goods which are sold under the
provisions of this Article to persons not entitled to buy goods at such agencies and,
generally, to prevent abuse of the privileges granted under this Article. There shall be
cooperation between such authorities and the Philippines to this end.
No equivalent provision.
In sum, EDCA is a far cry from a basing agreement as was understood by the people at the
time that the 1987 Constitution was adopted.
Nevertheless, a comprehensive review of what the Constitution means by "foreign military
bases" and "facilities" is required before EDCA can be deemed to have passed judicial
scrutiny.
c. The meaning of military facilities and bases
An appreciation of what a military base is, as understood by the Filipino people in 1987,
would be vital in determining whether EDCA breached the constitutional restriction.
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Prior to the drafting of the 1987 Constitution, the last definition of "military base" was
provided under Presidential Decree No. (PD) 1227.328 Unlawful entry into a military base
is punishable under the decree as supported by Article 281 of the Revised Penal Code, which
itself prohibits the act of trespass.
Section 2 of the law defines the term in this manner: "'[M]ilitary base' as used in this decree
means any military, air, naval, or coast guard reservation, base, fort, camp, arsenal, yard,
station, or installation in the Philippines."
Commissioner Tadeo, in presenting his objections to U.S. presence in the Philippines
before the 1986 Constitutional Commission, listed the areas that he considered as military
bases:
1,000 hectares Camp O'Donnel
20,000 hectares Crow Valley Weapon's Range
55,000 hectares Clark Air Base
150 hectares Wallace Air Station
400 hectares John Hay Air Station
15,000 hectares Subic Naval Base
1,000 hectares San Miguel Naval Communication
750 hectares Radio Transmitter in Capas, Tarlac
900 hectares Radio Bigot Annex at Bamban, Tarlac329
The Bases Conversion and Development Act of 1992 described its coverage in its
Declaration of Policies:
Sec. 2. Declaration of Policies. - It is hereby declared the policy of the Government to
accelerate the sound and balanced conversion into alternative productive uses of the Clark
and Subic military reservations and their extensions (John Hay Station, Wallace Air Station,
O'Donnell Transmitter Station, San Miguel Naval Communications Station and Capas
Relay Station), to raise funds by the sale of portions of Metro Manila military camps, and
to apply said funds as provided herein for the development and conversion to productive
civilian use of the lands covered under the 194 7 Military Bases Agreement between the
Philippines and the United States of America, as amended.330
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The result of the debates and subsequent voting is Section 25, Article XVIII of the
Constitution, which specifically restricts, among others, foreign military facilities or bases.
At the time of its crafting of the Constitution, the 1986 Constitutional Commission had a
clear idea of what exactly it was restricting. While the term "facilities and bases" was left
undefined, its point of reference was clearly those areas covered by the 1947 MBA as
amended.
Notably, nearly 30 years have passed since then, and the ever-evolving world of military
technology and geopolitics has surpassed the understanding of the Philippine people in
1986. The last direct military action of the U.S. in the region was the use of Subic base as
the staging ground for Desert Shield and Desert Storm during the Gulf War.331 In 1991, the
Philippine Senate rejected the successor treaty of the 1947 MBA that would have allowed
the continuation of U.S. bases in the Philippines.
Henceforth, any proposed entry of U.S. forces into the Philippines had to evolve likewise,
taking into consideration the subsisting agreements between both parties, the rejection of
the 1991 proposal, and a concrete understanding of what was constitutionally restricted.
This trend birthed the VFA which, as discussed, has already been upheld by this Court.
The latest agreement is EDCA, which proposes a novel concept termed "Agreed Locations."
By definition, Agreed Locations are
facilities and areas that are provided by the Government of the Philippines through the AFP
and that United States forces, United States contractors, and others as mutually agreed,
shall have the right to access and use pursuant to this Agreement. Such Agreed Locations
may be listed in an annex to be appended to this Agreement, and may be further described
in implementing arrangements.332
Preliminarily, respondent already claims that the proviso that the Philippines shall retain
ownership of and title to the Agreed Locations means that EDCA is "consistent with Article
II of the VFA which recognizes Philippine sovereignty and jurisdiction over locations
within Philippine territory.333
By this interpretation, respondent acknowledges that the contention of petitioners springs
from an understanding that the Agreed Locations merely circumvent the constitutional
restrictions. Framed differently, the bone of contention is whether the Agreed Locations
are, from a legal perspective, foreign military facilities or bases. This legal framework
triggers Section 25, Article XVIII, and makes Senate concurrence a sine qua non.
Article III of EDCA provides for Agreed Locations, in which the U.S. is authorized by the
Philippines to "conduct the following activities: "training; transit; support and related
activities; refueling of aircraft; bunkering of vessels; temporary maintenance of vehicles,
vessels and aircraft; temporary accommodation of personnel; communications;
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prepositioning of equipment, supplies and materiel; deploying forces and materiel; and
such other activities as the Parties may agree."
This creation of EDCA must then be tested against a proper interpretation of the Section
25 restriction.
d. Reasons for the constitutional requirements and legal standards for constitutionally
compatible military bases and facilities
Section 25 does not define what is meant by a "foreign military facility or base." While it
specifically alludes to U.S. military facilities and bases that existed during the framing of
the Constitution, the provision was clearly meant to apply to those bases existing at the
time and to any future facility or base. The basis for the restriction must first be deduced
from the spirit of the law, in order to set a standard for the application of its text, given the
particular historical events preceding the agreement.
Once more, we must look to the 1986 Constitutional Commissioners to glean, from their
collective wisdom, the intent of Section 25. Their speeches are rich with history and wisdom
and present a clear picture of what they considered in the crafting the provision.
SPEECH OF COMMISSIONER REGALADO334
xxxx
We have been regaled here by those who favor the adoption of the anti-bases provisions
with what purports to be an objective presentation of the historical background of the
military bases in the Philippines. Care appears, however, to have been taken to underscore
the inequity in their inception as well as their implementation, as to seriously reflect on the
supposed objectivity of the report. Pronouncements of military and civilian officials shortly
after World War II are quoted in support of the proposition on neutrality; regrettably, the
implication is that the same remains valid today, as if the world and international activity
stood still for the last 40 years.
We have been given inspired lectures on the effect of the presence of the military bases on
our sovereignty - whether in its legal or political sense is not clear - and the theory that any
country with foreign bases in its territory cannot claim to be fully sovereign or completely
independent. I was not aware that the concepts of sovereignty and independence have now
assumed the totality principle, such that a willing assumption of some delimitations in the
exercise of some aspects thereof would put that State in a lower bracket of nationhood.
xxxx
We have been receiving a continuous influx of materials on the pros and cons on the
advisability of having military bases within our shores. Most of us who, only about three
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months ago, were just mulling the prospects of these varying contentions are now expected,
like armchair generals, to decide not only on the geopolitical aspects and contingent
implications of the military bases but also on their political, social, economic and cultural
impact on our national life. We are asked to answer a plethora of questions, such as: 1)
whether the bases are magnets of nuclear attack or are deterrents to such attack; 2) whether
an alliance or mutual defense treaty is a derogation of our national sovereignty; 3) whether
criticism of us by Russia, Vietnam and North Korea is outweighed by the support for us of
the ASEAN countries, the United States, South Korea, Taiwan, Australia and New Zealand;
and 4) whether the social, moral and legal problems spawned by the military bases and
their operations can be compensated by the economic benefits outlined in papers which
have been furnished recently to all of us.
xxxx
Of course, one side of persuasion has submitted categorical, unequivocal and forceful
assertions of their positions. They are entitled to the luxury of the absolutes. We are urged
now to adopt the proposed declaration as a "golden," "unique" and "last" opportunity for
Filipinos to assert their sovereign rights. Unfortunately, I have never been enchanted by
superlatives, much less for the applause of the moment or the ovation of the hour. Nor do
I look forward to any glorious summer after a winter of political discontent. Hence, if I may
join Commissioner Laurel, I also invoke a caveat not only against the tyranny of labels but
also the tyranny of slogans.
xxxx
SPEECH OF COMMISSIONER SUAREZ
MR. SUAREZ: Thank you, Madam President.
I am quite satisfied that the crucial issues involved in the resolution of the problem of the
removal of foreign bases from the Philippines have been adequately treated by previous
speakers. Let me, therefore, just recapitulate the arguments adduced in favor of a foreign
bases-free Philippines:
1. That every nation should be free to shape its own destiny without outside interference;
2. That no lasting peace and no true sovereignty would ever be achieved so long as there
are foreign military forces in our country;
3. That the presence of foreign military bases deprives us of the very substance of national
sovereignty and this is a constant source of national embarrassment and an insult to our
national dignity and selfrespect as a nation;
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4. That these foreign military bases unnecessarily expose our country to devastating nuclear
attacks;
5. That these foreign military bases create social problems and are designed to perpetuate
the strangle-hold of United States interests in our national economy and development;
6. That the extraterritorial rights enjoyed by these foreign bases operate to deprive our
country of jurisdiction over civil and criminal offenses committed within our own national
territory and against Filipinos;
7. That the bases agreements are colonial impositions and dictations upon our helpless
country; and
8. That on the legal viewpoint and in the ultimate analysis, all the bases agreements are
null and void ab initio, especially because they did not count the sovereign consent and
will of the Filipino people.
xxxx
In the real sense, Madam President, if we in the Commission could accommodate the
provisions I have cited, what is our objection to include in our Constitution a matter as
priceless as the nationalist values we cherish? A matter of the gravest concern for the safety
and survival of this nation indeed deserves a place in our Constitution.
xxxx
x x x Why should we bargain away our dignity and our self-respect as a nation and the
future of generations to come with thirty pieces of silver?
SPEECH OF COMMISSIONER BENNAGEN
xxxx
The underlying principle of military bases and nuclear weapons wherever they are found
and whoever owns them is that those are for killing people or for terrorizing humanity.
This objective by itself at any point in history is morally repugnant. This alone is reason
enough for us to constitutionalize the ban on foreign military bases and on nuclear
weapons.341
SPEECH OF COMMISSIONER BACANI
xxxx
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x x x Hence, the remedy to prostitution does not seem to be primarily to remove the bases
because even if the bases are removed, the girls mired in poverty will look for their clientele
elsewhere. The remedy to the problem of prostitution lies primarily elsewhere - in an alert
and concerned citizenry, a healthy economy and a sound education in values.343
SPEECH OF COMMISSIONER JAMIR344
xxxx
One of the reasons advanced against the maintenance of foreign military bases here is that
they impair portions of our sovereignty. While I agree that our country's sovereignty should
not be impaired, I also hold the view that there are times when it is necessary to do so
according to the imperatives of national interest. There are precedents to this effect. Thus,
during World War II, England leased its bases in the West Indies and in Bermuda for 99
years to the United States for its use as naval and air bases. It was done in consideration of
50 overaged destroyers which the United States gave to England for its use in the Battle of
the Atlantic.
A few years ago, England gave the Island of Diego Garcia to the United States for the latter's
use as a naval base in the Indian Ocean. About the same time, the United States obtained
bases in Spain, Egypt and Israel. In doing so, these countries, in effect, contributed to the
launching of a preventive defense posture against possible trouble in the Middle East and
in the Indian Ocean for their own protection.345
SPEECH OF COMMISSIONER TINGSON346
xxxx
In the case of the Philippines and the other Southeast Asian nations, the presence of
American troops in the country is a projection of America's security interest. Enrile said
that nonetheless, they also serve, although in an incidental and secondary way, the security
interest of the Republic of the Philippines and the region. Yes, of course, Mr. Enrile also
echoes the sentiments of most of us in this Commission, namely: It is ideal for us as an
independent and sovereign nation to ultimately abrogate the RP-US military treaty and, at
the right time, build our own air and naval might.347
xxxx
Allow me to say in summation that I am for the retention of American military bases in the
Philippines provided that such an extension from one period to another shall be concluded
upon concurrence of the parties, and such extension shall be based on justice, the historical
amity of the people of the Philippines and the United States and their common defense
interest.348
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SPEECH OF COMMISSIONER ALONTO349
xxxx
Madam President, sometime ago after this Commission started with this task of framing a
constitution, I read a statement of President Aquino to the effect that she is for the removal
of the U.S. military bases in this country but that the removal of the U.S. military bases
should not be done just to give way to other foreign bases. Today, there are two world
superpowers, both vying to control any and all countries which have importance to their
strategy for world domination. The Philippines is one such country.
Madam President, I submit that I am one of those ready to completely remove any vestiges
of the days of enslavement, but not prepared to erase them if to do so would merely leave
a vacuum to be occupied by a far worse type.350
SPEECH OF COMMISSIONER GASCON351
xxxx
Let us consider the situation of peace in our world today. Consider our brethren in the
Middle East, in Indo-China, Central America, in South Africa - there has been escalation of
war in some of these areas because of foreign intervention which views these conflicts
through the narrow prism of the East-West conflict. The United States bases have been
used as springboards for intervention in some of these conflicts. We should not allow
ourselves to be party to the warlike mentality of these foreign interventionists. We must
always be on the side of peace – this means that we should not always rely on military
solution.352
xxxx
x x x The United States bases, therefore, are springboards for intervention in our own
internal affairs and in the affairs of other nations in this region.
xxxx
Thus, I firmly believe that a self-respecting nation should safeguard its fundamental
freedoms which should logically be declared in black and white in our fundamental law of
the land - the Constitution. Let us express our desire for national sovereignty so we may be
able to achieve national self-determination. Let us express our desire for neutrality so that
we may be able to follow active nonaligned independent foreign policies. Let us express our
desire for peace and a nuclear-free zone so we may be able to pursue a healthy and tranquil
existence, to have peace that is autonomous and not imposed. 353
xxxx
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SPEECH OF COMMISSIONER TADEO354
Para sa magbubukid, ano ha ang kahulugan ng U.S. military bases? Para sa magbubukid,
ang kahulugan nito ay pagkaalipin. Para sa magbubukid, ang pananatili ng U.S. military
bases ay tinik sa dibdib ng sambayanang Pilipinong patuloy na nakabaon. Para sa
sambayanang magbubukid, ang ibig sabihin ng U.S. military bases ay batong pabigat na
patuloy na pinapasan ng sambayanang Pilipino. Para sa sambayanang magbubukid, ang
pananatili ng U.S. military bases ay isang nagdudumilat na katotohanan ng patuloy na
paggahasa ng imperyalistang Estados Unidos sa ating Inang Bayan - economically,
politically and culturally. Para sa sambayanang magbubukid ang U.S. military bases ay
kasingkahulugan ng nuclear weapon - ang kahulugan ay magneto ng isang nuclear war.
Para sa sambayanang magbubukid, ang kahulugan ng U.S. military bases ay isang salot.355
SPEECH OF COMMISSIONER QUESADA356
xxxx
The drift in the voting on issues related to freeing ourselves from the instruments of
domination and subservience has clearly been defined these past weeks.
xxxx
So for the record, Mr. Presiding Officer, I would like to declare my support for the
committee's position to enshrine in the Constitution a fundamental principle forbidding
foreign military bases, troops or facilities in any part of the Philippine territory as a clear
and concrete manifestation of our inherent right to national self-determination,
independence and sovereignty.
Mr. Presiding Officer, I would like to relate now these attributes of genuine nationhood to
the social cost of allowing foreign countries to maintain military bases in our country.
Previous speakers have dwelt on this subject, either to highlight its importance in relation
to the other issues or to gloss over its significance and !llake this a part of future
negotiations.357
xxxx
Mr. Presiding Officer, I feel that banning foreign military bases is one of the solutions and
is the response of the Filipino people against this condition and other conditions that have
already been clearly and emphatically discussed in past deliberations. The deletion,
therefore, of Section 3 in the Constitution we are drafting will have the following
implications:
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First, the failure of the Constitutional Commission to decisively respond to the continuing
violation of our territorial integrity via the military bases agreement which permits the
retention of U.S. facilities within the Philippine soil over which our authorities have no
exclusive jurisdiction contrary to the accepted definition of the exercise of sovereignty.
Second, consent by this forum, this Constitutional Commission, to an exception in the
application of a provision in the Bill of Rights that we have just drafted regarding equal
application of the laws of the land to all inhabitants, permanent or otherwise, within its
territorial boundaries.
Third, the continued exercise by the United States of extraterritoriality despite the
condemnations of such practice by the world community of nations in the light of
overwhelming international approval of eradicating all vestiges of colonialism.358
xxxx
Sixth, the deification of a new concept called pragmatic sovereignty, in the hope that such
can be wielded to force the United States government to concede to better terms and
conditions concerning the military bases agreement, including the transfer of complete
control to the Philippine government of the U.S. facilities, while in the meantime we have
to suffer all existing indignities and disrespect towards our rights as a sovereign nation.
xxxx
Eighth, the utter failure of this forum to view the issue of foreign military bases as
essentially a question of sovereignty which does not require in-depth studies or analyses
and which this forum has, as a constituent assembly drafting a constitution, the expertise
and capacity to decide on except that it lacks the political will that brought it to existence
and now engages in an elaborate scheme of buck-passing.
xxxx
Without any doubt we can establish a new social order in our country, if we reclaim,
restore, uphold and defend our national sovereignty. National sovereignty is what the
military bases issue is all about. It is only the sovereign people exercising their national
sovereignty who can design an independent course and take full control of their national
destiny.359
SPEECH OF COMMISSIONER P ADILLA360
xxxx
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Mr. Presiding Officer, in advocating the majority committee report, specifically Sections 3
and 4 on neutrality, nuclear and bases-free country, some views stress sovereignty of the
Republic and even invoke survival of the Filipino nation and people.361
REBUTTAL OF COMMISSIONER NOLLEDO362
xxxx
The anachronistic and ephemeral arguments against the provisions of the committee
report to dismantle the American bases after 1991 only show the urgent need to free our
country from the entangling alliance with any power bloc.363
xxxx
xx x Mr. Presiding Officer, it is not necessary for us to possess expertise to know that the
so-called RP-US Bases Agreement will expire in 1991, that it infringes on our sovereignty
and jurisdiction as well as national dignity and honor, that it goes against the UN policy of
disarmament and that it constitutes unjust intervention in our internal affairs.364
(Emphases Supplied)
The Constitutional Commission eventually agreed to allow foreign military bases, troops,
or facilities, subject to the provisions of Section 25. It is thus important to read its
discussions carefully. From these discussions, we can deduce three legal standards that
were articulated by the Constitutional Commission Members. These are characteristics of
any agreement that the country, and by extension this Court, must ensure are observed.
We can thereby determine whether a military base or facility in the Philippines, which
houses or is accessed by foreign military troops, is foreign or remains a Philippine military
base or facility. The legal standards we find applicable are: independence from foreign
control, sovereignty and applicable law, and national security and territorial integrity.
i. First standard: independence from foreign control
Very clearly, much of the opposition to the U.S. bases at the time of the Constitution's
drafting was aimed at asserting Philippine independence from the U.S., as well as control
over our country's territory and military.
Under the Civil Code, there are several aspects of control exercised over property.
Property is classified as private or public.365 It is public if "intended for public use, such as
roads, canals, rivers, torrents, ports and bridges constructed by the State, banks, shores,
roadsteads, and others of similar character[,]" or "[t]hose which belong to the State, without
being for public use, and are intended for some public service or for the development of
the national wealth. "366
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Quite clearly, the Agreed Locations are contained within a property for public use, be it
within a government military camp or property that belongs to the Philippines.1avvphi1
Once ownership is established, then the rights of ownership flow freely. Article 428 of the
Civil Code provides that "[t]he owner has the right to enjoy and dispose of a thing, without
other limitations than those established by law." Moreover, the owner "has also a right of
action against the holder and possessor of the thing in order to recover it."
Philippine civil law therefore accords very strong rights to the owner of property, even
against those who hold the property. Possession, after all, merely raises a disputable
presumption of ownership, which can be contested through normal judicial processes.367
In this case, EDCA explicitly provides that ownership of the Agreed Locations remains with
the Philippine govemment.368 What U.S. personnel have a right to, pending mutual
agreement, is access to and use of these locations.369
The right of the owner of the property to allow access and use is consistent with the Civil
Code, since the owner may dispose of the property in whatever way deemed fit, subject to
the limits of the law. So long as the right of ownership itself is not transferred, then
whatever rights are transmitted by agreement does not completely divest the owner of the
rights over the property, but may only limit them in accordance with law.
Hence, even control over the property is something that an owner may transmit freely. This
act does not translate into the full transfer of ownership, but only of certain rights. In
Roman Catholic Apostolic Administrator of Davao, Inc. v. Land Registration Commission,
we stated that the constitutional proscription on property ownership is not violated despite
the foreign national's control over the property.370
EDCA, in respect of its provisions on Agreed Locations, is essentially a contract of use and
access. Under its pertinent provisions, it is the Designated Authority of the Philippines that
shall, when requested, assist in facilitating transit or access to public land and facilities.371
The activities carried out within these locations are subject to agreement as authorized by
the Philippine govemment.372 Granting the U.S. operational control over these locations
is likewise subject to EDCA' s security mechanisms, which are bilateral procedures
involving Philippine consent and cooperation.373 Finally, the Philippine Designated
Authority or a duly designated representative is given access to the Agreed Locations.374
To our mind, these provisions do not raise the spectre of U.S. control, which was so feared
by the Constitutional Commission. In fact, they seem to have been the product of deliberate
negotiation from the point of view of the Philippine government, which balanced
constitutional restrictions on foreign military bases and facilities against the security needs
of the country. In the 1947 MBA, the U.S. forces had "the right, power and authority x x x
to construct (including dredging and filling), operate, maintain, utilize, occupy, garrison
and control the bases."375 No similarly explicit provision is present in EDCA.
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Nevertheless, the threshold for allowing the presence of foreign military facilities and bases
has been raised by the present Constitution. Section 25 is explicit that foreign military
bases, troops, or facilities shall not be allowed in the Philippines, except under a treaty duly
concurred in by the Senate. Merely stating that the Philippines would retain ownership
would do violence to the constitutional requirement if the Agreed Locations were simply
to become a less obvious manifestation of the U.S. bases that were rejected in 1991.
When debates took place over the military provisions of the Constitution, the committee
rejected a specific provision proposed by Commissioner Sarmiento. The discussion
illuminates and provides context to the 1986 Constitutional Commission's vision of control
and independence from the U.S., to wit:
MR. SARMIENTO: Madam President, my proposed amendment reads as follows: "THE
STATE SHALL ESTABLISH AND MAINTAIN AN INDEPENDENT AND SELF-RELIANT
ARMED FORCES OF THE PHILIPPINES." Allow me to briefly explain, Madam President.
The Armed Forces of the Philippines is a vital component of Philippine society depending
upon its training, orientation and support. It will either be the people's protector or a
staunch supporter of a usurper or tyrant, local and foreign interest. The Armed Forces of
the Philippines' past and recent experience shows it has never been independent and selfreliant. Facts, data and statistics will show that it has been substantially dependent upon a
foreign power. In March 1968, Congressman Barbero, himself a member of the Armed
Forces of the Philippines, revealed top secret documents showing what he described as U.S.
dictation over the affairs of the Armed Forces of the Philippines. He showed that under
existing arrangements, the United States unilaterally determines not only the types and
quantity of arms and equipments that our armed forces would have, but also the time when
these items are to be made available to us. It is clear, as he pointed out, that the
composition, capability and schedule of development of the Armed Forces of the
Philippines is under the effective control of the U.S. government.376 (Emphases supplied)
Commissioner Sarmiento proposed a motherhood statement in the 1987 Constitution that
would assert "independent" and "self-reliant" armed forces. This proposal was rejected by
the committee, however. As Commissioner De Castro asserted, the involvement of the
Philippine military with the U.S. did not, by itself, rob the Philippines of its real
independence. He made reference to the context of the times: that the limited resources of
the Philippines and the current insurgency at that time necessitated a strong military
relationship with the U.S. He said that the U.S. would not in any way control the Philippine
military despite this relationship and the fact that the former would furnish military
hardware or extend military assistance and training to our military. Rather, he claimed that
the proposal was in compliance with the treaties between the two states.
MR. DE CASTRO: If the Commissioner will take note of my speech on U.S. military bases
on 12 September 1986, I spoke on the selfreliance policy of the armed forces. However, due
to very limited resources, the only thing we could do is manufacture small arms
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ammunition. We cannot blame the armed forces. We have to blame the whole Republic of
the Philippines for failure to provide the necessary funds to make the Philippine Armed
Forces self-reliant. Indeed that is a beautiful dream. And I would like it that way. But as of
this time, fighting an insurgency case, a rebellion in our country - insurgency - and with
very limited funds and very limited number of men, it will be quite impossible for the
Philippines to appropriate the necessary funds therefor. However, if we say that the U.S.
government is furnishing us the military hardware, it is not control of our armed forces or
of our government. It is in compliance with the Mutual Defense Treaty. It is under the
military assistance program that it becomes the responsibility of the United States to
furnish us the necessary hardware in connection with the military bases agreement. Please
be informed that there are three (3) treaties connected with the military bases agreement;
namely: the RP-US Military Bases Agreement, the Mutual Defense Treaty and the Military
Assistance Program.
My dear Commissioner, when we enter into a treaty and we are furnished the military
hardware pursuant to that treaty, it is not in control of our armed forces nor control of our
government. True indeed, we have military officers trained in the U.S. armed forces school.
This is part of our Military Assistance Program, but it does not mean that the minds of our
military officers are for the U.S. government, no. I am one of those who took four courses
in the United States schools, but I assure you, my mind is for the Filipino people. Also,
while we are sending military officers to train or to study in U.S. military schools, we are
also sending our officers to study in other military schools such as in Australia, England
and in Paris. So, it does not mean that when we send military officers to United States
schools or to other military schools, we will be under the control of that country. We also
have foreign officers in our schools, we in the Command and General Staff College in Fort
Bonifacio and in our National Defense College, also in Fort Bonifacio.377 (Emphases
supplied)
This logic was accepted in Tañada v. Angara, in which the Court ruled that independence
does not mean the absence of foreign participation:
Furthermore, the constitutional policy of a "self-reliant and independent national
economy" does not necessarily rule out the entry of foreign investments, goods and
services. It contemplates neither "economic seclusion" nor "mendicancy in the
international community." As explained by Constitutional Commissioner Bernardo
Villegas, sponsor of this constitutional policy:
Economic self reliance is a primary objective of a developing country that is keenly aware
of overdependence on external assistance for even its most basic needs. It does not mean
autarky or economic seclusion; rather, it means avoiding mendicancy in the international
community. Independence refers to the freedom from undue foreign control of the national
economy, especially in such strategic industries as in the development of natural resources
and public utilities.378 (Emphases supplied)
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The heart of the constitutional restriction on foreign military facilities and bases is
therefore the assertion of independence from the U.S. and other foreign powers, as
independence is exhibited by the degree of foreign control exerted over these areas.1âwphi1
The essence of that independence is self-governance and self-control.379 Independence
itself is "[t]he state or condition of being free from dependence, subjection, or control. "380
Petitioners assert that EDCA provides the U.S. extensive control and authority over
Philippine facilities and locations, such that the agreement effectively violates Section 25
of the 1987 Constitution.381
Under Article VI(3) of EDCA, U.S. forces are authorized to act as necessary for "operational
control and defense." The term "operational control" has led petitioners to regard U.S.
control over the Agreed Locations as unqualified and, therefore, total.382 Petitioners
contend that the word "their" refers to the subject "Agreed Locations."
This argument misreads the text, which is quoted below:
United States forces are authorized to exercise all rights and authorities within Agreed
Locations that are necessary for their operational control or defense, including taking
appropriate measure to protect United States forces and United States contractors. The
United States should coordinate such measures with appropriate authorities of the
Philippines.
A basic textual construction would show that the word "their," as understood above, is a
possessive pronoun for the subject "they," a third-person personal pronoun in plural form.
Thus, "their" cannot be used for a non-personal subject such as "Agreed Locations." The
simple grammatical conclusion is that "their" refers to the previous third-person plural
noun, which is "United States forces." This conclusion is in line with the definition of
operational control.
a. U.S. operational control as the exercise of authority over U.S. personnel, and not over
the Agreed Locations
Operational control, as cited by both petitioner and respondents, is a military term
referring to
[t]he authority to perform those functions of command over subordinate forces involving
organizing and employing commands and forces, assigning tasks, designating objective,
and giving authoritative direction necessary to accomplish the mission.383
At times, though, operational control can mean something slightly different. In JUSMAG
Philippines v. National Labor Relations Commission, the Memorandum of Agreement
between the AFP and JUSMAG Philippines defined the term as follows:384
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The term "Operational Control" includes, but is not limited to, all personnel administrative
actions, such as: hiring recommendations; firing recommendations; position classification;
discipline; nomination and approval of incentive awards; and payroll computation.
Clearly, traditional standards define "operational control" as personnel control. Philippine
law, for instance, deems operational control as one exercised by police officers and civilian
authorities over their subordinates and is distinct from the administrative control that they
also exercise over police subordinates.385 Similarly, a municipal mayor exercises
operational control over the police within the municipal government,386 just as city mayor
possesses the same power over the police within the city government.387
Thus, the legal concept of operational control involves authority over personnel in a
commander-subordinate relationship and does not include control over the Agreed
Locations in this particular case. Though not necessarily stated in EDCA provisions, this
interpretation is readily implied by the reference to the taking of "appropriate measures to
protect United States forces and United States contractors."
It is but logical, even necessary, for the U.S. to have operational control over its own forces,
in much the same way that the Philippines exercises operational control over its own units.
For actual operations, EDCA is clear that any activity must be planned and pre-approved
by the MDB-SEB.388 This provision evinces the partnership aspect of EDCA, such that both
stakeholders have a say on how its provisions should be put into effect.
b. Operational control vis-à-vis effective command and control
Petitioners assert that beyond the concept of operational control over personnel, qualifying
access to the Agreed Locations by the Philippine Designated Authority with the phrase
"consistent with operational safety and security requirements in accordance with agreed
procedures developed by the Parties" leads to the conclusion that the U.S. exercises
effective control over the Agreed Locations.389 They claim that if the Philippines exercises
possession of and control over a given area, its representative should not have to be
authorized by a special provision.390
For these reasons, petitioners argue that the "operational control" in EDCA is the "effective
command and control" in the 1947 MBA.391 In their Memorandum, they distinguish
effective command and control from operational control in U.S. parlance.392 Citing the
Doctrine for the Armed Forces of the United States, Joint Publication 1, "command and
control (C2)" is defined as "the exercise of authority and direction by a properly designated
commander over assigned and attached forces in the accomplishment of the mission x x
x."393 Operational control, on the other hand, refers to "[t]hose functions of command over
assigned forces involving the composition of subordinate forces, the assignment of tasks,
the designation of objectives, the overall control of assigned resources, and the full
authoritative direction necessary to accomplish the mission."394
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Two things demonstrate the errors in petitioners' line of argument.
Firstly, the phrase "consistent with operational safety and security requirements in
accordance with agreed procedures developed by the Parties" does not add any
qualification beyond that which is already imposed by existing treaties. To recall, EDCA is
based upon prior treaties, namely the VFA and the MDT.395 Treaties are in themselves
contracts from which rights and obligations may be claimed or waived.396 In this particular
case, the Philippines has already agreed to abide by the security mechanisms that have long
been in place between the U.S. and the Philippines based on the implementation of their
treaty relations.397
Secondly, the full document cited by petitioners contradicts the equation of "operational
control" with "effective command and control," since it defines the terms quite differently,
viz:398
Command and control encompasses the exercise of authority, responsibility, and direction
by a commander over assigned and attached forces to accomplish the mission. Command
at all levels is the art of motivating and directing people and organizations into action to
accomplish missions. Control is inherent in command. To control is to manage and direct
forces and functions consistent with a commander's command authority. Control of forces
and functions helps commanders and staffs compute requirements, allocate means, and
integrate efforts. Mission command is the preferred method of exercising C2. A complete
discussion of tenets, organization, and processes for effective C2 is provided in Section B,
"Command and Control of Joint Forces," of Chapter V "Joint Command and Control."
Operational control is defined thus:399
OPCON is able to be delegated from a lesser authority than COCOM. It is the authority to
perform those functions of command over subordinate forces involving organizing and
employing commands and forces, assigning tasks, designating objectives, and giving
authoritative direction over all aspects of military operations and joint training necessary
to accomplish the mission. It should be delegated to and exercised by the commanders of
subordinate organizations; normally, this authority is exercised through subordinate JFCs,
Service, and/or functional component commanders. OPCON provides authority to
organize and employ commands and forces as the commander considers necessary to
accomplish assigned missions. It does not include authoritative direction for logistics or
matters of administration, discipline, internal organization, or unit training. These
elements of COCOM must be specifically delegated by the CCDR. OPCON does include
the authority to delineate functional responsibilities and operational areas of subordinate
JFCs.
Operational control is therefore the delegable aspect of combatant command, while
command and control is the overall power and responsibility exercised by the commander
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with reference to a mission. Operational control is a narrower power and must be given,
while command and control is plenary and vested in a commander. Operational control
does not include the planning, programming, budgeting, and execution process input; the
assignment of subordinate commanders; the building of relationships with Department of
Defense agencies; or the directive authority for logistics, whereas these factors are included
in the concept of command and control.400
This distinction, found in the same document cited by petitioners, destroys the very
foundation of the arguments they have built: that EDCA is the same as the MBA.
c. Limited operational control over the Agreed Locations only for construction activitites
As petitioners assert, EDCA indeed contains a specific provision that gives to the U.S.
operational control within the Agreed Locations during construction activities.401 This
exercise of operational control is premised upon the approval by the MDB and the SEB of
the construction activity through consultation and mutual agreement on the requirements
and standards of the construction, alteration, or improvement.402
Despite this grant of operational control to the U.S., it must be emphasized that the grant
is only for construction activities. The narrow and limited instance wherein the U.S. is given
operational control within an Agreed Location cannot be equated with foreign military
control, which is so abhorred by the Constitution.
The clear import of the provision is that in the absence of construction activities,
operational control over the Agreed Location is vested in the Philippine authorities. This
meaning is implicit in the specific grant of operational control only during construction
activities. The principle of constitutional construction, "expressio unius est exclusio
alterius," means the failure to mention the thing becomes the ground for inferring that it
was deliberately excluded.403 Following this construction, since EDCA mentions the
existence of U.S. operational control over the Agreed Locations for construction activities,
then it is quite logical to conclude that it is not exercised over other activities.
Limited control does not violate the Constitution. The fear of the commissioners was total
control, to the point that the foreign military forces might dictate the terms of their acts
within the Philippines.404 More important, limited control does not mean an abdication
or derogation of Philippine sovereignty and legal jurisdiction over the Agreed Locations. It
is more akin to the extension of diplomatic courtesies and rights to diplomatic agents,405
which is a waiver of control on a limited scale and subject to the terms of the treaty.
This point leads us to the second standard envisioned by the framers of the Constitution:
that the Philippines must retain sovereignty and jurisdiction over its territory.
ii. Second standard: Philippine sovereignty and applicable law
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EDCA states in its Preamble the "understanding for the United States not to establish a
permanent military presence or base in the territory of the Philippines." Further on, it
likewise states the recognition that "all United States access to and use of facilities and
areas will be at the invitation of the Philippines and with full respect for the Philippine
Constitution and Philippine laws."
The sensitivity of EDCA provisions to the laws of the Philippines must be seen in light of
Philippine sovereignty and jurisdiction over the Agreed Locations.
Sovereignty is the possession of sovereign power,406 while jurisdiction is the conferment
by law of power and authority to apply the law.407 Article I of the 1987 Constitution states:
The national territory comprises the Philippine archipelago, with all the islands and waters
embraced therein, and all other territories over which the Philippines has sovereignty or
jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial
sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters
around, between, and connecting the islands of the archipelago, regardless of their breadth
and dimensions, form part of the internal waters of the Philippines. (Emphasis supplied)
From the text of EDCA itself, Agreed Locations are territories of the Philippines that the
U.S. forces are allowed to access and use.408 By withholding ownership of these areas and
retaining unrestricted access to them, the government asserts sovereignty over its territory.
That sovereignty exists so long as the Filipino people exist.409
Significantly, the Philippines retains primary responsibility for security with respect to the
Agreed Locations.410 Hence, Philippine law remains in force therein, and it cannot be said
that jurisdiction has been transferred to the U.S. Even the previously discussed necessary
measures for operational control and defense over U.S. forces must be coordinated with
Philippine authorities.411
Jurisprudence bears out the fact that even under the former legal regime of the MBA,
Philippine laws continue to be in force within the bases.412 The difference between then
and now is that EDCA retains the primary jurisdiction of the Philippines over the security
of the Agreed Locations, an important provision that gives it actual control over those
locations. Previously, it was the provost marshal of the U.S. who kept the peace and
enforced Philippine law in the bases. In this instance, Philippine forces act as peace officers,
in stark contrast to the 1947 MBA provisions on jurisdiction.413
iii. Third standard: must respect national security and territorial integrity
The last standard this Court must set is that the EDCA provisions on the Agreed Locations
must not impair or threaten the national security and territorial integrity of the Philippines.
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This Court acknowledged in Bayan v. Zamora that the evolution of technology has
essentially rendered the prior notion of permanent military bases obsolete.
Moreover, military bases established within the territory of another state is no longer viable
because of the alternatives offered by new means and weapons of warfare such as nuclear
weapons, guided missiles as well as huge sea vessels that can stay afloat in the sea even for
months and years without returning to their home country. These military warships are
actually used as substitutes for a land-home base not only of military aircraft but also of
military personnel and facilities. Besides, vessels are mobile as compared to a land-based
military headquarters.414
The VFA serves as the basis for the entry of U.S. troops in a limited scope. It does not allow,
for instance, the re-establishment of the Subic military base or the Clark Air Field as U.S.
military reservations. In this context, therefore, this Court has interpreted the restrictions
on foreign bases, troops, or facilities as three independent restrictions. In accord with this
interpretation, each restriction must have its own qualification.
Petitioners quote from the website http://en.wikipedia.org to define what a military base
is. While the source is not authoritative, petitioners make the point that the Agreed
Locations, by granting access and use to U.S. forces and contractors, are U.S. bases under
a different name.416 More important, they claim that the Agreed Locations invite instances
of attack on the Philippines from enemies of the U.S.
We believe that the raised fear of an attack on the Philippines is not in the realm of law,
but of politics and policy. At the very least, we can say that under international law, EDCA
does not provide a legal basis for a justified attack on the Philippines.
In the first place, international law disallows any attack on the Agreed Locations simply
because of the presence of U.S. personnel. Article 2(4) of the United Nations Charter states
that "All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in any other
manner inconsistent with the Purposes of the United Nations." Any unlawful attack on the
Philippines breaches the treaty, and triggers Article 51 of the same charter, which
guarantees the inherent right of individual or collective self-defence.
Moreover, even if the lawfulness of the attack were not in question, international
humanitarian law standards prevent participants in an armed conflict from targeting nonparticipants. International humanitarian law, which is the branch of international law
applicable to armed conflict, expressly limits allowable military conduct exhibited by forces
of a participant in an armed conflict.419 Under this legal regime, participants to an armed
conflict are held to specific standards of conduct that require them to distinguish between
combatants and non-combatants,420 as embodied by the Geneva Conventions and their
Additional Protocols.421
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Corollary to this point, Professor John Woodcliffe, professor of international law at the
University of Leicester, noted that there is no legal consensus for what constitutes a base,
as opposed to other terms such as "facilities" or "installation."422 In strategic literature,
"base" is defined as an installation "over which the user State has a right to exclusive control
in an extraterritorial sense."423 Since this definition would exclude most foreign military
installations, a more important distinction must be made.
For Woodcliffe, a type of installation excluded from the definition of "base" is one that does
not fulfill a combat role. He cites an example of the use of the territory of a state for training
purposes, such as to obtain experience in local geography and climactic conditions or to
carry out joint exercises.424 Another example given is an advanced communications
technology installation for purposes of information gathering and communication.425
Unsurprisingly, he deems these non-combat uses as borderline situations that would be
excluded from the functional understanding of military bases and installations.426
By virtue of this ambiguity, the laws of war dictate that the status of a building or person is
presumed to be protected, unless proven otherwise.427 Moreover, the principle of
distinction requires combatants in an armed conflict to distinguish between lawful
targets428 and protected targets.429 In an actual armed conflict between the U.S. and a
third state, the Agreed Locations cannot be considered U.S. territory, since ownership of
territory even in times of armed conflict does not change.430
Hence, any armed attack by forces of a third state against an Agreed Location can only be
legitimate under international humanitarian law if it is against a bona fide U.S. military
base, facility, or installation that directly contributes to the military effort of the U.S.
Moreover, the third state's forces must take all measures to ensure that they have complied
with the principle of distinction (between combatants and non-combatants).
There is, then, ample legal protection for the Philippines under international law that
would ensure its territorial integrity and national security in the event an Agreed Location
is subjected to attack. As EDCA stands, it does not create the situation so feared by
petitioners - one in which the Philippines, while not participating in an armed conflict,
would be legitimately targeted by an enemy of the U.S.431
In the second place, this is a policy question about the wisdom of allowing the presence of
U.S. personnel within our territory and is therefore outside the scope of judicial review.
Evidently, the concept of giving foreign troops access to "agreed" locations, areas, or
facilities within the military base of another sovereign state is nothing new on the
international plane. In fact, this arrangement has been used as the framework for several
defense cooperation agreements, such as in the following:
1. 2006 U.S.-Bulgaria Defense Cooperation Agreement432
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2. 2009 U.S.-Colombia Defense Cooperation Agreement433
3. 2009 U.S.-Poland Status of Forces Agreement434
4. 2014 U.S.-Australia Force Posture Agreement435
5. 2014 U.S.-Afghanistan Security and Defense Cooperation Agreement436
In all of these arrangements, the host state grants U.S. forces access to their military
bases.437 That access is without rental or similar costs to the U.S.438 Further, U.S. forces
are allowed to undertake construction activities in, and make alterations and
improvements to, the agreed locations, facilities, or areas.439 As in EDCA, the host states
retain ownership and jurisdiction over the said bases.440
In fact, some of the host states in these agreements give specific military-related rights to
the U.S. For example, under Article IV(l) of the US.-Bulgaria Defense Cooperation
Agreement, "the United States forces x x x are authorized access to and may use agreed
facilities and areas x x x for staging and deploying of forces and materiel, with the purpose
of conducting x x x contingency operations and other missions, including those undertaken
in the framework of the North Atlantic Treaty." In some of these agreements, host countries
allow U.S. forces to construct facilities for the latter’s exclusive use.441
Troop billeting, including construction of temporary structures, is nothing new. In Lim v.
Executive Secretary, the Court already upheld the Terms of Reference of Balikatan 02-1,
which authorized U.S. forces to set up "[t]emporary structures such as those for troop
billeting, classroom instruction and messing x x x during the Exercise." Similar provisions
are also in the Mutual Logistics Support Agreement of 2002 and 2007, which are essentially
executive agreements that implement the VFA, the MDT, and the 1953 Military Assistance
Agreement. These executive agreements similarly tackle the "reciprocal provision of
logistic support, supplies, and services,"442 which include "[b ]illeting, x x x operations
support (and construction and use of temporary structures incident to operations support),
training services, x x x storage services, x x x during an approved activity."443 These logistic
supplies, support, and services include temporary use of "nonlethal items of military
equipment which are not designated as significant military equipment on the U.S.
Munitions List, during an approved activity."444 The first Mutual Logistics Support
Agreement has lapsed, while the second one has been extended until 2017 without any
formal objection before this Court from the Senate or any of its members.
The provisions in EDCA dealing with Agreed Locations are analogous to those in the
aforementioned executive agreements. Instead of authorizing the building of temporary
structures as previous agreements have done, EDCA authorizes the U.S. to build permanent
structures or alter or improve existing ones for, and to be owned by, the Philippines.445
EDCA is clear that the Philippines retains ownership of altered or improved facilities and
newly constructed permanent or non-relocatable structures.446 Under EDCA, U.S. forces
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will also be allowed to use facilities and areas for "training; x x x; support and related
activities; x x x; temporary accommodation of personnel; communications" and agreed
activities.447
Concerns on national security problems that arise from foreign military equipment being
present in the Philippines must likewise be contextualized. Most significantly, the VFA
already authorizes the presence of U.S. military equipment in the country. Article VII of
the VFA already authorizes the U.S. to import into or acquire in the Philippines
"equipment, materials, supplies, and other property" that will be used "in connection with
activities" contemplated therein. The same section also recognizes that "[t]itle to such
property shall remain" with the US and that they have the discretion to "remove such
property from the Philippines at any time."
There is nothing novel, either, in the EDCA provision on the prepositioning and storing of
"defense equipment, supplies, and materiel,"448 since these are sanctioned in the VFA. In
fact, the two countries have already entered into various implementing agreements in the
past that are comparable to the present one. The Balikatan 02-1 Terms of Reference
mentioned in Lim v. Executive Secretary specifically recognizes that Philippine and U.S.
forces "may share x x x in the use of their resources, equipment and other assets." Both the
2002 and 2007 Mutual Logistics Support Agreements speak of the provision of support and
services, including the "construction and use of temporary structures incident to
operations support" and "storage services" during approved activities.449 These logistic
supplies, support, and services include the "temporary use of x x x nonlethal items of
military equipment which are not designated as significant military equipment on the U.S.
Munitions List, during an approved activity."450 Those activities include "combined
exercises and training, operations and other deployments" and "cooperative efforts, such
as humanitarian assistance, disaster relief and rescue operations, and maritime antipollution operations" within or outside Philippine territory.451 Under EDCA, the
equipment, supplies, and materiel that will be prepositioned at Agreed Locations include
"humanitarian assistance and disaster relief equipment, supplies, and materiel. "452
Nuclear weapons are specifically excluded from the materiel that will be prepositioned.
Therefore, there is no basis to invalidate EDCA on fears that it increases the threat to our
national security. If anything, EDCA increases the likelihood that, in an event requiring a
defensive response, the Philippines will be prepared alongside the U.S. to defend its islands
and insure its territorial integrity pursuant to a relationship built on the MDT and VFA.
8. Others issues and concerns raised
A point was raised during the oral arguments that the language of the MDT only refers to
mutual help and defense in the Pacific area.453 We believe that any discussion of the
activities to be undertaken under EDCA vis-a-vis the defense of areas beyond the Pacific is
premature. We note that a proper petition on that issue must be filed before we rule
thereon. We also note that none of the petitions or memoranda has attempted to discuss
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this issue, except only to theorize that the U.S. will not come to our aid in the event of an
attack outside of the Pacific. This is a matter of policy and is beyond the scope of this
judicial review.
In reference to the issue on telecommunications, suffice it to say that the initial impression
of the facility adverted to does appear to be one of those that require a public franchise by
way of congressional action under Section 11, Article XII of the Constitution. As respondents
submit, however, the system referred to in the agreement does not provide
telecommunications services to the public for compensation.454 It is clear from Article
VIl(2) of EDCA that the telecommunication system is solely for the use of the U.S. and not
the public in general, and that this system will not interfere with that which local operators
use. Consequently, a public franchise is no longer necessary.
Additionally, the charge that EDCA allows nuclear weapons within Philippine territory is
entirely speculative. It is noteworthy that the agreement in fact specifies that the
prepositioned materiel shall not include nuclear weapons.455 Petitioners argue that only
prepositioned nuclear weapons are prohibited by EDCA; and that, therefore, the U.S. would
insidiously bring nuclear weapons to Philippine territory.456 The general prohibition on
nuclear weapons, whether prepositioned or not, is already expressed in the 1987
Constitution.457 It would be unnecessary or superfluous to include all prohibitions already
in the Constitution or in the law through a document like EDCA.
Finally, petitioners allege that EDCA creates a tax exemption, which under the law must
originate from Congress. This allegation ignores jurisprudence on the government's
assumption of tax liability. EDCA simply states that the taxes on the use of water,
electricity, and public utilities are for the account of the Philippine Government.458 This
provision creates a situation in which a contracting party assumes the tax liability of the
other.459 In National Power Corporation v. Province of Quezon, we distinguished between
enforceable and unenforceable stipulations on the assumption of tax liability. Afterwards,
we concluded that an enforceable assumption of tax liability requires the party assuming
the liability to have actual interest in the property taxed.460 This rule applies to EDCA,
since the Philippine Government stands to benefit not only from the structures to be built
thereon or improved, but also from the joint training with U.S. forces, disaster preparation,
and the preferential use of Philippine suppliers.461 Hence, the provision on the assumption
of tax liability does not constitute a tax exemption as petitioners have posited.
Additional issues were raised by petitioners, all relating principally to provisions already
sufficiently addressed above. This Court takes this occasion to emphasize that the
agreement has been construed herein as to absolutely disauthorize the violation of the
Constitution or any applicable statute. On the contrary, the applicability of Philippine law
is explicit in EDCA.
EPILOGUE
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The fear that EDCA is a reincarnation of the U.S. bases so zealously protested by noted
personalities in Philippine history arises not so much from xenophobia, but from a genuine
desire for self-determination, nationalism, and above all a commitment to ensure the
independence of the Philippine Republic from any foreign domination.
Mere fears, however, cannot curtail the exercise by the President of the Philippines of his
Constitutional prerogatives in respect of foreign affairs. They cannot cripple him when he
deems that additional security measures are made necessary by the times. As it stands, the
Philippines through the Department of Foreign Affairs has filed several diplomatic protests
against the actions of the People's Republic of China in the West Philippine Sea;462
initiated arbitration against that country under the United Nations Convention on the Law
of the Sea;463 is in the process of negotiations with the Moro Islamic Liberation Front for
peace in Southern Philippines,464 which is the subject of a current case before this Court;
and faces increasing incidents of kidnappings of Filipinos and foreigners allegedly by the
Abu Sayyaf or the New People's Army.465 The Philippine military is conducting reforms
that seek to ensure the security and safety of the nation in the years to come.466 In the
future, the Philippines must navigate a world in which armed forces fight with increasing
sophistication in both strategy and technology, while employing asymmetric warfare and
remote weapons.
Additionally, our country is fighting a most terrifying enemy: the backlash of Mother
Nature. The Philippines is one of the countries most directly affected and damaged by
climate change. It is no coincidence that the record-setting tropical cyclone Yolanda
(internationally named Haiyan), one of the most devastating forces of nature the world has
ever seen hit the Philippines on 8 November 2013 and killed at least 6,000 people.467 This
necessitated a massive rehabilitation project.468 In the aftermath, the U.S. military was
among the first to extend help and support to the Philippines.
That calamity brought out the best in the Filipinos as thousands upon thousands
volunteered their help, their wealth, and their prayers to those affected. It also brought to
the fore the value of having friends in the international community.
In order to keep the peace in its archipelago in this region of the world, and to sustain itself
at the same time against the destructive forces of nature, the Philippines will need friends.
Who they are, and what form the friendships will take, are for the President to decide. The
only restriction is what the Constitution itself expressly prohibits. It appears that this
overarching concern for balancing constitutional requirements against the dictates of
necessity was what led to EDCA.
As it is, EDCA is not constitutionally infirm. As an executive agreement, it remains
consistent with existing laws and treaties that it purports to implement.
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RENE A.V. SAGUISAG, et al. vs EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.,
et al.
G.R. No. 212444. G.R. No. 212426, July 26, 2017
Facts:
The Motion for Reconsideration was filed to seek the reversal of the Decision of this Court
in Saguisag et. al., v. Executive Secretary dated 12 January 2016.The petitions in Sasguisag,
et. al. had questioned the constitutionality of the Enhanced Defense Cooperation
Agreement (EDCA) between the Republic of the Philippines and the United States of
America (U.S.). There, the Supreme Court ruled that the petitions be dismissed.
Issue:
Whether the EDCA should be declared as unconstitutional.
Ruling:
The principal reason for the Motion for Reconsideration is evidently petitioners'
disagreement with the Decision that EDCA implements the VFA and MDT. They reiterate
their arguments that EDCA's provisions fall outside the allegedly limited scope of the VFA
and MDT because it provides a wider arrangement than the VFA for military bases, troops,
and facilities, and it allows the establishment of U.S. military bases.
Specifically, petitioners cite the terms of the VFA referring to "joint exercises,"21 such that
arrangements involving the individual States-parties such as exclusive use of prepositioned
materiel are not covered by the VFA. More emphatically, they state that prepositioning
itself as an activity is not allowed under the VFA.22
Evidently, petitioners left out of their quote the portion of the Decision which cited the
Senate report on the VFA. The full quote reads as follows:
Siazon clarified that it is not the VFA by itself that determines what activities will be
conducted between the armed forces of the U.S. and the Philippines. The VFA regulates
and provides the legal framework for the presence, conduct and legal status of U.S.
personnel while they are in the country for visits, joint exercises and other related
activities.23
Quite clearly, the VFA contemplated activities beyond joint exercises, which this Court had
already recognized and alluded to in Lim v. Executive Secretary,24even though the Court
in that case was faced with a challenge to the Terms of Reference of a specific type of joint
exercise, the Balikatan Exercise.
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One source petitioners used to make claims on the limitation of the VFA to joint exercises
is the alleged Department of Foreign Affairs (DFA) Primer on the VFA, which they claim
states that:
Furthermore, the VFA does not involve access arrangements for United States armed forces
or the pre-positioning in the country of U.S. armaments and war materials. The agreement
is about personnel and not equipment or supplies.25
Unfortunately, the uniform resource locator link cited by petitioners is inaccessible.
However, even if we grant its veracity, the text of the VFA itself belies such a claim. Article
I of the VFA states that "[a ]s used in this Agreement, "United States personnel" means
United States military and civilian personnel temporarily in the Philippines in connection
with activities approved by the Philippine Government."26 These "activities" were, as stated
in Lim, left to further implementing agreements. It is true that Article VII on Importation
did not indicate pre-positioned materiel, since it referred to "United States Government
equipment, materials, supplies, and other property imported into or acquired in the
Philippines by or on behalf of the United States armed forces in connection with activities
to which this agreement applies[.]"27
Nonetheless, neither did the text of the VFA indicate "joint exercises" as the only activity,
or even as one of those activities authorized by the treaty. In fact, the Court had previously
noted that
[n]ot much help can be had therefrom [VFA], unfortunately, since the terminology
employed is itself the source of the problem. The VFA permits United States personnel to
engage, on an impermanent basis, in "activities," the exact meaning of which was left
undefined. The expression is ambiguous, permitting a wide scope of undertakings subject
only to the approval of the Philippine government. The sole encumbrance placed on its
definition is couched in the negative, in that United States personnel must "abstain from
any activity inconsistent with the spirit of this agreement, and in particular, from any
political activity." All other activities, in other words, are fair game.28
Moreover, even if the DFA Primer was accurate, properly cited, and offered as evidence, it
is quite clear that the DFA's opinion on the VFA is not legally binding nor conclusive.29 It
is the exclusive duty of the Court to interpret with finality what the VFA can or cannot
allow according to its provisions.30
In addition to this, petitioners detail their objections to EDCA in a similar way to their
original petition, claiming that the VFA and MDT did not allow EDCA to contain the
following provisions:
1. Agreed Locations
2. Rotational presence of personnel
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3. U.S. contractors
4. Activities of U.S. contractors31
We ruled in Saguisag, et. al. that the EDCA is not a treaty despite the presence of these
provisions. The very nature of EDCA, its provisions and subject matter, indubitably
categorize it as an executive agreement - a class of agreement that is not covered by the
Article XVIII Section 25 restriction - in painstaking detail.32 To partially quote the Decision:
Executive agreements may dispense with the requirement of Senate concurrence because
of the legal mandate with which they are concluded. As culled from the afore-quoted
deliberations of the Constitutional Commission, past Supreme Court Decisions, and works
of noted scholars, executive agreements merely involve arrangements on the
implementation of existing policies, rules, laws, or agreements. They are concluded (1) to
adjust the details of a treaty; (2) pursuant to or upon confirmation by an act of the
Legislature; or (3) in the exercise of the President's independent powers under the
Constitution. The raison d'etre of executive agreements hinges on prior constitutional or
legislative authorizations.
The special nature of an executive agreement is not just a domestic variation in
international agreements. International practice has accepted the use of various forms and
designations of international agreements, ranging from the traditional notion of a treaty which connotes a formal, solemn instrument - to engagements concluded in modern,
simplified forms that no longer necessitate ratification. An international agreement may
take different forms: treaty, act, protocol, agreement, concordat, compromis d'arbitrage,
convention, covenant, declaration, exchange of notes, statute, pact, charter, agreed minute,
memorandum of agreement, modus vivendi, or some other form. Consequently, under
international law, the distinction between a treaty and an international agreement or even
an executive agreement is irrelevant for purposes of determining international rights and
obligations.
However, this principle does not mean that the domestic law distinguishing treaties,
international agreements, and executive agreements is relegated to a mere variation in
form, or that the constitutional requirement of Senate concurrence is demoted to an
optional constitutional directive. There remain two very important features that
distinguish treaties from executive agreements and translate them into terms of art in the
domestic setting.
First, executive agreements must remain traceable to an express or implied authorization
under the Constitution, statutes, or treaties. The absence of these precedents puts the
validity and effectivity of executive agreements under serious question for the main
function of the Executive is to enforce the Constitution and the laws enacted by the
Legislature, not to defeat or interfere in the performance of these rules. In turn, executive
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agreements cannot create new international obligations that are not expressly allowed or
reasonably implied in the law they purport to implement.
Second, treaties are, by their very nature, considered superior to executive agreements.
Treaties are products of the acts of the Executive and the Senate unlike executive
agreements, which are solely executive actions. Because of legislative participation through
the Senate, a treaty is regarded as being on the same level as a statute. If there is an
irreconcilable conflict, a later law or treaty takes precedence over one that is prior. An
executive agreement is treated differently. Executive agreements that are inconsistent with
either a law or a treaty are considered ineffective. Both types of international agreement
are nevertheless subject to the supremacy of the Constitution.33 (Emphasis supplied,
citations omitted)
Subsequently, the Decision goes to great lengths to illustrate the source of EDCA's validity,
in that as an executive agreement it fell within the parameters of the VFA and MDT, and
seamlessly merged with the whole web of Philippine law. We need not restate the
arguments here. It suffices to state that this Court remains unconvinced that EDCA
deserves treaty status under the law.
On EDCA as basing agreement
Petitioners claim that the Decision did not consider the similarity of EDCA to the previous
Military Bases Agreement (MBA) as grounds to declare it unconstitutional.34
Firstly, the Court has discussed this issue in length and there is no need to rehash the
analysis leading towards the conclusion that EDCA is different from the MBA or any basing
agreement for that matter.
Secondly, the new issues raised by petitioners are not weighty enough to overturn the legal
distinction between EDCA and the MBA.
In disagreeing with the Court in respect of the MBA's jurisdictional provisions, petitioners
cite an exchange of notes categorized as an "amendment" to the MBA, as if to say it operated
as a new treaty and should be read into the MBA.35
This misleadingly equates an exchange of notes with an amendatory treaty. Diplomatic
exchanges of notes are not treaties but rather formal communication tools on routine
agreements, akin to private law contracts, for the executive branch.36 This cannot truly
amend or change the terms of the treaty,37 but merely serve as private contracts between
the executive branches of government. They cannot ipso facto amend treaty obligations
between States, but may be treaty-authorized or treaty-implementing.38
Hence, it is correct to state that the MBA as the treaty did not give the Philippines
jurisdiction over the bases because its provisions on U.S. jurisdiction were explicit. What
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the exchange of notes did provide was effectively a contractual waiver of the jurisdictional
rights granted to the U.S. under the MBA, but did not amend the treaty itself.
Petitioners reassert that EDCA provisions on operational control, access to Agreed
Locations, various rights and authorities granted to the US "ensures, establishes, and
replicates what MBA had provided."39 However, as thoroughly and individually discussed
in Saguisag, et. al., the significant differences taken as a whole result in a very different
instrument, such that EDCA has not re-introduced the military bases so contemplated
under Article XVIII Section 25 of the Constitution.40
On policy matters
Petitioners have littered their motion with alleged facts on U.S. practices, ineffective
provisions, or even absent provisions to bolster their position that EDCA is invalid.41 In
this way, petitioners essentially ask this Court to replace the prerogative of the political
branches and rescind the EDCA because it not a good deal for the Philippines.
Unfortunately, the Court's only concern is the legality of EDCA and not its wisdom or folly.
Their remedy clearly belongs to the executive or legislative branches of government.
DREAM VILLAGE NEIGHBORHOOD ASSOCIATION, INC., represented by its
Incumbent President, GREG SERIEGO vs.
BASES DEVELOPMENT AUTHORITY
G.R. No. 192896, July 24, 2013
J. Reyes
When there is a dispute over the classification of the land occupied by several
persons and the same is submitted to Commission on the Settlement of Land Problems
(COSLAP), the Commission is mandated to refer the case to a particular agency concerned.
The law does not vest jurisdiction on the COSLAP to rule on the classification of lands.
Facts:
Petitioner Dream Village Neighborhood Association, Inc. (Dream Village) claims to
represent more than 2,000 families who have been occupying a 78,466-square meter lot in
Western Bicutan, Taguig City since 1985 "in the concept of owners continuously, exclusively
and notoriously." The lot used to be part of the Hacienda de Maricaban (Maricaban) which
was sold to the US Government and was relinquished in favor of the Philippine Government
and now called Fort Bonifacio.
President Marcos issued Proclamation No. 2476 and Proclamation No. 172 declaring certain
portions of Fort Bonifacio alienable and disposable such as Upper Bicutan, Lower Bicutan,
Signal Village and Western Bicutan Lots 1-2. When the Bases Conversion and Development
Authority (BCDA) was created, it was accorded the management of Fort Bonifacio.
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Dream Village filed a complaint with the Commission on the Settlement of Land Problems
(COSLAP) and claims that its members were unlawfully subjected to summary demolitions
by BCDA and that the area they are occupying is covered Lot 1 of Western Bicutan. They
have been occupying the area for thirty (30) years "in the concept of owners continuously,
exclusively and notoriously for several years," and have built their houses of sturdy
materials thereon and introduced paved roads, drainage and recreational and religious
facilities.
BCDA assailed the jurisdiction of COSLAP as its task is merely to coordinate with various
government offices and agencies involved in the settlement of land problems and disputes.
COSLAP ruled that the area occupied by Dream Village lies outside BCDA and that the
members’ application for sales patent should be processed.
In the appeal with the CA, it ruled that COSLAP has no jurisdiction to determine whether
the area occupied by Dream Village is available for disposition. Hence, this petition.
Issue:
Whether or not COSLAP has the authority to determine if the area occupied by Dream
Village is alienable or disposable.
Ruling:
The petition is denied.
BCDA has repeatedly asserted that the COSLAP has no jurisdiction to hear Dream Village’s
complaint. Concurring, the CA has ruled that questions as to the physical identity of Dream
Village and whether it lies in Lots 10, 11 and 13 of Swo-00-0001302, or whether Proclamation
No. 172 has released the disputed area for disposition are issues which are "manifestly
beyond the scope of the COSLAP’s jurisdiction vis-á-vis Paragraph 2, Section 3 of E.O. No.
561," rendering its Resolution a patent nullity and its pronouncements void. Thus, the CA
said, under Section 3 of E.O. No. 561, the COSLAP’s duty would have been to refer the
conflict to another tribunal or agency of government in view of the serious ramifications of
the disputed claims:
In fine, it is apparent that the COSLAP acted outside its jurisdiction in
taking cognizance of the case. It would have been more prudent if the
COSLAP has [sic] just referred the controversy to the proper forum in
order to fully thresh out the ramifications of the dispute at bar. As it is,
the impugned Resolution is a patent nullity since the tribunal which
rendered it lacks jurisdiction. Thus, the pronouncements contained
therein are void. "We have consistently ruled that a judgment for want
of jurisdiction is no judgment at all. It cannot be the source of any right
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or the creator of any obligation. All acts performed pursuant to it and
all claims emanating from it have no legal effect." (Citation omitted)
We add that Fort Bonifacio has been reserved for a declared specific public purpose under
R.A. No. 7227, which unfortunately for Dream Village does not encompass the present
demands of its members. Indeed, this purpose was the very reason why title to Fort
Bonifacio has been transferred to the BCDA, and it is this very purpose which takes the
dispute out of the direct jurisdiction of the COSLAP.
Citing the constant threat of summary eviction and demolition by the BCDA and the
seriousness and urgency of the reliefs sought in its Amended Petition, Dream Village insists
that the COSLAP was justified in assuming jurisdiction of COSLAP Case No. 99-500. But in
Longino v. Atty. General, it was held that as an administrative agency, COSLAP’s
jurisdiction is limited to cases specifically mentioned in its enabling statute, E.O. No. 561.
The Supreme Court said:
Administrative agencies, like the COSLAP, are tribunals of limited
jurisdiction and, as such, could wield only such as are specifically
granted to them by the enabling statutes.
Under the law, E.O. No. 561, the COSLAP has two options in acting on a land dispute or
problem lodged before it, namely, (a) refer the matter to the agency having appropriate
jurisdiction for settlement/resolution; or (b) assume jurisdiction if the matter is one of
those enumerated in paragraph 2(a) to (e) of the law, if such case is critical and explosive
in nature, taking into account the large number of the parties involved, the presence or
emergence of social tension or unrest, or other similar critical situations requiring
immediate action. In resolving whether to assume jurisdiction over a case or to refer the
same to the particular agency concerned, the COSLAP has to consider the nature or
classification of the land involved, the parties to the case, the nature of the questions raised,
and the need for immediate and urgent action thereon to prevent injuries to persons and
damage or destruction to property. The law does not vest jurisdiction on the COSLAP over
any land dispute or problem.
REPUBLIC OF THE PHILIPPINES, represented by ABUSAMA M. ALID, Officer-inCharge, DEPARTMENT OF AGRICULTURE - REGIONAL FIELD UNIT XII (DA-RFU
XII) vs. ABDULWAHAB A. BAYAO, OSMEÑA I. MONTAÑER, RAKMA B. BUISAN,
HELEN M. ALVAREZ, NEILA P. LIMBA, ELIZABETH B. PUSTA, ANNA MAE A.
SIDENO, UDTOG B. TABONG, JOHN S. KAMENZA, DELIA R. SUBALDO, DAYANG
W. MACMOD, FLORENCE S. TAYUAN, in their own behalf and in behalf of the
other officials and employees of DA-RFU XII
G.R. No. 179492, June 5, 2013
J. Leonen
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Where the Executive Department implements a relocation of government center,
the same is valid unless the implementation is contrary to law, morals, public law and
public policy and the Court cannot intervene in the legitimate exercise of power of the
executive. The rationale is hinged on the principle of separation of powers which ordains
that each of the three great government branches has exclusive cognizance of and is
supreme in concerns falling within its own constitutionally allocated sphere.
Facts:
On March 30, 2004, Executive Order (E.O.) No. 304 was passed transferring the regional
center of the SOCCSKSARGEN Region to Koronadal City where all the departments,
bureaus, and offices of the national government in the region shall be located. And in
compliance to the said executive order, the administrative, finance and operations base of
Department of Agriculture – Regional Field Unit XII (DA-RFU XII) was directed to transfer
to Koronadal City.
The private respondents opposed the transfer due to high cost of living in Koronadal City
and that the building where they would transfer has sub-standard foundation. However,
the order for transfer was declared which prompted the private respondents to file for the
issuance of a TRO against the transfer. The RTC granted the prayer of the private
respondents.
In the appeal with the CA, the petitioner cited that the decision of the trial court is contrary
to the pronouncement made by the Supreme Court in the case of DENR vs. DENR Region
12 Employees and that it violates the separation of powers between the executive and
judicial branches of the government. The CA dismissed the petition due to a procedural
lapse – failure of the petitioner to resort to a Motion for Reconsideration before filing the
petition. Hence, this petition.
Issue:
Whether or not the decision of the trial court violates the separation of powers between
the executive and judiciary branches of the government
Ruling:
The petition is granted.
This Court has held that while the power to merge administrative regions is not provided
for expressly in the Constitution, it is a power which has traditionally been lodged with the
President to facilitate the exercise of the power of general supervision over local
governments. This power of supervision is found in the Constitution as well as in the Local
Government Code of 1991, as follows:
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Section 25 – National Supervision over Local Government Units –
(a) Consistent with the basic policy on local autonomy, the President
shall exercise general supervision over local government units to ensure
that their acts are within the scope of their prescribed powers and
functions.
In Chiongbian v. Orbos, we held further that the power of the President to reorganize
administrative regions carries with it the power to determine the regional center.
The case of DENR v. DENR Region 12 Employees is in point. This Court held that the DENR
Secretary can reorganize validly the DENR by ordering the transfer of the DENR XII
Regional Offices from Cotabato City to Koronadal, South Cotabato. We also found as
follows:
It may be true that the transfer of the offices may not be timely
considering that: (1) there are no buildings yet to house the regional
offices in Koronadal, (2) the transfer falls on the month of Ramadan, (3)
the children of the affected employees are already enrolled in schools in
Cotabato City, (4) the Regional Development Council was not
consulted, and (5) the Sangguniang Panglungsod, through a resolution,
requested the DENR Secretary to reconsider the orders. However, these
concern issues addressed to the wisdom of the transfer rather than to
its legality. It is basic in our form of government that the judiciary
cannot inquire into the wisdom or expediency of the acts of the
executive or the legislative department, for each department is supreme
and independent of the others, and each is devoid of authority not only
to encroach upon the powers or field of action assigned to any of the
other department, but also to inquire into or pass upon the advisability
or wisdom of the acts performed, measures taken or decisions made by
the other departments. (Emphasis provided)
The transfer of the regional center of the SOCCSKSARGEN region to Koronadal City is an
executive function.
Similar to DENR v. DENR Region 12 Employees, the issues in the present case are addressed
to the wisdom of the transfer rather than to its legality. Some of these concerns are the lack
of a proper and suitable building in Koronadal to house the DA regional office, the
inconvenience of the transfer considering that the children of respondent-employees are
already enrolled in Cotabato City schools, and other similar reasons.
The judiciary cannot inquire into the wisdom or expediency of the acts of the
executive. When the trial court issued its October 9, 2006 Order granting preliminary
injunction on the transfer of the regional center to Koronadal City when such transfer was
mandated by E.O. No. 304, the lower court did precisely that. The principle of separation
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of powers ordains that each of the three great government branches has exclusive
cognizance of and is supreme in concerns falling within its own constitutionally allocated
sphere. The judiciary as Justice Laurel emphatically asserted "will neither direct nor restrain
executive or legislative action x x x. "
Finally, a verbal pronouncement to the effect that E.O. No. 304 is suspended should not
have been given weight. An executive order is valid when it is not contrary to the law or
Constitution.
REPUBLIC vs. DAVONN MAURICE C. HARP
G.R. No. 188829 | June 13, 2016 | Sereno C.J.
FACTS:
Respondent Harp, US-born and raised, was scouted for Philippine Basketball
Association and subsequently obtained Philippine citizenship. He was invited for Senate
Investigation by the Committee on Games, Amusement, and Sports; and the Committee
on Constitutional Amendments, Revision of Codes and Laws. It was to review processes
and requirements for acquisition and determination of Philippine citizenship of Fil-foreign
basketball players. It was found out that he obtained recognition as a citizen from the BI
and DOJ. Senate committee found that he used spurious documents in support of his
petition for Recognition i.e. certificate of live birth of alleged Filipino father ‘appeared to
be simulated’ and highly suspicious; they directed the BI and DOJ to examine thoroughly
the authenticity of the documents
DOJ, in DO 412, created a special committee to investigate the citizenship of PBA
players identified in the report. Respondent filed a position paper.DOJ special committee
found ground based on the NBI apparent alterations and Senate Committee to conduct
summary deportation proceeding. DOJ secretary revoke recognition of five PBA players and
directed BI to undertake summary deportation.
Respondent and PBA player Pennissi, filed a petition for Prohibition with TRO and
Preliminary Injunction in RTC to enjoin the revocation and summary deportation.
On October 26, 2004, BI ordered the summary deportation of respondent. Upon
receipt, respondent withdrew the petition for prohibition and filed a petition for review
with injunction before the CA. CA granted the petition and set aside the deportation order
but did not rule on citizenship of respondent due to incorrect resort to Rule 43 to assail the
DOJ resolution.
ISSUE:
Whether or not the DOJ erroneously revoked the recognition to respondent. YES.
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RULING:
The Court is aware that respondent has failed to appeal the CA's dismissal of his
Petition insofar as it refers to the DOJ Resolution. While we affirm the doctrine that the
resolutions of the DOJ cannot be challenged via a petition for review under Rule 43, the
Court believes that the Summary Deportation Order is necessarily intertwined with the
DOJ Resolution. The propriety of the deportation proceedings against respondent cannot
be determined without passing upon the DOJ's findings on his citizenship.
Finality of the Recognition
Petitioners, however, are correct in saying that the recognition granted to
respondent has not attained finality. Res judicata only applies once a finding of citizenship
is affirmed by the Court in a proceeding in which: (a) the person whose citizenship is
questioned is a party; (b) the person's citizenship is raised as a material issue; and (c) the
Solicitor General or an authorized representative is able to take an active part. Since
respondent's citizenship has not been the subject of such a proceeding, there is no obstacle
to revisiting the matter in this case
Validity of DOJ resolution
As in any administrative proceeding, the exercise of the power to revoke a certificate
of recognition already issued requires the observance of the basic tenets of due process. At
the very least, it is imperative that the ruling be supported by substantial evidence in view
of the gravity of the consequences that would arise from a revocation.
In this case, the DOJ relied on certain pieces of documentary and testimonial
evidence to support its conclusion that respondent is not a true citizen of the Philippines:
(a) the findings of the Senate committees and the NBI that alterations were made in the
Certificate of Live Birth of Manuel; (b) the discrepancy between the middle initial found in
Manuel's birth certificate and that which appears in respondent's affidavit of citizenship;
(c) the results of the Senate's field investigations of respondent's relatives; and (d) a
Certification from the Secretary of Barangay Alicia, Bago Bantay, Quezon City, stating that
"Manuel Arce Gonzalez" was not included in the2002 list of voters in that barangay.
Court finds these pieces of evidence inadequate to warrant revocation of recognition.
First, the reports relied upon by the DOJ as evidence of the alleged alterations made
in Manuel's Certificate of Live Birth are far from conclusive. From Senate Committee
Report No. 256 dated 7 August 2003, it appears that the supposed discovery of alterations
was based on a mere photocopy of Manuel's Certificate of Live Birth and as stated it
“appeared to be simulated.” The Court cannot rely on this inconclusive finding. In the same
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way that forgery cannot be determined on the basis of a comparison of photocopied
instruments.
We note that not only did petitioners fail to submit a copy of the NBI report to the
Court; the quoted portions of the report in the Petition and the DOJ Resolution also failed
to identify the specimen used by the NBI for its examination. Because of the absence of
these crucial facts from the records of the case, the purported contents of the report are
unsupported assertions to which the Court can give very little weight.
It must be emphasized, however, that Manuel's birth certificate, a public document
and an official record in the custody of the Civil Registrar, enjoys the presumption of
regularity and authenticity. 82 To defeat these presumptions, the party making the
allegation must present clear, positive and convincing evidence ofalteration.83 For obvious
reasons, this burden cannot be discharged by the mere submission of an inconclusive
report from the Senate Committee and the presentation of an excerpt of an NBI report on
the purported alterations.
Second, the veracity of the claim of citizenship is certainly not negated by the results
of the field investigation of the Senate, specifically its failure to obtain a record of the
marriage between the grandparents of respondent and its inability to find any of his
relatives i.e. marriage not recorded, relatives may have transferred. As to the Certification
issued by the Secretary of Barangay Alicia, Bago Bantay, Quezon City, the Court finds it
irrelevant. Since Manuel became a naturalized American citizen on 10 November 1981, 84
it is only logical that his name no longer appears in the 2002 list of voters in the barangay.
Finally, the inconsistency between his middle initial in his birth certificate and that which
appears in the affidavit of citizenship submitted by respondent has been adequately
explained as a mere typographical error.
Without more, the Court finds no reason to set aside the rule that public documents,
particularly those related to the civil register, are ''prima facie evidence of the facts therein
contained.
Validity of Summary Deportation Order
It is settled that summary deportation proceedings cannot be instituted by the BI
against citizens of the Philippines.86 In Board of Commissioners v. Dela Rosa, the Court
reiterated the doctrine that citizens may resort to courts for protection if their right to live
in peace, without molestation from any official or authority, is disturbed in a deportation
proceeding.
Since respondent has already been declared and recognized as a Philippine citizen
by the BI and the DOJ, he must be protected from summary deportation proceedings.
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The DOJ and the BI relied on inconclusive evidence – in particular, on questionable
reports based on photocopied documents – to take away the citizenship of respondent and
even justify his deportation. These acts violate our basic rules on evidence and, more
important, the fundamental right of every person to due process. Furthermore, considering
the gravity of the allegation that respondent submitted forged documents to support his
claim, government institutions and agencies cannot make this accusation irresponsibly
Appeal not moot and academic by voluntary departure.
Petitioners allege that it is no longer necessary to resolve the appeal of respondent
because he has voluntarily departed from the Philippines and is now beyond the legal
processes of the country.
As explained by this Court in Gonzalez v. Pennisi, Lewin involved an alien who
entered the Philippines as a temporary visitor and eventually left without any assurance
that he would be allowed to return to the country. For obvious reasons, the ruling in that
case cannot be applied to others whose Philippine citizenship has also been previously
recognized and whose intention to return to the country has likewise been manifested.
IRIS KRISTINE BALOIS ALBERTO and BENJAMIN D. BALOIS vs.
THE HON. COURT OF APPEALS, ATTY. RODRIGO A. REYNA, ARTURO S.
CALIANGA, GIL ANTHONY M. CALIANGA, JESSEBEL CALIANGA, and GRACE
EVANGELISTA
G.R. No. 182130
THE SECRETARY OF JUSTICE, THE CITY PROSECUTOR OF MUNTINLUPA, THE
PRESIDING JUDGE OF THE REGIONAL TRIAL COURT OF MUNTINLUPA CITY,
BENJAMIN D. BALOIS, and IRIS KRISTINE BALOIS ALBERTO vs.
ATTY. RODRIGO A. REYNA, ARTURO S. CALIANGA, GIL ANTHONY M. CALIANGA,
JESSEBEL CALIANGA, and GRACE EVANGELISTA
G.R. No. 182132, June 19, 2013
J.Perlas-Bernabe
Being an executive function, the findings of public prosecutors and the DOJ on the
existence or non-existence of probable cause for the purpose of filing criminal informations
cannot be subject of judicial review, unless such findings are tainted with grave abuse of
discretion, amounting to lack or excess of jurisdiction.
Facts:
Iris Alberto, a minor when the first and second offenses were committed, alleged that she
was raped in three separate instances by the Gil Calianga and that the sister of the
respondent, Jessebel Calianga together with Grace Evangelista, Atty. Rodrigo Reyna and
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Arturo Calianga conspired to abduct her and deprive her of her freedom. She also alleged
that she was also raped by Atty. Rodrigo Reyna and Arturo Calianga in June-November
2003, when she was no longer a minor.
The grandfather of the victim, Benjamin Balois, filed an action for Forcible Abduction with
Rape, Serious Illegal Detention and Child Abuse against Gil Calianga and an action for
conspiracy to commit Serious Illegal Detention against Atty. Rodrigo Reyna, Arturo
Calianga, Jessebel Calianga and Grace Evangelista. Finally, Atty. Reyna and Arturo were
also included in the action for Child Abuse.
The City Prosecutor of Muntinlupa dismissed the charges against Gil, Atty. Reyna, Jessebel
and Grace for Rape and Serious Illegal Detention for insufficiency of evidence, but Gil was
charged for Child Abuse for having sexual intercourse with a minor. The dismissal was also
due to the contradicting testimonies of Iris, the presence of love letters and text messages
indicating that there was an intimate relationship between Iris and Gil. Also, the prosecutor
considered that there was a news program entitled “Magkasintahan Pala” which tackled
the relationship between Gil and Iris.
Iris and Benjamin appealed with the DOJ which found probable cause to charge Gil of Rape
in relation to R.A. 7610, Gil, Jessebel, Atty. Reyna and Grace for (1) count each of Serious
Illegal Detention with Rape and Gil, Atty. Reyna and Arturo for (1) count of Forcible
Abduction and Rape. The DOJ stated that the sweetheart defense raised by Gil was doubtful
since he was properly identified by Iris as the culprit.
In the petition with the CA, it ruled that the DOJ gravely abused its discretion in declaring
that there was probable cause and in disregarding the overwhelming, credible and
convincing evidence which negated the charges filed against respondents.
Issue:
Whether or not the CA erred in revoking the DOJ resolutions
Ruling:
The petition is partly granted.
It is well-settled that courts of law are precluded from disturbing the findings of public
prosecutors and the DOJ on the existence or non-existence of probable cause for the
purpose of filing criminal informations, unless such findings are tainted with grave abuse
of discretion, amounting to lack or excess of jurisdiction. The rationale behind the general
rule rests on the principle of separation of powers, dictating that the determination of
probable cause for the purpose of indicting a suspect is properly an executive function;
while the exception hinges on the limiting principle of checks and balances, whereby the
judiciary, through a special civil action of certiorari, has been tasked by the present
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Constitution "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."
To note, probable cause, for the purpose of filing a criminal information, exists when the
facts are sufficient to engender a well-founded belief that a crime has been committed and
that the respondent is probably guilty thereof. It does not mean "actual and positive cause"
nor does it import absolute certainty. Rather, it is merely based on opinion and reasonable
belief. Accordingly, probable cause does not require an inquiry into whether there is
sufficient evidence to procure a conviction; it is enough that it is believed that the act or
omission complained of constitutes the offense charged.
In order to engender a well-founded belief that a crime has been committed, and to
determine if the suspect is probably guilty of the same, the elements of the crime charged
should, in all reasonable likelihood, be present. This is based on the principle that every
crime is defined by its elements, without which there should be, at the most, no criminal
offense.
Guided by the foregoing considerations, the Court therefore holds as follows:
First, the DOJ Secretary did not gravely abuse his discretion in finding that probable cause
exists for the crime of Rape against Gil, Atty. Reyna and Arturo.
In particular, with respect to Gil, Iris averred that on December 28, 2001, Gil drugged her
and thereafter, through force and intimidation, succeeded in having sexual intercourse
with her. She also claimed that on April 23, 2002, Gil, again through force and intimidation,
had carnal knowledge of her in the tree house. Likewise, beginning June 27, 2003, Gil raped
her almost every day up until her rescue on November 9 of the same year.
In defense, records show that Gil never denied any of the above-stated sexual encounters,
but merely maintained the he and Iris were sweethearts, as shown by several love letters
and text messages between them.
Ruling on the matter, the Court finds no grave abuse of discretion on the part of the DOJ
Secretary, as the elements of rape, more likely than not, appear to be present.
The first and second elements of the crime are beyond dispute as Gil does not deny having
carnal knowledge with Iris. Anent the third element of force and intimidation, Iris’s version
of the facts, as well as Gil’s sole reliance on the sweetheart defense, leads the Court to
believe that the said element, in all reasonable likelihood, appears to be present,
considering that: (a) mere denial cannot prevail over the positive testimony of a witness; (b)
the sweetheart theory does not, by and of itself, negate the commission of rape; and (c) the
fact that Iris was a minor during the foregoing incidents casts serious doubt on the efficacy
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of the consent purportedly given by her, especially in view of Gil’s esteemed position of
being a priest of the same congregation of which Iris belongs to.
Similarly, the Court finds no grave abuse of discretion in the DOJ Secretary’s finding of
probable cause for Rape against Atty. Reyna and Arturo, but only insofar as the June 23 to
November 9, 2003 incidents are concerned.
The January 14, 2004 TSN reveals that Iris categorically declared in open court that she was
raped by Atty. Reyna and Arturo during the aforesaid five month period. It is a standing
rule that due to the nature of the commission of the crime of rape, the testimony of the
victim may be sufficient to convict the accused, provided that such testimony is credible,
natural, convincing and consistent with human nature and the normal course of things.
Applying the same, the Court deems it prudent to test the credibility of Iris’s testimony
during trial, in which her demeanor and deportment would be properly observable, and
likewise be subject to cross-examination.
On the contrary, there appears to be no ample justification to support the finding of
probable cause against Atty. Reyna and Arturo, with respect to the rape incidents of
December 28, 2001 and April 23, 2002, as well as against Jessebel and Grace for all three (3)
incidents.
As may be gleaned from the Amended Resolution, the DOJ Secretary indicted Atty. Reyna,
Arturo, Jessebel and Grace for these incidents only by reason of conspiracy. Yet, other than
his general imputation thereof, the DOJ Secretary never provided any rational explanation
for his finding of conspiracy against the aforementioned respondents. The rule is that
conspiracy must be proved as clearly and convincingly as the commission of the offense
itself. It can be inferred from and established by the acts of the accused themselves when
said acts point to a joint purpose and design, concerted action and community of interests.
In this case, the Amended Resolution is bereft of any showing as to how the particular acts
of the foregoing respondents figured into the common design of raping Iris and as such,
the Court finds no reason to charge them for the same.
Therefore, finding no grave abuse of discretion in the following respects, the Court upholds
the DOJ Secretary’s finding of probable cause for the crime of Rape against Gil for all three
(3) rape incidents and against Atty. Reyna and Arturo for the incidents of June 23 to
November 9, 2003.
At this juncture, the Court observes that the DOJ charged Gil for Rape in relation to Child
Abuse under Section 5(b), Article III of RA 7610 on account of the December 28, 2001 and
April 23, 2002 incidents. Existing jurisprudence, however, proscribes charging an accused
for both crimes, rather, he may be charged only for either.
Notably, Gil, as well as Atty. Reyna and Arturo, cannot be charged for Child Abuse with
respect to the June 23 to November 9, 2003 incidents since Iris had ceased to be a minor by
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that time. Likewise, Atty. Reyna and Arturo cannot be indicted for Child Abuse in
connection with the December 28, 2001 and April 23, 2002 incidents as there appears to be
no sufficient bases to support the DOJ Secretary’s finding of conspiracy.
Second, the Court further holds that the DOJ Secretary gravely abused his discretion in
finding that probable cause exists for the crime of Serious Illegal Detention.
Aside from Iris’s bare allegations, records are bereft of any evidence to support a finding
that Iris was illegally detained or restrained of her movement. On the contrary, based on
Pros. Lim’s Resolution dated November 8, 2004, several disinterested witnesses had
testified to the fact that Iris was seen freely roaming in public with Gil, negating the
quintessential element of deprivation of liberty.
Third, the DOJ Secretary also committed grave abuse of discretion in finding probable
cause for the crime of Forcible Abduction with Rape.
As earlier discussed, there lies no evidence to prove that Iris was restrained of her liberty
during the period of her captivity from June 23 to November 9, 2003 thus, denying the
element of abduction. More importantly, even if it is assumed that there was some form
of abduction, it has not been shown – nor even sufficiently alleged – that the taking was
done with lewd designs. Lust or lewd design is an element that characterizes all crimes
against chastity, apart from the felonious or criminal intent of the offender. As such, the
said element must be always present in order that they may be so considered as a crime of
chastity in contemplation of law.
MARIA CAROLINA P. ARAULLO, CHAIRPERSON, BAGONG ALYANSANG
MAKABAYAN, et al. vs. BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES, et al.
G.R. No. 209287 (Consolidated), July 01, 2014, J. Bersamin
The Executive cannot circumvent the prohibition by Congress of an expenditure for a
Program, Activity or Project (PAP) by resorting to either public or private funds. Nor could
the Executive transfer appropriated funds resulting in an increase in the budget for one PAP,
for by so doing the appropriation for another PAP is necessarily decreased. The terms of both
appropriations will thereby be violated.
It is true that the General Appropriations Act provides for impoundment. Philconsa v.
Enriquez declined to rule on its constitutional validity. Until a ripe and actual case, its
constitutional contours have yet to be determined. Certainly, there has been no specific
expenditure under the umbrella of the DAP alleged in the petition and properly traversed by
respondents that would allow us the proper factual framework to delve into this issue. Any
definitive pronouncement on impoundment as constitutional doctrine will be premature,
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advisory, and, therefore, beyond the province of review in these cases. J. Leonen, Separate
Concurring Opinion
“When the President approves the wholesale withdrawal of unobligated allotments by
invoking the blanket authority of [Sec. 38 vis-à-vis] the general policy impetus to ramp up
government spending, without any discernible explanation behind a particular PAP
expenditure’s suspension or stoppage, or any clarification as to whether the funds withdrawn
then pooled would be used either for realignment or only to cover a fiscal deficit, or for
augmentation (in this latter case, necessitating therefor the determination of whether said
funds are savings or not), a constitutional conundrum arises.” [With this in mind, it is
respectfully submitted] “that the with-drawal of unobligated allotments not considered as
savings, the augmentation, or, despite the funds being considered as savings, the
augmentation of items cross-border or the funding of PAPs without an existing appropriation
cover are unconstitutional acts and/practices taken under the DAP.” J. Perlas-Bernabe,
Separate Concurring Opinion
Facts:
The controversy, in the present case, surfaced at the fore of public consciousness
when Sen. Jinggoy Estrada in his privilege speech revealed that some Senators, including
himself, had been allotted an additional PhP50 Million each as incentive for voting in favor
of the impeachment of Chief Justice Renato Corona. In response, DBM Secretary Florencio
Abad explained that the allocations were part of the Disbursement Acceleration Program
(DAP) devised to accelerate government spending. He further explained that the funds
under the DAP were sourced from (1) unreleased appropriations under Personnel Services;
(2) Unprogrammed Fund; (3) carry-over appropriations unreleased from the previous year;
and (4) budget for slow-moving items or projects that had been realigned to support fasterdisbursing projects.
The DBM listed the following as the legal bases for the DAP’s use of savings, namely:
(1) Sec. 25(5), Article VI of the 1987 Constitution, which granted to the President the
authority to augment an item for his office in the general appropriations law; (2) Sec. 49
(Authority to Use Savings for Certain Purposes) and Sec. 38 (Suspension of Expenditure
Appropriations), Chapter 5, Book VI of Executive Order (EO) No. 292 (Administrative Code
of 1987); and (3) the General Appropriations Acts (GAAs) of 2011, 2012 and 2013, particularly
their provisions on the (a) use of savings; (b) meanings of savings and augmentation; and
(c) priority in the use of savings. As for the use of Unprogrammed Fund under the DAP,
the DBM cited as legal bases the special provisions on Unprogrammed Fund contained in
the GAAs of 2011, 2012, and 2013.
Petitioners, representing various national, sectoral and public interest groups,
through petitions for certiorari, prohibition and mandamus, seek to have the Disbursement
Acceleration Program (DAP), National Budget Circular (NBC) No. 541 and related
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issuances, being implemented by respondent officials, and the consequent and related acts
thereto declared ultra vires.
Issues:
A. Whether or not the DAP violates Sec. 29, Art. VI of the 1987 Constitution, which
provides: “No money shall be paid out of the Treasury except in pursuance of an
appropriation made by law.”
B. Whether or not the DAP, NBC No. 541, and all other executive issuances allegedly
implementing the DAP violate Sec. 25(5), Art. VI of the 1987 Constitution insofar as:
(a) They treat the unreleased appropriations and unobligated allotments withdrawn
from government agencies as “savings” as the term is used in Sec. 25(5), in relation
to the provisions of the GAAs of 2011, 2012 and 2013;
(b) They authorize the disbursement of funds for projects or programs not provided
in the GAAs for the Executive Department; and
(c) They “augment” discretionary lump sum appropriations in the GAAs.
Ruling:
A. Whether or not the DAP violates Sec. 29, Art. VI of the 1987 Constitution, which
provides: “No money shall be paid out of the Treasury except in pursuance of an
appropriation made by law.”
Taken together, all the issuances showed how the DAP was to be implemented and
funded, that is — (1) by declaring “savings” coming from the various departments and
agencies derived from pooling unobligated allotments and withdrawing unreleased
appropriations; (2) releasing unprogrammed funds; and (3) applying the “savings” and
unprogrammed funds to augment existing PAPs or to support other priority PAPs.
DAP was not an appropriation measure; hence, no appropriation law was
required to adopt or to implement it
The DAP was a government policy or strategy designed to stimulate the economy
through accelerated spending. In the context of the DAP’s adoption and implementation
being a function pertaining to the Executive as the main actor during the Budget
Execution Stage under its constitutional mandate to faithfully execute the laws, including
the GAAs, Congress did not need to legislate to adopt or to implement the DAP. Congress
could appropriate but would have nothing more to do during the Budget Execution
Stage. Indeed, appropriation was the act by which Congress “designates a particular fund,
or sets apart a specified portion of the public revenue or of the money in the public treasury,
to be applied to some general object of governmental expenditure, or to some individual
purchase or expense.” As pointed out in Gonzales v. Raquiza: ‘“In a strict sense,
appropriation has been defined ‘as nothing more than the legislative authorization
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prescribed by the Constitution that money may be paid out of the Treasury,’ while
appropriation made by law refers to ‘the act of the legislature setting apart or assigning to
a particular use a certain sum to be used in the payment of debt or dues from the State to
its creditors.’”
On the other hand, the President, in keeping with his duty to faithfully execute the
laws, had sufficient discretion during the execution of the budget to adapt the budget to
changes in the country’s economic situation. He could adopt a plan like the DAP for the
purpose. He could pool the savings and identify the PAPs to be funded under the DAP. The
pooling of savings pursuant to the DAP, and the identification of the PAPs to be funded
under the DAP did not involve appropriation in the strict sense because the money had
been already set apart from the public treasury by Congress through the GAAs. In such
actions, the Executive did not usurp the power vested in Congress under Section 29(1),
Article VI of the Constitution.
B. Whether or not the DAP, NBC No. 541, and all other executive issuances allegedly
implementing the DAP violate Sec. 25(5), Art. VI of the 1987 Constitution insofar as:
Unreleased appropriations and withdrawn unobligated allotments under the
DAP were not savings, and the use of such appropriations contravened Section
25(5), Article VI of the 1987 Constitution.
Notwithstanding our appreciation of the DAP as a plan or strategy validly adopted
by the Executive to ramp up spending to accelerate economic growth, the challenges posed
by the petitioners constrain us to dissect the mechanics of the actual execution of the DAP.
The management and utilization of the public wealth inevitably demands a most careful
scrutiny of whether the Executive’s implementation of the DAP was consistent with the
Constitution, the relevant GAAs and other existing laws.
a. Although executive discretion and flexibility are necessary in the
execution of the budget, any transfer of appropriated funds should conform to
Section 25(5), Article VI of the Constitution.
Executive discretion is necessary at that stage to achieve a sound fiscal
administration and assure effective budget implementation. The heads of offices,
particularly the President, require flexibility in their operations under performance
budgeting to enable them to make whatever adjustments are needed to meet established
work goals under changing conditions. In particular, the power to transfer funds can give
the President the flexibility to meet unforeseen events that may otherwise impede the
efficient implementation of the PAPs set by Congress in the GAA.
Congress has traditionally allowed much flexibility to the President in allocating
funds pursuant to the GAAs, particularly when the funds are grouped to form lump sum
accounts. It is assumed that the agencies of the Government enjoy more flexibility when
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the GAAs provide broader appropriation items. This flexibility comes in the form of policies
that the Executive may adopt during the budget execution phase. The DAP – as a strategy
to improve the country’s economic position – was one policy that the President decided to
carry out in order to fulfill his mandate under the GAAs.
Denying to the Executive flexibility in the expenditure process would be
counterproductive. Were Congress to control expenditures by confining
administrators to narrow statutory details, it would perhaps protect its power of
the purse but it would not protect the purse itself. The realities and complexities of
public policy require executive discretion for the sound management of public
funds.
In the case of the President, the power to transfer funds from one item to another
within the Executive has not been the mere offshoot of established usage, but has emanated
from law itself. Xxx [it is] evident that the Constitutional Commission included Section
25(5), Article VI of the 1987 Constitution, to keep a tight rein on the exercise of the power
to transfer funds appropriated by Congress by the President and the other high officials of
the Government named therein. Accordingly, the Court should interpret Section 25(5),
supra, in the context of a limitation on the President’s discretion over the appropriations
during the Budget Execution Phase.
b. Requisites for the valid transfer of appropriated funds under Section 25(5),
Article VI of the 1987 Constitution
The transfer of appropriated funds, to be valid under Section 25(5), supra, must be
made upon a concurrence of the following requisites, namely:
(1) There is a law authorizing the President, the President of the Senate, the Speaker
of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of
the Constitutional Commissions to transfer funds within their respective offices;
(2) The funds to be transferred are savings generated from the appropriations for
their respective offices; and
(3) The purpose of the transfer is to augment an item in the general appropriations
law for their respective offices.
b.1. First Requisite –GAAs of 2011 and 2012 lacked valid provisions to authorize
transfers of funds under the DAP; hence, transfers under the DAP were
unconstitutional.
The GAAs of 2011 and 2012 were textually unfaithful to the Constitution for not
carrying the phrase “for their respective offices” contained in Section 25(5), supra. The
impact of the phrase “for their respective offices” was to authorize only transfers of funds
within their offices (i.e., in the case of the President, the transfer was to an item of
appropriation within the Executive). The provisions carried a different phrase (“to augment
any item in this Act”), and the effect was that the 2011 and 2012 GAAs thereby literally
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allowed the transfer of funds from savings to augment any item in the GAAs even if the
item belonged to an office outside the Executive. To that extent did the 2011 and 2012 GAAs
contravene the Constitution. At the very least, the aforequoted provisions cannot be used
to claim authority to transfer appropriations from the Executive to another branch, or to a
constitutional commission.
b.2. Second Requisite – There were no savings from which funds could be
sourced for the DAP.
The power to augment was to be used only when the purpose for which the funds
had been allocated were already satisfied, or the need for such funds had ceased to exist,
for only then could savings be properly realized. This interpretation prevents the Executive
from unduly transgressing Congress’ power of the purse.
The withdrawal and transfer of unobligated allotments and the pooling of
unreleased appropriations were invalid for being bereft of legal support. Nonetheless, such
withdrawal of unobligated allotments and the retention of appropriated funds cannot be
considered as impoundment.
Impoundment refers to a refusal by the President, for whatever reason, to spend
funds made available by Congress. It is the failure to spend or obligate budget authority of
any type. Impoundment under the GAA is understood to mean the retention or deduction
of appropriations. The 2011 GAA authorized impoundment only in case of unmanageable
National Government budget deficit.
The withdrawal of unobligated allotments under the DAP should not be regarded as
impoundment because it entailed only the transfer of funds, not the retention or deduction
of appropriations.
It is relevant to remind at this juncture that the balances of appropriations that
remained unexpended at the end of the fiscal year were to be reverted to the General Fund.
This was the mandate of Section 28, Chapter IV, Book VI of the Administrative Code. The
Executive could not circumvent this provision by declaring unreleased appropriations and
unobligated allotments as savings prior to the end of the fiscal year.
b.3. Third Requisite – No funds from savings could be transferred under the
DAP to augment deficient items not provided in the GAA
It is the President who proposes the budget but it is Congress that has the final say
on matters of appropriations. For this purpose, appropriation involves two governing
principles, namely: (1) “a Principle of the Public Fisc[sic], asserting that all monies received
from whatever source by any part of the government are public funds;” and (2) “a Principle
of Appropriations Control, prohibiting expenditure of any public money without legislative
authorization.” To conform with the governing principles, the Executive cannot circumvent
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the prohibition by Congress of an expenditure for a Program, Activity or Project (PAP) by
resorting to either public or private funds. Nor could the Executive transfer appropriated
funds resulting in an increase in the budget for one PAP, for by so doing the appropriation
for another PAP is necessarily decreased. The terms of both appropriations will thereby be
violated.
b.4. Third Requisite – Cross-border augmentations from savings were
prohibited by the Constitution
By providing that the President, the President of the Senate, the Speaker of the
House of Representatives, the Chief Justice of the Supreme Court, and the Heads of the
Constitutional Commissions may be authorized to augment any item in the GAA “for their
respective offices,” Section 25(5), supra, has delineated borders between their offices, such
that funds appropriated for one office are prohibited from crossing over to another office
even in the guise of augmentation of a deficient item or items. Thus, the Court calls such
transfers of funds cross-border transfers or cross-border augmentations.
To be sure, the phrase “respective offices” used in Section 25(5), supra, refers to the
entire Executive, with respect to the President; the Senate, with respect to the Senate
President; the House of Representatives, with respect to the Speaker; the Judiciary, with
respect to the Chief Justice; the Constitutional Commissions, with respect to their
respective Chairpersons.
Regardless of the variant characterizations of the cross-border transfers of funds,
the plain text of Section 25(5), supra, disallowing crossborder transfers was disobeyed.
Cross-border transfers, whether as augmentation, or as aid, were prohibited under Section
25(5), supra.
J. Leonen, Separate Concurring Opinion
1. YES, realignment involves different considerations and effects compared with
augmentation.
Any expenditure beyond the maximum amount provided for the item in the
appropriations act is an augmentation of that item. It amounts to a transfer of
appropriation. This is generally prohibited except for instances when “upon implementation
or subsequent evaluation of needed resources, [the appropriation for a PAP existing in the
GAA] is determined to be deficient.” In which case, all the conditions provided in [Sec. 25(5),
Article VI] of the Constitution must first be met.
The limits defined in this case only pertain to the power of the President — and by
implication, other constitutional offices — to augment items of appropriation. There is also
the power of the President to realign allocations of funds to another item — without
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augmenting that item — whenever revenues are insufficient in order to meet the priorities
of government.
Realignment of the allocation of funds is different from the concept of augmentation
contained in Sec. 25(5), Article VI of the Constitution.
In realignment of allocation of funds, the President, upon recommendation of his
subalterns like the DBM, finds that there is an item in the appropriations act that needs to
be funded. However, it may be that the allocated funds for that targeted item are not
sufficient. He, therefore, moves allocations from another budget item to that item but only
to fund the deficiency: that is, the amount needed to fill in so that the maximum amount
authorized to be spent for that item in the appropriations act is actually spent.
The appropriated amount is not increased. It is only filled in order that the item’s
purpose can be fully achieved with the amount provided in the appropriations law. There
is no augmentation that happens.
In such cases, there is no need to identify savings. The concept of savings is only
constitutionally relevant as a requirement for augmentation of items. It is the executive
who needs to fully and faithfully implement sundry policies contained in many statutes and
needs to decide on priorities, given actual revenues.
The flexibility of realignment is required to allow the President to fully exercise his
basic constitutional duty to faithfully execute the law and to serve the public “with utmost
responsibility . . . and efficiency.” Unlike in augmentation, which deals with increases in
appropriations, realignment involves determining priorities and deals with allotments
without increases in the legislated appropriation. In realignment, therefore, there is no
express or implied amendment of any of the provisions of the Appropriations Act. The
actual expenditure is only up to the amount contained in the law.
2. NO, the power of impoundment is not constitutionally recognized and in the
instant case the Court cannot make a decisive pronouncement to this effect.
When there are reasons apparent to the President at the time when the [GAA] is
submitted for approval, then he can use his line item veto. However, at a time when he
executes his priorities, suspension of projects is a valid legal remedy. Suspension is not
impoundment. Besides, the prohibition against impoundment is not yet constitutional
doctrine.
It is true that the GAA provides for impoundment. Philconsa v. Enriquez declined to
rule on its constitutional validity. Until a ripe and actual case, its constitutional contours
have yet to be determined. Certainly, there has been no specific expenditure under the
umbrella of the [DAP] alleged in the petition and properly traversed by respondents that
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would allow us the proper factual framework to delve into this issue. Any definitive
pronouncement on impound-ment as constitutional doctrine will be premature, advisory,
and, therefore, beyond the province of review in these cases.
Impoundment is not mentioned in the Constitution. At best, it can be derived either
from the requirement for the President to faithfully execute the laws with reference to the
[GAA]. Alternatively, it can be implied as a limitation imposed by the legislature in relation
to the preparation of a budget. The constitutional authority that will serve as the standpoint
to carve out doctrine, thus, is not yet clear.
3. NO, the cross-border transfers effected by the President, thru DAP, is not in
accordance with the pertinent constitutional provision.
Sec. 25(5), Article VI requires that for any augmentation to be valid, it must be for
an existing item. Furthermore, with respect to the President, the augmentation may only
be for items within the executive department. The power to augment under this provision
is qualified by the words, “respective offices.” This means that the President and the other
officials enumerated can only augment items within their departments. In other words,
augmentation of items is allowed provided that the source department and the recipient
department are the same.
Transfer of funds from one department to other departments had already been
declared as unconstitutional in Demetria v. Alba. Moreover, a corollary [pronouncement of
the Court] in Gonzales v. Macaraig, Jr. that “[t]he doctrine of separation of powers is in no
way endangered because the transfer is made within a department (or branch of government)
and not from one department (branch) to another” is that transfers across departments are
unconstitutional for being violative of the doctrine of separation of powers.
There are admissions in the entries contained in the evidence packets that
presumptively show that there have been at least two (2) instances of augmentation by the
executive of items outside its department. If these are indeed validated upon the proper
audit to have been actually expended, then such acts are unconstitutional.
J. Perlas-Bernabe, Separate Concurring Opinion
The herein Separate Concurring Opinion considers the concept of augmentation as
pertaining to the delegated legislative authority, conferred by law (Sec. 25(5), Article VI of
the Constitution, to the various heads of government to transfer appropriations within
their respective offices. The withdrawal of allotments and pooling of funds by the Executive
Depart-ment for realignment and/or simple utilization for projects without sufficient
funding due to fiscal deficits in case of suspension under Sections 38 and 39, Chapter 5,
Book VI of the Adminis-trative Code is not an augmentation within the ambit of Sec. 25(5).
To expound, it is first essential to remember that an appropriation is basically made
up of two (2) legislative parameters, namely: (a) the amount to be spent (or, in other words,
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the statutory value); and (b) the purpose for which the amount is to be spent (or, in other
words, the statutory purpose). The word ‘augmentation,’ in common parlance, means ‘[t]he
action or process of making or becoming greater in size or amount.’ Accordingly, by the
import of this word ‘augmentation,’ the process under [Sec. 25(5)] would then connote
changes in the selected appropriation items’ statutory values, and not of its statutory
purposes. [Resultantly], augmentation would lead to the increase of the statutory value of
one appropriation item, and a decrease in another.
The incremental value coming from one appropriation item to effectively and
actually increase the statutory value of another appropriation item is what [Sec. 25(5)]
refers to as savings.” A programmed appropriation item produces savings when the said
item becomes defunct, due to any of the three circumstances provided under the pertinent
GAA, thereby freeing-up either totally or partially the funds initially allotted thereto. When
this happens, “the Constitution allows augmentation as a form of re-appropriation so that
the various heads of go-vernment may, by law, work with existing but defunct items of
appropriation and practically utilize the funds allotted therefor as ‘savings’ in order to
augment another appropriation item which has been established to be deficient xxx.”
When the Executive Department exercises its power of fiscal management through,
for instance, withdrawing unobligated allotments and pooling them under Sections 38 and
39, Chapter 5, Book VI of the Administrative Code xxx, the President acts within his sphere
of authority for he is merely managing the execution of the budget taking into account
existing fiscal deficits as well as the circumstances that occur during actual PAP
implementation However, [the President] must always observe and comply with existing
constitutional and statutory limitations when doing so – that is, his directives in such
respect should not authorize or allow expenditures for an un-appropriated purpose nor
sanction overspending or the modification of the purpose of the appropriation item, or
even the suspension or stoppage of any expenditure without satisfying the public interest
requirement, else he would be substituting his will over that of Congress and thereby
violate the separation of powers principle, not to mention, act against his mandate to
faithfully execute the laws.
Furthermore, when the President conducts fiscal management through suspending
and realigning expenditures under Sec. 38, he is not technically augmenting according to
Sec. 25(5) since the legislative parameters of the particular appropriation item are not
changed. In contrast, “when he permanently stops expenditures under [Sec. 38 in the interest
of the public], he, in relation to the first GAA parameter on completion, final discontinuance
and abandonment [of a PAP] generates savings. The permanent stoppage of expenditures
may then be treated as a precursor act for either: (a) augmentation, when the statutory value
of the target appropriation item resultantly increases (in this case, savings are used under
[Sec. 39 in relation to Sec. 25(5)] to address a deficiency in the appropriation item itself, and
not only the funds allocated therefor); or (b) for simple utilization, when the statutory value
of the target appropriation item is not increased and the PAP covered by the said item only
needs sufficient funding (in this case, savings are used under [Sec. 39] only to address a fiscal
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deficit – that is, the actual funds allocated for the item to be implemented or under
implementation were initially inadequate, which is why the funds allocated to the defunct
item [now, as savings] would be utilized for the former). Notably, the budget deliberations
prior to the GAA’s passage only account for projected revenues, and, hence, do not reflect the
government’s actual financial position throughout the course of the year. This is why when
the public interest so requires xxx the President, under the authority of [Sec. 38], is given the
power to suspend/stop expenditures which xxx must always be exercised consistent with his
constitutional mandate to faithfully execute the laws.”
When the President approves the wholesale withdrawal of unobligated allotments
by invoking the blanket authority of [Sec. 38 vis-à-vis] the general policy impetus to ramp
up government spending, without any discernible explanation behind a particular PAP
expenditure’s suspension or stoppage, or any clarification as to whether the funds
withdrawn then pooled would be used either for realignment or only to cover a fiscal
deficit, or for augmentation (in this latter case, necessitating therefor the determination of
whether said funds are savings or not), a constitutional conundrum arises”. With this in
mind, it is respectfully submitted “that the with-drawal of unobligated allotments not
considered as savings, the augmentation, or, despite the funds being considered as savings,
the augmentation of items cross-border or the funding of PAPs without an existing
appropriation cover are unconstitutional acts and/practices taken under the DAP.
ATTY. ALICIA RISOS-VIDAL and ALFREDO S. LIM vs. COMMISSION ON
ELECTIONS and JOSEPH EJERCITO ESTRADA
G.R. No. 206666, January 21, 2015, J. Leonardo-De Castro
When the pardon extended to former President Estrada shows that both the principal
penalty of reclusion perpetua and its accessory penalties are included in the pardon. The first
sentence refers to the executive clemency extended to former President Estrada who was
convicted by the Sandiganbayan of plunder and imposed a penalty of reclusion perpetua. The
latter is the principal penalty pardoned which relieved him of imprisonment. The sentence
that followed, which states that "(h)e is hereby restored to his civil and political rights,"
expressly remitted the accessory penalties that attached to the principal penalty of reclusion
perpetua. Hence, from the text of the pardon that the accessory penalties of civil interdiction
and perpetual absolute disqualification were expressly remitted together with the principal
penalty of reclusion perpetua.
Furthermore, the third preambular clause of the pardon, i.e., “[w]hereas, Joseph
Ejercito Estrada has publicly committed to no longer seek any elective position or office,”
neither makes the pardon conditional, nor militate against the conclusion that former
President Estrada’s rights to suffrage and to seek public elective office have been restored. A
preamble is really not an integral part of a law. It is merely an introduction to show its intent
or purposes. It cannot be the origin of rights and obligations. Where the meaning of a statute
is clear and unambiguous, the preamble can neither expand nor restrict its operation much
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less prevail over its text. Hence if the pardon was intended be conditional, it should have
explicitly stated the same in the text of the pardon itself. Since it did not make an integral
part of the decree of pardon, the 3rd preambular clause cannot be interpreted as a condition
to the pardon extended.
Facts:
The Sandiganbayan convicted former President Estrada for the crime of plunder in
criminal case. Thereafter, however, former President Gloria Macapagal Arroyo (former
President Arroyo) extended executive clemency, by way of pardon, to former President
Estrada. Former President Estrada “received and accepted” the pardon by affixing his
signature beside his handwritten notation thereon.
On 2009, former President Estrada filed a Certificate of Candidacy for the position
of President. During that time, his candidacy earned three oppositions, however, in
separate resolutions, all three petitions were effectively dismissed on the uniform grounds
that (i) the Constitutional proscription on reelection applies to a sitting president; and (ii)
the pardon granted to former President Estrada by former President Arroyo restored the
former’s right to vote and be voted for a public office. The subsequent motions for
reconsideration thereto were denied by the COMELEC En banc. After the conduct of the
May 10, 2010 synchronized elections, however, former President Estrada only managed to
garner the second highest number of votes. On petition for certiorari, Supreme Court
dismissed the aforementioned petition on the ground of mootness considering that former
President Estrada lost his presidential bid.
On 2012, former President Estrada once more ventured into the political arena, and
filed a Certificate of Candidacy, this time vying for a local elective post, that of the Mayor
of the City of Manila. Subsequently, Atty. Alicia Risos-Vidal (Risos-Vidal), filed a Petition
for Disqualification against former President Estrada before the COMELEC, anchoring her
petition on the theory that "[Former President Estrada] is Disqualified to Run for Public
Office because of his Conviction for Plunder by the Sandiganbayan Sentencing Him to
Suffer the Penalty of Reclusion Perpetuawith Perpetual Absolute Disqualification." She
relied on Section 40 of the Local Government Code (LGC), in relation to Section 12 of the
Omnibus Election Code (OEC).”
In a Resolution, the COMELEC, Second Division, dismissed the petition for
disqualification for lack of merit as Risos-Vidal failed to present cogent proof sufficient to
reverse the standing pronouncement of this Commission declaring categorically that
[former President Estrada’s] right to seek public office has been effectively restored by the
pardon vested upon him by former President Gloria M. Arroyo. The subsequent motion for
reconsideration filed by Risos-Vidal was denied. Hence, this petition. While the case was
pending before the Court, former Prsident Estrada was elected into the said office. Alfredo
S. Lim (Lim), one of former President Estrada’s opponents for the position of Mayor, moved
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Vidal’s theory that former President Estrada is disqualified to run for and hold public office
as the pardon granted to the latter failed to expressly remit his perpetual disqualification.
Issue:
Whether former President Estrada is qualified to vote and be voted for in public
office as a result of the pardon granted to him by former President Arroyo.
Ruling:
The petition for certiorari lacks merit.
The pardoning power of the President cannot be limited by legislative action.
The 1987 Constitution, specifically Section 19 of Article VII and Section 5 of Article
IX-C, provides that the President of the Philippines possesses the power to grant pardons.
It is apparent from the constitutional provisions that the only instances in which the
President may not extend pardon remain to be in: (1) impeachment cases; (2) cases that
have not yet resulted in a final conviction; and (3) cases involving violations of election
laws, rules and regulations in which there was no favorable recommendation coming from
the COMELEC. Therefore, it can be argued that any act of Congress by way of statute
cannot operate to delimit the pardoning power of the President.
This doctrine of non-diminution or non-impairment of the President’s power of
pardon by acts of Congress, specifically through legislation, was strongly adhered to by an
overwhelming majority of the framers of the 1987 Constitution when they flatly rejected a
proposal to carve out an exception from the pardoning power of the President in the form
of "offenses involving graft and corruption" that would be enumerated and defined by
Congress through the enactment of a law.
The proper interpretation of Articles 36 and 41 of the Revised Penal Code.
Articles 36 and 41 of the RPC cannot, in any way, serve to abridge or diminish the
exclusive power and prerogative of the President to pardon persons convicted of violating
penal statutes. The Court cannot subscribe to Risos-Vidal’s interpretation that the said
Articles contain specific textual commands which must be strictly followed in order to free
the beneficiary of presidential grace from the disqualifications specifically prescribed by
them.
It is well-entrenched in this jurisdiction that where the words of a statute are clear,
plain, and free from ambiguity, it must be given its literal meaning and applied without
attempted interpretation. Verba legis non est recedendum. From the words of a statute there
should be no departure. It is this Court’s firm view that the phrase in the presidential
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pardon at issue which declares that former President Estrada “is hereby restored to his civil
and political rights" substantially complies with the requirement of express restoration.”
A close scrutiny of the text of the pardon extended to former President Estrada
shows that both the principal penalty of reclusion perpetua and its accessory penalties are
included in the pardon. The first sentence refers to the executive clemency extended to
former President Estrada who was convicted by the Sandiganbayan of plunder and imposed
a penalty of reclusion perpetua. The latter is the principal penalty pardoned which relieved
him of imprisonment. The sentence that followed, which states that "(h)e is hereby restored
to his civil and political rights," expressly remitted the accessory penalties that attached to
the principal penalty of reclusion perpetua. Hence, even if we apply Articles 36 and 41 of
the RPC, it is indubitable from the text of the pardon that the accessory penalties of civil
interdiction and perpetual absolute disqualification were expressly remitted together with
the principal penalty of reclusion perpetua.
In this jurisdiction, the right to seek public elective office is recognized by law as
falling under the whole gamut of civil and political rights. From both law and
jurisprudence, the right to seek public elective office is unequivocally considered as a
political right. Hence, the Court reiterates its earlier statement that the pardon granted to
former President Estrada admits no other interpretation other than to mean that, upon
acceptance of the pardon granted to him, he regained his FULL civil and political rights –
including the right to seek elective office. Furthermore, the disqualification of former
President Estrada under Section 40 of the LGC in relation to Section 12 of the OEC was
removed by his acceptance of the absolute pardon granted to him.
Risos-Vidal maintains that former President Estrada’s conviction for plunder
disqualifies him from running for the elective local position of Mayor of the City of Manila
under Section 40(a) of the LGC. However, the subsequent absolute pardon granted to
former President Estrada effectively restored his right to seek public elective office. This is
made possible by reading Section 40(a) of the LGC in relation to Section 12 of the OEC.
While it may be apparent that the proscription in Section 40(a) of the LGC is worded
in absolute terms, Section 12 of the OEC provides a legal escape from the prohibition – a
plenary pardon or amnesty. In other words, the latter provision allows any person who has
been granted plenary pardon or amnesty after conviction by final judgment of an offense
involving moral turpitude, inter alia, to run for and hold any public office, whether local or
national position.
The third preambular clause of the pardon did not operate to make the pardon conditional.
Contrary to Risos-Vidal’s declaration, the third preambular clause of the pardon, i.e.,
“[w]hereas, Joseph Ejercito Estrada has publicly committed to no longer seek any elective
position or office,” neither makes the pardon conditional, nor militate against the
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conclusion that former President Estrada’s rights to suffrage and to seek public elective
office have been restored.
This is especially true as the pardon itself does not explicitly impose a condition or
limitation, considering the unqualified use of the term “civil and political rights” as being
restored. Jurisprudence educates that a preamble is not an essential part of an act as it is
an introductory or preparatory clause that explains the reasons for the enactment, usually
introduced by the word “whereas.” Whereas clauses do not form part of a statute because,
strictly speaking, they are not part of the operative language of the statute. In this case, the
whereas clause at issue is not an integral part of the decree of the pardon, and therefore,
does not by itself alone operate to make the pardon conditional or to make its effectivity
contingent upon the fulfilment of the aforementioned commitment nor to limit the scope
of the pardon. A preamble is really not an integral part of a law. It is merely an introduction
to show its intent or purposes. It cannot be the origin of rights and obligations. Where the
meaning of a statute is clear and unambiguous, the preamble can neither expand nor
restrict its operation much less prevail over its text.
If former President Arroyo intended for the pardon to be conditional on
Respondent’s promise never to seek a public office again, the former ought to have
explicitly stated the same in the text of the pardon itself. Since former President Arroyo did
not make this an integral part of the decree of pardon, the Commission is constrained to
rule that the 3rd preambular clause cannot be interpreted as a condition to the pardon
extended to former President Estrada.
Absent any contrary evidence, former President Arroyo’s silence on former
President Estrada’s decision to run for President in the May 2010 elections against, among
others, the candidate of the political party of former President Arroyo, after the latter’s
receipt and acceptance of the pardon speaks volume of her intention to restore him to his
rights to suffrage and to hold public office.
Where the scope and import of the executive clemency extended by the President
is in issue, the Court must turn to the only evidence available to it, and that is the pardon
itself. From a detailed review of the four corners of said document, nothing therein gives
an iota of intimation that the third Whereas Clause is actually a limitation, proviso,
stipulation or condition on the grant of the pardon, such that the breach of the mentioned
commitment not to seek public office will result in a revocation or cancellation of said
pardon. To the Court, what it is simply is a statement of fact or the prevailing situation at
the time the executive clemency was granted. It was not used as a condition to the efficacy
or to delimit the scope of the pardon.
Therefore, there can be no other conclusion but to say that the pardon granted to
former President Estrada was absolute in the absence of a clear, unequivocal and concrete
factual basis upon which to anchor or support the Presidential intent to grant a limited
pardon. To reiterate, insofar as its coverage is concerned, the text of the pardon can
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withstand close scrutiny even under the provisions of Articles 36 and 41 of the Revised Penal
Code. The COMELEC did not commit grave abuse of discretion amounting to lack or excess
of jurisdiction in issuing the assailed Resolutions.
MARIA CAROLINA P. ARAULLO, CHAIRPERSON, BAGONG ALYANSANG
MAKABAYAN, et al., vs. BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES, et al.
G.R. No. 209287 (Consolidated), July 01, 2014, J. Bersamin
The DAP was a government policy or strategy designed to stimulate the economy
through accelerated spending. In the context of the DAP’s adoption and implementation
being a function pertaining to the Executive as the main actor during the Budget Execution
Stage under its constitutional mandate to faithfully execute the laws, including the GAAs,
Congress did not need to legislate to adopt or to implement the DAP. Congress could
appropriate but would have nothing more to do during the Budge Execution Stage. Indeed,
appropriation was the act by which Congress “designates a particular fund, or sets apart a
specified portion of the public revenue or of the money in the public treasury, to be applied to
some general object of governmental expenditure, or to some individual purchase or expense.
As pointed out in Gonzales vs. Raquiza, “[i]n a strict sense, appropriation has been defined
‘as nothing more than the legislative authorization prescribed by the Constitution that
money may be paid out of the Treasury,’ while appropriation made by law refers to ‘the act of
the legislature setting apart or assigning to a particular use a certain sum to be used in the
payment of debt or dues from the State to its creditors.”
On the other hand, the President, in keeping with his duty to faithfully execute the
laws, had sufficient discretion during the execution of the budget to adapt the budget to
changes in the country’s economic situation. He could adopt a plan like the DAP for the
purpose. He could pool the savings and identify the [Programs, Activities and Projects or
PAPs] to be funded under the DAP. The pooling of savings pursuant to the DAP, and the
identification of the PAPs to be funded under the DAP did not involve appropriation in the
strict sense because the money had been already set apart from the public treasury by
Congress through the GAAs. In such actions, the Executive did not usurp the power vested in
the Congress under Sec. 29(1), Article VI of the Constitution.
Facts:
The controversy, in the present case, surfaced at the fore of public consciousness
when Sen. Jinggoy Estrada in his privilege speech revealed that some Senators, including
himself, had been allotted an additional PhP50 Million each as incentive for voting in favor
of the impeachment of Chief Justice Renato Corona. In response, DBM Secretary Florencio
Abad explained that the allocations were part of the Disbursement Acceleration Program
(DAP) devised to accelerate government spending. He further explained that the funds
under the DAP were sourced from (1) unreleased appropriations under Personnel Services;
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(2) unprogrammed funds; (3) carry-over appropriations unreleased from the previous year;
and (4) budget for slow-moving items or projects that had been realigned to support fasterdisbursing projects.
The DBM listed the following as the legal bases for the DAP’s use of savings, namely:
(1) Section 25(5), Article VI of the 1987 Constitution, which granted to the President the
authority to augment an item for his office in the general appropriations law; (2) Section
49 (Authority to Use Savings for Certain Purposes) and Section 38 (Suspension of
Expenditure Appropriations), Chapter 5, Book Vi of Executive Order (EO) No. 292
(Administrative Code of 1987); and (3) the General Appropriations Acts (GAAs) of 2011, 2012
and 2013, particularly their provisions on the (a) use of savings; (b) meanings of savings and
augmentation; and (c) priority in the use of savings. As for the use of unprogrammed funds
under the DAP, the DBM cited as legal bases the special provisions on unprogrammed fund
contained in the GAAs of 2011, 2012, and 2013.
Petitioners, representing various national, sectoral and public interest groups,
through petitions for certiorari, prohibition and mandamus, seek to have the Disbursement
Acceleration Program (DAP), National Budget Circular (NBC) No. 541 and related
issuances, being implemented by respondent officials, and the consequent and related acts
thereto declared ultra vires. They argue that the DAP contravened Sec. 29(1) of Article VI
of the 1987 Constitution by allowing the Executive to allocate public money pooled from
programmed and unprogrammed funds in the guise of the President exercising his
constitutional authority under Sec. 25(5) of the Constitution with respect to transfer of
alleged savings within and even outside the Executive Branch.
Issue:
Whether or not the DAP violates Sec. 29, Article VI of the 1987 Constitution, which
provides: “No money shall be paid out of the Treasury except in pursuance of an
appropriation made by law.”
Ruling:
NO, DAP was not an appropriation measure and contrary to what petitioners posit
it does not contravene Sec. 29, Article VI of the Constitution and the 2011, 2012 and 2013
GAAs.
The DAP was a government policy or strategy designed to stimulate the economy
through accelerated spending. In the context of the DAP’s adoption and implementation
being a function pertaining to the Executive as the main actor during the Budget Execution
Stage under its constitutional mandate to faithfully execute the laws, including the GAAs,
Congress did not need to legislate to adopt or to implement the DAP. Congress could
appropriate but would have nothing more to do during the Budge Execution Stage. Indeed,
appropriation was the act by which Congress “designates a particular fund, or sets apart a
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specified portion of the public revenue or of the money in the public treasury, to be applied
to some general object of governmental expenditure, or to some individual purchase or
expense. As pointed out in Gonzales vs. Raquiza, “[i]n a strict sense, appropriation has been
defined ‘as nothing more than the legislative authorization prescribed by the Constitution
that money may be paid out of the Treasury,’ while appropriation made by law refers to
‘the act of the legislature setting apart or assigning to a particular use a certain sum to be
used in the payment of debt or dues from the State to its creditors.
On the other hand, the President, in keeping with his duty to faithfully execute the
laws, had sufficient discretion during the execution of the budget to adapt the budget to
changes in the country’s economic situation. He could adopt a plan like the DAP for the
purpose. He could pool the savings and identify the [Programs, Activities and Projects or
PAPs] to be funded under the DAP. The pooling of savings pursuant to the DAP, and the
identification of the PAPs to be funded under the DAP did not involve appropriation in the
strict sense because the money had been already set apart from the public treasury by
Congress through the GAAs. In such actions, the Executive did not usurp the power vested
in the Congress under Sec. 29(1), Article VI of the Constitution.
JUDICIAL DEPARTMENT
JUDICIAL POWER
ENRIQUE G. DE LEON, Petitioners, vs. PEOPLE OF THE PHILIPPINES and SPO3
PEDRITO L. LEONARDO, Respondents.
January 11, 2016, G.R. No. 212623
Facts:
Records show that De Leon was charged with Grave Oral Defamation in the Information
filed before the MeTC, docketed as Criminal Case No. 453376-CR.
Upon arraignment, De Leon entered a plea of not guilty. Pursuant to the Supreme Court
Circular No. 20-2002, De Leon and private respondent SPO3 Pedrito Leonardo (SPO3
Leonardo) appeared before the Philippine Mediation Center to settle the civil aspect of the
case. The conciliation meeting, however, bogged down. Hence, the proceedings before the
lower court continued. During the pre-trial, the parties pre-marked their respective
exhibits and moved for the trial to commence.
The prosecution presented three witnesses, namely: private respondent SPO3 Leonardo,
Carlito Principe (Principe) and Jennifer Malupeng (Malupeng). Their combined
testimonies narrated that De Leon and his son, John Christopher De Leon (John), filed a
complaint for Grave Misconduct against SPO3 Leonardo before the People’s Law
Enforcement Board (PLEB), docketed as Administrative Case Nos. 06-02-060 (291) II and
06-02-061 (292) II.
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The first hearing was scheduled on April 17, 2006 at the PLEB office on the 5th Floor of the
Manila City Hall; At around 1:30 o’clock in the afternoon, while waiting outside the PLEB
office on the 5th floor of the Manila City Hall, SPO3 Leonardo noticed De Leon and several
of his companions approaching. Before entering the PLEB office, De Leon uttered these
words to SPO3 Leonardo, "Walanghiya kang mangongotong na pulis ka, ang yabang yabang
mo noon. Patay ka sa akin ngayon."
The words uttered by De Leon caused SPO3 Leonardo embarrassment because there were
several persons present at the PLEB premises. He could have arrested De Leon but he did
not want to make a scene. Afterwards, De Leon’s wife, Concepcion, emerged from the said
office and apologized to Leonardo for her husband’s actuations. SPO3 Leonardo calmly
proceeded to the Special Operations Group of the Philippine National Police (PNP) located
at the Manila City Hall to have the incident entered in its blotter. On the same day, SPO3
Leonardo filed his complaint at the Office of the City Prosecutor (OCP) together with
Principe.
The defense presented Fernando Manalo (Manalo), Ruperto Molera (Molera), Concepcion
De Leon (Concepcion) and the accused himself as witnesses.
From their testimonies, the defense claimed that there was a prior incident that took place
on the morning of February 27, 2006 when De Leon, with his son John, while having
breakfast with their fellow joggers at the Philippine National Railroad-Tutuban Station,
were approached by SPO3 Leonardo who arrived on his scooter. With his gun drawn, SPO3
Leonardo walked fast towards the group and at a distance of two meters, more or less, he
said, "Putang ina mo, tapos ka na Ricky Boy, referring to De Leon." He pressed the trigger
but the gun did not fire, when he was to strike again, De Leon was able to escape with the
help of John.
Consequently, De Leon and John filed an administrative complaint for grave misconduct
against SPO3 Leonardo before the PLEB and the first hearing was set on April 17, 2006. In
his Sinumpaang Salaysay sa Paghahabla filed before the PLEB, De Leon narrated that he
and SPO3 Leonardo were former jogging buddies and that the latter wanted to borrow
money from the former in the amount of P150,000.00, but he declined. SPO3 Leonardo
became upset with him, culminating in the gun-pointing incident.
On April 17, 2006, at around 1:30 o’clock in the afternoon, De Leon, in the company of his
wife Concepcion, Manalo, Molera, and several others went to the PLEB office to attend the
hearing. When De Leon and his companions arrived at the PLEB, they saw SPO3 Leonardo
seated on the bench alone; that they were about to pass when SPO3 Leonardo stood up,
badmouthed and threatened De Leon by uttering the words, "Putang-ina mong mayabang
ka, pag di mo inurong demanda mo sa akin, papatayin kita."
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Moments later, they caused the incident to be entered in the police blotter. From there,
they returned to the PLEB office where they were advised to file charges against SPO3
Leonardo in Camp Crame. Malupeng and Principe were not seen at the PLEB office
premises. Molera even tried to pacify SPO3 Leonardo by saying, "Itok (referring to SPO3
Leonardo), ano ka ba naman andito na tayo sa husgado, ayaw mo pang tigilan ang
kamumura kay Ricky, referring to De Leon." De Leon did not do anything, he simply
entered the PLEB office and sat down there because he got nervous. He also denied
apologizing to SPO3 Leonardo.
Also on April 17, 2006, De Leon utilized the police blotter to file a case against SPO3
Leonardo in Camp Crame. He filed the said case only after he received the subpoena from
the OCP for the case filed against him by SPO3 Leonardo. Although he was with his lawyer
when he went to Camp Crame, the latter did not advise him to file a complaint in the OCP
right away. According to De Leon, he also saw SPO3 Leonardo deposit his service firearm
while at the PLEB office.
Issue:
WHETHER THE DECISION OF THE MeTC FAILED TO INCLUDE THE FACTS AND THE
LAW UPON WHICH THE DECISION WAS BASED.
Ruling:
Under Section 14, Article VIII of the Constitution, no decision shall be rendered by any
court without expressing therein clearly and distinctly the facts and the law on which it is
based. Section 1 of Rule 36 of the Rules of Court provides that a judgment or final order
determining the merits of the case shall be in writing personally and directly prepared by
the judge, stating clearly and distinctly the facts and the law on which it is based, signed
by him and filed with the clerk of the court.
Faithful adherence to the requirements of Section 14, Article VIII of the Constitution is
indisputably a paramount component of due process and fair play. A decision that does not
clearly and distinctly state the facts and the law on which it is based leaves the parties in
the dark as to how it was reached and is precisely prejudicial to the losing party, who is
unable to pinpoint the possible errors of the court for review by a higher tribunal. More
than that, the requirement is an assurance to the parties that, in arriving at a judgment, the
judge did so through the processes of legal reasoning. It is, thus, a safeguard against the
impetuosity of the judge, preventing him from deciding ipse dixit.
The standard "expected of the judiciary" is that the decision rendered makes clear why
either party prevailed under the applicable law to the facts as established. Nor is there any
rigid formula as to the language to be employed to satisfy the requirement of clarity and
distinctness. The discretion of the particular judge in this respect, while not unlimited, is
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necessarily broad. There is no sacramental form of words which he must use upon pain of
being considered as having failed to abide by what the Constitution directs.
It is understandable that courts, with heavy dockets and time constraints, often find
themselves with little to spare in the preparation of decisions to the extent most desirable.
Judges might learn to synthesize and to simplify their pronouncements. Nevertheless,
concisely written such as they may be, decisions must still distinctly and clearly express, at
least in minimum essence, its factual and legal bases.
In this case, there was no breach of the constitutional mandate that decisions must express
clearly and distinctly the facts and the law on which they are based. The CA correctly stated
that the MeTC clearly emphasized in its decision, the factual findings, as well as the
credibility and the probative weight of the evidence for the defense vis-à-vis the evidence
of the prosecution. The MeTC presented both the version of the prosecution and that of
the defense. De Leon was not left in the dark. He was fully aware of the alleged errors of
the MeTC. The RTC, as an appellate court, found no reason to reverse the decision of the
MeTC.
REPUBLIC OF THE PHILIPPINES, Petitioner, v. MOLDEX REALTY, INC., Respondent.
G.R. No. 171041, February 10, 2016
Facts:
On January 25, 2000, Luis Erce, Rosa Cinense, and Maria Clara Erce Landicho applied for
the registration of parcels of land in Alulod, Indang, Cavite, designated as Lot Nos. 9715-A
(40,565 square meters), 9715-B (20,000 square meters), and 9715-C (20,000 square meters)
before the Regional Trial Court of Naic, Cavite. The properties had a total area of 80,565
square meters.
Eventually, applicants sold Lot Nos. 9715-B and 9715-C, with a total land area of 40,000
square meters, to Moldex Realty, Inc. Applicants were later substituted by Moldex Realty,
Inc. in the application for registration pending before the Regional Trial Court. Lot No.
9715-A was dropped from the application for registration.
To prove its title, Moldex Realty, Inc. presented the testimonies of Engineer John Arvin
Manaloto (Manaloto) and Pio Atis.
Manaloto was Moldex Realty, Inc's Assistant Manager for its Technical Services
Department. He testified that Moldex Realty, Inc. purchased the properties from the heirs
of Ana Erce and Pedro Erce.The sale was evidenced by two (2) separate deeds of sale
executed in 1997.
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According to Manaloto, the technical descriptions and the subdivision plan covering the
properties were approved by the Bureau of Lands. Tax declarations from the Offices of the
Municipal Assessor of Indang, Cavite and of the Provincial Assessor of Trece Martires City
indicated that from 1948 to 2001, the properties had been owned by Olimpio Erce, Pedro
Erce, Ana Erce, Heirs of Ana Erce, and Moldex Realty, Inc.
Manaloto further testified that he secured from the Forest Management Sector of
Community Environment and Natural Resources Office of Trece Martires City a
certification that the properties were declared alienable and disposable land of the public
domain on March 15, 1982.
The Regional Trial Court rendered the Decision granting the application. The Court of
Appeals rendered the Decision affirming the approval of Moldex Realty, Inc.'s application
for registration
The Court of Appeals ruled that based on Republic v. Naguit, an application for registration
satisfies the requirement that the property is classified as alienable and disposable if the
land has been alienable and disposable at the time of the application for registration.ralaw
On March 2, 2006, the Office of the Solicitor General filed a Petition for Review under Rule
45 of the Rules of Court assailing the Court of Appeals January 6, 2006 Decision.
The Office of the Solicitor General argued that Moldex Realty, Inc. failed to prove that it or
its predecessors-in-interests had been in open, continuous, exclusive, and notorious
possession of the property in the concept of an owner from June 12, 1945 or for at least 30
years. It also argued that in affirming the Regional Trial Court Decision, the Court of
Appeals erroneously relied on Naguitinstead of Republic v. Herbieto.
On the other hand, Moldex Realty, Inc. argued that for purposes of registration, land needs
only to have been declared alienable and disposable at the time of the filing of an
application for registration.31 It also argued that unless a public land is clearly being
reserved for public or common use, it should be considered patrimonial property.
On March 14, 2012, this court received a Manifestation and Motion from Moldex Realty,
Inc. stating that although it had already been issued a favorable decision by the Regional
Trial Court and the Court of Appeals, it opted to withdraw its application for registration
of the properties in its name.33 Hence, the case had become moot and academic.
Issue:
whether respondent Moldex Realty, Inc.'s withdrawal of its application for land registration
has rendered this case moot and academic
Ruling:
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The Petition has no merit.
Respondent's withdrawal of its application for registration has rendered this case moot and
academic.
This court's power of judicial review is limited to actual cases and controversies. Article
VIII, Section 1 of the Constitution provides:
SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government.
There is an actual case or controversy when the case presents conflicting or opposite legal
rights that may be resolved by the court in a judicial proceeding. In David v. MacapagalArroyo:
An actual case or controversy involves a conflict of legal right, an opposite legal claims
susceptible of judicial resolution. It is "definite and concrete, touching the legal relations
of parties having adverse legal interest"; a real and substantial controversy admitting of
specific relief.
A case becomes moot and academic when, by virtue of supervening events, the conflicting
issue that may be resolved by the court ceases to exist.There is no longer any justiciable
controversy that may be resolved by the court. This court refuses to render advisory
opinions and resolve issues that would provide no practical use or value. Thus, courts
generally "decline jurisdiction over such case or dismiss it on ground of mootness."
Respondent's Manifestation stating its withdrawal of its application for registration has
erased the conflicting interests that used to be present in this case. Respondent's
Manifestation was an expression of its intent not to act on whatever claim or right it has to
the property involved. Thus, the controversy ended when respondent filed that
Manifestation.
A ruling on the issue of respondent's right to registration would be nothing but an advisory
opinion. [T]he power of judicial review does not repose upon the courts a "self-starting
capacity." This court cannot, through affirmation or denial, rule on the issue of
respondent's right to registration because respondent no longer asserts this right.
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It is true that this court does not always refuse to assume jurisdiction over a case that has
been rendered moot and academic by supervening events. Courts assume jurisdiction over
cases otherwise rendered moot and academic when any of the following instances are
present:
(1) Grave constitutional violations;
(2) Exceptional character of the case;
(3) Paramount public interest;
(4) The case presents an opportunity to guide the bench, the bar, and the public; or
(5) The case is capable of repetition yet evading review.
None of these circumstances are present in this case. Thus, there is no more reason to go
into its substantive issues.
Nevertheless, respondent's Manifestation should not be considered a waiver of its rights
over the property. There is nothing in the Manifestation that speaks of respondent's
abandonment of its property claims. Nor does the Manifestation have the effect of proving
that the property belongs to the public domain and the state.
Respondent's Manifestation has the effect of a waiver of the Decisions of the trial court and
of the Court of Appeals in favor of respondent. Respondent's withdrawal of its application
for registration, pending resolution of petitioner's Petition for Review before this court and
with full knowledge of the Court of Appeals and the trial court's Decisions in its favor, is
not a means to render final and executory these Decisions.
However, dismissing this case and setting aside the Decisions of the trial court and of the
Court of Appeals in favor of respondent would not render a conclusive judgment on this
issue. Respondent, or any interested applicant, is not precluded from filing another
application for registration involving the property.
PHILIPPINE AMUSEMENT AND GAMING CORPORATION v. THUNDERBIRD
PILIPINAS HOTELS AND RESORTS, INC., ET AL.
G.R. No. 197942-43/G.R. No. 199528. March 26, 2014
J. Reyes
The Constitutional mandate of the courts in our triangular system of government is
clear, so that as a necessary requisite of the exercise of judicial power there must be, with
a few exceptions, an actual case or controversy involving a conflict of legal rights or an
assertion of opposite legal claims susceptible of judicial resolution, not merely a
hypothetical or abstract difference or dispute.
Facts:
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Presidential Decree No. 1067-A created PAGCOR on January 1, 1977 with the task to
centralize and integrate all games of chance not heretofore authorized by existing
franchises or permitted by laws. Then, under P.D. No. 1869, promulgated on July 11, 1983,
all presidential decrees relative to the franchise and powers of PAGCOR were consolidated.
Under Section 3(h) of P.D. No. 1869, PAGCOR is empowered to enter into contracts for any
lawful purpose which are necessary or incidental to any business or purpose of the
PAGCOR. Thus, on November 9, 2004, respondent Eastbay Resorts, Inc. (ERI) and its
foreign principal, International Thunderbird Gaming Corporation of Canada
(Thunderbird), entered into a Memorandum of Agreement with PAGCOR whereby
Thunderbird through ERI committed to invest the initial sum of US$7.5 Million in their
gaming and leisure operations in Fiesta Hotel and Casino (FHC). Initially, PAGCOR
granted ERI a six-month provisional authority to operate (ATO) a casino in FHC but on
May 19, 2005 PAGCOR granted ERI and Thunderbird a “permanent” ATO co-terminus with
PAGCOR’s franchise, or up to July 11, 2008 which is extendible if PAGCOR's franchise would
be further lengthened. Another agreement was entered into this time between PAGCOR
and respondent Thunderbird Pilipinas Hotel and Resorts, Inc. (Thunderbird Pilipinas),
a newly-formed local affiliate of ERI. The same conditions above are also applied in the
latter's agreement.
On June 20, 2007, Republic Act (R.A.) No. 9487 amended P.D. No. 1869 by extending
PAGCOR’S franchise by 25 years after July 11, 2008, renewable for another 25 years. With
the passage of R.A. No. 9487, Thunderbird Pilipinas and ERI (respondents) sought the
formal extension of their ATOs to be made co-terminus with PAGCOR’s new franchise.
On June 2, 2010, PAGCOR informed Thunderbird Pilipinas and ERI that it had approved
the automatic five-year extensions of its ATO up to the year 2033.
On November 2, 2010, now under a new Board of Directors appointed by newly-elected
President Benigno S. Aquino III, PAGCOR served notice upon the respondents to cease
their casino operations allegedly because their ATO's expired as early as July 11, 2008.
Believing that they are entitled to a new franchise co-terminus with that of PAGCOR,
respondents filed separate complaints against PAGCOR with the RTC. The RTC Executive
Judge Amor Reyes (Judge Reyes) issued an ex-parte 72-hour TRO, later extended to 20 days.
Early on June 7, 2011, Tuesday, believing that the 72-hour TRO issued by Judge Reyes had
expired PAGCOR issued a Closure Order against the respondents. After a prolong battle
between the parties, in their Manifestation dated September 11, 2012, the respondents
disclosed that they had submitted to the trial court a Joint Manifestation and Motion to
Dismiss the complaints below agreeing to release to PAGCOR all monies consigned in its
favor. They also agreed to pay other franchise fees and tax liabilities found to be still due
after audit. On May 21, 2012, the trial court approved the dismissal of the case.
Issue:
Whether or not there is still an actual case or controversy requiring the exercise of judicial
power
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Ruling:
The petition is dismissed.
There is no more actual case or controversy to resolve, since the petitions have
been mooted by the dismissal of the complaints below.
The Constitutional mandate of the courts in our triangular system of government is clear,
so that as a necessary requisite of the exercise of judicial power there must be, with a
few exceptions, an actual case or controversy involving a conflict of legal rights or an
assertion of opposite legal claims susceptible of judicial resolution, not merely a
hypothetical or abstract difference or dispute. As Article VIII, Section 1 of the 1987
Constitution provides, "judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government."
The power of judicial review is limited to actual cases or controversies. Courts decline
to issue advisory opinions or to resolve hypothetical or feigned problems, or mere
academic questions. 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.
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. The Court can
decide the constitutionality of an act or treaty only when a proper case between opposing
parties is submitted for judicial determination.
With the parties agreeing to end their differences before trial proper, the instant petitions
have ceased to present a justiciable controversy for us to resolve.
JUDICIAL REVIEW
CRISANTO M. AALA, et al. vs. HON. REY T. UY, et al.
G.R. No. 202781 | January 10, 2017 | J. Leonen
FACTS: The petitioners filed an original action for Certiorari, Prohibition, and Mandamus
filed by petitioners which questions the validity of a City Ordinance of the City of Tagum,
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Davao del Norte. Said ordinance sought to adopt a new schedule of market values and
assessment levels of real properties in Tagum City.
ISSUES:
Whether this case falls under the exceptions to the doctrine on hierarchy of courts. NO.
Whether this case falls under the exceptions to the rule on exhaustion of administrative
remedies. NO.
Whether petitioners correctly availed themselves of the extraordinary remedies of
certiorari, prohibition, and mandamus. NO.
Whether respondents committed grave abuse of discretion amounting to lack or excess of
jurisdiction in preparing, enacting, and approving the City Ordinance. The SC denied the
Petition for serious procedural errors.
RULING: Parties must comply with the doctrines on hierarchy of courts and exhaustion of
administrative remedies. Otherwise, they run the risk of bringing premature cases before
this Court, which may result to protracted litigation and overclogging of dockets.
As expressly provided in the Constitution, the SC has original jurisdiction "over petitions
for certiorari, prohibition, mandamus, quo warranto, and habeas corpus." However, the SC
has emphasized in People v. Cuaresma that the power to issue writs of certiorari,
prohibition, and mandamus does not exclusively pertain to the SC. Rather, it is shared with
the Court of Appeals and the Regional Trial Courts. Nevertheless, "this concurrence of
jurisdiction" does not give parties unfettered discretion as to the choice of forum. The
doctrine on hierarchy of courts is determinative of the appropriate venue where petitions
for extraordinary writs should be filed. Parties cannot randomly select the court or forum
to which their actions will be directed.
Consequently, the SC will not entertain direct resort to it when relief can be obtained in
the lower courts. This holds especially true when questions of fact are raised. The trial
courts and the Court of Appeals are better equipped to resolve questions of fact. They are
in the best position to deal with causes in the first instance.
However, the doctrine on hierarchy of courts is not an inflexible rule. In Diocese of Bacolod
v. Commission on Elections (2015), the SC summarized well-defined exceptions to the
doctrine on hierarchy of courts: (1) when genuine issues of constitutionality are raised that
must be addressed immediately; (2) when the case involves transcendental importance; (3)
when the case is novel; (4) when the constitutional issues raised are better decided by this
Court; (5) when time is of the essence; (6) when the subject of review involves acts of a
constitutional organ; (7) when there is no other plain, speedy, adequate remedy in the
ordinary course of law; (8) when the petition includes questions that may affect public
welfare, public policy, or demanded by the broader interest of justice; (9) when the order
complained of was a patent nullity; and (10) when the appeal was considered as an m.
appropriate remedy.
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None of the exceptions to the doctrine on hierarchy of courts are present in this case.
Significantly, although petitioners raise questions of law, other interrelated factual issues
have emerged from the parties' arguments, which this Court deems indispensable for the
proper disposition of this case.
In order to resolve these factual issues, the court will be tasked to receive evidence from
both parties. However, the initial reception and appreciation of evidence are functions that
the SC cannot perform. These functions are best left to the trial courts as SC is not a trier
of facts.
Moreover, the parties are generally precluded from immediately seeking the intervention
of courts when "the law provides for remedies against the action of an administrative board,
body, or officer." The practical purpose behind the principle of exhaustion of administrative
remedies is to provide an orderly procedure by giving the administrative agency an
"opportunity to decide the matter by itself correctly [and] to prevent unnecessary and
premature resort to the courts.
Province of Zamboanga del Norte v. Court of Appeals has held that the principle of
exhaustion of administrative remedies may be dispensed in the following instances: (1)
[W]hen there is a violation of due process; (2) when the issue involved is purely a legal
question; (3) when the administrative action is patently illegal and amounts to lack or
excess of jurisdiction; (4) when there is estoppel on the part of the administrative agency
concerned; (5) when there is irreparable injury; (6) when the respondent is a department
secretary whose acts, as an alter ego of the President, bears the implied and assumed
approval of the latter; (7) when to require exhaustion of administrative remedies would be
unreasonable; (8) when it would amount to a nullification of a claim; (9) when the subject
matter is a private land in land case proceedings; (10) when the rule does not provide a
plain, speedy and adequate remedy; (11) when there are circumstances indicating the
urgency of judicial intervention; and unreasonable delay would greatly prejudice the
complainant; (12) when no administrative review is provided by law; (13) where the rule of
qualified political agency applies; and (14) when the issue of non-exhaustion of
administrative remedies has been rendered moot.
In this case, as previously stated, the issues involved are not purely legal. There are factual
issues that need to be addressed for the proper disposition of the case. In other words, this
case is still not ripe for adjudication. To question the validity of the ordinance, petitioners
should have first filed an appeal before the Secretary of Justice. When the questioned
ordinance was published in July 2012, the City Government of Tagum could not have
immediately issued real property tax assessments. Hence, petitioners had ample time
within which to question the validity of the tax ordinance.
The factual issues raised by petitioners could have been properly addressed by the lower
courts had they adhered to the doctrines of hierarchy of courts and exhaustion of
administrative remedies.
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PHILIPPINE CONSTITUTION ASSOCIATION v. PHILIPPINE GOVERNMENT
G.R. No. 218406 | G.R. No. 218761 | G.R. No. 204355 | G.R. No. 218407 | G.R. No. 204354
| November 29, 2016 | November 29, 2016 | J. Carpio
FACTS:
Pursuant to EO No. 3, the Government Peace Negotiating Panel (GPNP) held negotiations
with the MILF, an armed, revolutionary Muslim separatist group based in Mindanao
seeking separation of the Muslim people from the central government. The negotiations
eventually led to the preparation of the Memorandum of Agreement on Ancestral Domain
(MOAAD) on 27 July 2008. However, on 14 October 2008, in the case of Province of North
Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain,
8 the Court declared the MOA-AD unconstitutional.
During Benigno Aquino’s administration, a preliminary peace agreement called the
Framework Agreement on the Bangsamoro (FAB) was signed between the government and
MILF which will create an autonomous political entity named Bangasmoro replacing the
ARMM. Other annexes and addendum were later signed as well. President Aquino
constituted the Bangsamoro Transition Commission to draft the Bangsamoro Basic Law
consistent to the FA and recommend amendments to the Constitution. The draft was
referred to and revised by Congress.
Several petitions were filed assailing the constitutionality of the Comprehensive Agreement
on the Bangsamoro (CAB) including the FAB and its annexes. Essentially, the petitions
commonly seek to declare the CAB and the FAB unconstitutional for being similar to the
void MOA-AD, which was struck down by the Court for violating, among others, the
constitutional provisions on constitutional amendments.
Essentially, the petitions commonly seek to declare the CAB and the FAB unconstitutional
for being similar to the void MOA-AD, which was struck down by the Court for violating,
among others, the constitutional provisions on constitutional amendments.
On 7 November 2016, President Rodrigo Roa Duterte issued EO No. 08 expanding the
membership and functions of the Bangsamoro Transition Commission and for it to submit
the Bangsamoro Basic Law to Office of the President, Congress and recommend to
Congress proposed amendments to Constitution.
ISSUE: WON question on constitutionality of CAB, including the FAB, is ripe for
adjudication. NO.
RULING:
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Question on constitutionality of CAB, including the FAB, is not ripe for adjudication
Pursuant to Section 1 Article VIII of the Constitution, the Court's judicial review power is
limited to actual cases or controversies. 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.
Closely linked to the requirement of an actual case or controversy is the requirement of
ripeness. For a case to be considered ripe for adjudication, it is a prerequisite that an act
had then been accomplished or performed by either branch of government before a court
may interfere, and the petitioner must allege the existence of an immediate or threatened
injury to himself as a result of the challenged action.
In the Province of North Cotabato v. GRP (MOA-AD case), contrary to Solicitor General’s
stand, the justiciable controversy was not ripe for adjudication. The Court stated that
"[w]hen 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." Moreover, in the MOA-AD case, the Executive was about to sign the initialed
MOA-AD with the MILF in Kuala Lumpur, Malaysia in the presence of representatives of
foreign states. Only the prompt issuance by this Court of a temporary restraining order
stopped the signing, averting the implications that such signing would have caused.
In this case, there is no actual case or controversy. Unlike the unconstitutional MOA-AD,
the CAB, including the FAB, mandates the enactment of the Bangsamoro Basic Law in order
for such peace agreements to be implemented. In the MOA-AD case, there was nothing in
the MOA-AD which required the passage of any statute to implement the provisions of the
MOA-AD, which in essence would have resulted in dramatically dismembering the
Philippines by placing the provinces and areas covered by the MOA-AD under the control
and jurisdiction of a Bangsamoro Juridical Entity. In fact, its provisions were immediately
implementable after its signing warranting the timely intervention by this Court to rule on
its constitutionality.
Further, under the MOA-AD, the Executive branch assumed the mandatory obligation to
amend the Constitution to conform to the MOA-AD. The Executive branch guaranteed to
the MILF that the Constitution would be drastically overhauled to conform to the MOAAD. In effect, the Executive branch usurped the sole discretionary power of Congress to
propose amendments to the Constitution as well as the exclusive power of the sovereign
people to approve· or disapprove such proposed amendments. Thus the MOA-AD was
declared unconstitutional for grave abuse of discretion.
In the present case, there is no such guarantee when the CAB and the F AB were signed.
Thus, contrary to the imagined fear of petitioners, the CAB and the F AB are not mere
reincarnations or disguises of the infirm MO A-AD. The CAB and the FAB remain peace
agreements whose provisions cannot be enforced and given any legal effect unless the
Bangsamoro Basic Law is duly passed by Congress and subsequently ratified in accordance
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with the Constitution. The Executive branch cannot compel to adopt the CAB and the FAB
or dictate contents of the BBL to Congress.
The CAB and the FAB are preparatory documents that can "trigger a series of acts" that may
lead to the exercise by Congress of its power to enact an organic act for an autonomous
region under Section 18, Article X of the Constitution. EO No. 8 provided for the
commission’s function to draft the said Law which highlight that it is a mere preliminary
framework agreement.
Even if there were today an existing bill on the Bangsamoro Basic Law, it would still not be
subject to judicial review. The Court held in Montesclaros v. COMELEC that it has no power
to declare a proposed bill constitutional or unconstitutional because that would be in the
nature of rendering an advisory opinion on a proposed act of Congress. The power of
judicial review cannot be exercised in vacuo.
REPUBLIC OF THE PHILIPPINES, REPRESENTED BY THE LAND REGISTRATION
AUTHORITY, Petitioner, vs. RAYMUNDO VIAJE, ET AL., Respondents.
January 27, 2016, G.R. No.180993
Facts:
The Office of the Solicitor General (OSG), on behalf of the Republic and as represented by
the Land Registration Authority (LRA), filed on July 10, 2000 a complaint for Cancellation
of Title and Reconveyance with the Regional Trial Court (RTC) of Trece Martires City,
docketed as Civil Case No. TM-1001 and raffled to Branch 23. The action mainly sought the
nullity of the transfer certificate of title (TCT) individually issued in the name of the
defendants therein, for having been issued in violation of law and for having dubious
origins. The titles were allegedly derived from TCT No. T-39046 issued on October 1, 1969.
TCT No. T-39046, in turn, was derived from Original Certificate of Title (OCT) No. 114
issued on March 9, 1910 covering 342,842 square meters. The Republic alleged, among
others, that OCT No. 114 and the documents of transfer of TCT No. T-39046 do not exist in
the records of the Registers of Deeds of Cavite and Trece Martires City.
The OSG entered its appearance on August 7, 2001 and deputized Atty. Artemio C. Legaspi
and the members of the LRA legal staff to appear in Civil Case No. TM-1001, with the OSG
exercising supervision and control over its deputized counsel.5 The OSG also requested
that notices of hearings, orders, decisions and other processes be served on both the OSG
and the deputized counsel.6 The Notice of Appearance, however, stated that "only notices
of orders, resolutions, and decisions served on him will bind the party represented."7
Subsequently, Atty. Alexander N.V. Acosta (Atty. Acosta) of the LRA entered his
appearance as deputized LRA lawyer, pursuant to the OSG Letter8 dated August 7, 2001.9
The letter also contained the statement, "only notices of orders, resolutions and decisions
served on him will bind the [Republic], the entity, agency and/or official represented."
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Thereafter, several re-settings of the pre-trial date were made due to the absence of either
the counsel for the Republic or the counsel of one of the defendants, until finally, on April
11, 2003, the RTC dismissed the complaint due to the non-appearance of the counsel for the
Republic.
The OSG filed a motion for reconsideration, which was granted by the RTC in its Order
dated July 22, 2003. Pre-trial was again set and re-set, and on January 23, 2004, the RTC
finally dismissed Civil Case No. TM-1001 with prejudice.
Having been informed of this, the OSG forthwith filed a Manifestation and Motion,16
informing the RTC that Atty. Acosta was not given notice of the pre-trial schedule. The
OSG also stated that such lack of notice was pursuant to a verbal court order that notice to
the OSG is sufficient notice to the deputized counsel, it being the lead counsel, and that
they were not formally notified of such order. The OSG argued that its deputized counsel
should have been notified of the settings made by the trial court as it is not merely a
collaborating counsel who appears with an OSG lawyer during hearing; rather, its
deputized counsel appears in behalf of the OSG and should be separately notified. Aside
from this, the OSG pointed out that it particularly requested for a separate notice for the
deputy counsel.
The RTC denied the OSG’s Manifestation and Motion in its Order18 dated May 31, 2004,
from which the OSG filed a Notice of Appeal, which was given due course by the RTC.20
Subsequently, the RTC, on motion of the defendants, issued Order21 dated October 4, 2004
recalling its previous order that gave due course to the OSG’s appeal. The ground for the
recall was the OSG’s failure to indicate in its notice of appeal the court to which the appeal
was being directed.22 The OSG moved for the reconsideration of the order but it was
denied by the RTC on March 16, 2005.
Thus, the OSG filed a special civil action for certiorari with the CA. On November 28, 2007,
the CA rendered the assailed decision dismissing the OSG’s petition on the grounds that
the petition was filed one day late and the RTC did not commit any grave abuse of
discretion when it dismissed Civil Case No. TM-1001 and the OSG’s notice of appeal. It ruled
that the OSG’s failure to indicate in its notice of appeal the court to which the appeal is
being taken violated Section 5, Rule 41 of the Rules of Civil Procedure, which provides,
among others, that "[t]he notice of appeal shall x x x specify the court to which the appeal
is being taken x x x." The CA also ruled that the OSG cannot claim lack of due process when
its deputized counsel was not served a notice of the pre-trial schedule. The CA disagreed
with the OSG’s contention that its deputized counsel should have been notified. According
to the CA, the OSG remains the principal counsel of the Republic and it is service on them
that is decisive, and having received the notice of pre-trial, it should have informed its
deputized counsel of the date. Aside from this, the authority given by the OSG to its
deputized counsel did not include the authority to enter into a compromise agreement,
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settle or stipulate on facts and admissions, which is a part of the pre-trial; hence, even if
the deputized counsel was present, the case would still be dismissed.
Ruling:
The power of the OSG to deputize legal officers of government departments, bureaus,
agencies and offices to assist it in representing the government is well settled. The
Administrative Code of 1987 explicitly states that the OSG shall have the power to "deputize
legal officers of government departments, bureaus, agencies and offices to assist the
Solicitor General and appear or represent the Government in cases involving their
respective offices, brought before the courts and exercise supervision and control over such
legal officers with respect to such cases."29 But it is likewise settled that the OSG’s
deputized counsel is "no more than the ‘surrogate’ of the Solicitor General in any particular
proceeding" and the latter remains the principal counsel entitled to be furnished copies of
all court orders, notices, and decisions.30 In this case, records show that it was the OSG
that first entered an appearance in behalf of the Republic; hence, it remains the principal
counsel of record. The appearance of the deputized counsel did not divest the OSG of
control over the case and did not make the deputized special attorney the counsel of
record.31 Thus, the RTC properly acted within bounds when it relied on the rule that it is
the notice to the OSG that is binding.32
Nonetheless, the OSG also pointed out that it specifically requested the RTC to likewise
furnish its deputized counsel with a copy of its notices. Records show that the deputized
counsel also requested that copies of notices and pleadings be furnished to him.33 Despite
these requests, it was only the OSG that the RTC furnished with copies of its notices. It
would have been more prudent for the RTC to have furnished the deputized counsel of its
notices. All the same, doing so does not necessarily clear the OSG from its obligation to
oversee the efficient handling of the case. And even if the deputized counsel was served
with copies of the court’s notices, orders and decisions, these will not be binding until they
are actually received by the OSG. More so in this case where the OSG’s Notice of
Appearance and its Letter deputizing the LRA even contained the caveat that it is only
notices of orders, resolutions and decisions served on the OSG that will bind the Republic,
the entity, agency and/or official represented.34 In fact, the proper basis for computing a
reglementary period and for determining whether a decision had attained finality is service
on the OSG. As was stated in National Power Corporation v. National Labor Relations
Commission:
The underlying justification for compelling service of pleadings, orders, notices and
decisions on the OSG as principal counsel is one and the same. As the lawyer for the
government or the government corporation involved, the OSG is entitled to the service of
said pleadings and decisions, whether the case is before the courts or before a quasi-judicial
agency such as respondent commission. Needless to say, a uniform rule for all cases
handled by the OSG simplifies procedure, prevents confusion and thus facilitates the
orderly administration of justice.
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The CA, therefore, cannot be faulted for upholding the RTC’s dismissal of Civil Case No.
TM-1001 due to the failure of the counsel for the Republic to appear during pre-trial despite
due notice.
The Court, likewise, cannot attribute error to the CA when it affirmed the RTC’s recall of
its order granting the OSG’s notice of appeal.The RTC simply applied the clear provisions
of Section 5, Rule 41 of the Rules of Court, which mandated that a "notice of appeal shall x
x x specify the court to which the appeal is being taken x x x."
Nevertheless, under the circumstances obtaining in this case, the Court resolves to relax
the stringent application of the rules, both on the matter of service of notices to the OSG
and its deputized counsel, and on the notice of appeal. Such relaxation of the rules is not
unprecedented.
In Cariaga v. People of the Philippines, the Court ruled that rules of procedure must be
viewed as tools to facilitate the attainment of justice such that its rigid and strict application
which results in technicalities tending to frustrate substantial justice must always be
avoided. In Ulep v. People of the Philippines, meanwhile, the Court ordered the remand of
the case to the proper appellate court, stating that the "petitioner’s failure to designate the
proper forum for her appeal was inadvertent," and that "[t]he omission did not appear to
be a dilatory tactic on her part."
Similarly in this case, the OSG’s omission should not work against the Republic. For one,
the OSG availed of the proper remedy in seeking a review of the RTC’s order of dismissal
by pursuing an ordinary appeal and filing a notice of appeal, albeit without stating where
the appeal will be taken. For another, it is quite elementary that an ordinary appeal from a
final decision/order of the RTC rendered in the exercise of its original jurisdiction can only
be elevated to the CA under Rule 41 of the Rules of Court.42 Moreover, as in Ulep, the OSG's
failure to designate where the appeal will be taken was a case of inadvertence and does not
appear to be a dilatory tactic on its part. More importantly, the OSG 's omission should not
redound to the Republic's disadvantage for it is a well-settled principle that the Republic is
never estopped by the mistakes or error committed by its officials or agents.43
Finally, the subject matter of the case before the RTC - the recovery by the Republic of a
342,842-sq m property in Cavite covered by an allegedly non-existent title - necessitates a
full-blown trial. To sustain the peremptory dismissal of Civil Case No. TM-1001 due to the
erroneous appreciation by the Republic's counsel of the applicable rules of procedure is an
abdication of the State's authority over lands of the public domain.44 Under the Regalian
doctrine, "all lands of the public domain belong to the State, and the State is the source of
any asserted right to ownership in land and charged with the conservation of such
patrimony." The Court, therefore, must exercise its equity jurisdiction and relax the rigid
application of the rules where strong considerations of substantial justice are manifest.
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SECRETARY LEILA DE LIMA, ASSISTANT STATE PROSECUTOR STEWART ALLAN
A. MARIANO, ASSISTANT STATE PROSECUTOR VIMAR M. BARCELLANO and
ASSISTANT STATE PROSECUTOR GERARD E. GAERLAN, Petitioners, vs. MARIO
JOEL T. REYES, Respondent.
January 11, 2016, G.R. No. 209330
Facts:
Dr. Gerardo Ortega (Dr. Ortega), also known as "Doc Gerry," was a veterinarian and anchor
of several radio shows in Palawan. On January 24, 2011, at around 10:30 am, he was shot
dead inside the Baguio Wagwagan Ukay-ukay in San Pedro, Puerto Princesa City, Palawan.
After a brief chase with police officers, Marlon B. Recamata was arrested. On the same day,
he made an extrajudicial confession admitting that he shot Dr. Ortega. He also implicated
Rodolfo "Bumar" O. Edrad (Edrad), Dennis C. Aranas, and Armando "Salbakotah" R. Noel,
Jr.
On February 6, 2011, Edrad executed a Sinumpaang Salaysay before the Counter-Terrorism
Division of the National Bureau of Investigation where he alleged that it was former
Palawan Governor Mario Joel T. Reyes (former Governor Reyes) who ordered the killing of
Dr. Ortega.
On February 7, 2011, Secretary of Justice Leila De Lima issued Department Order No. 0918
creating a special panel of prosecutors (First Panel) to conduct preliminary investigation.
The First Panel was composed of Senior Assistant Prosecutor Edwin S. Dayog, Assistant
State Prosecutor Bryan Jacinto S. Cacha, and Assistant State Prosecutor John Benedict D.
Medina.
On February 14, 2011, Dr. Patria Gloria Inocencio-Ortega (Dr. Inocencio-Ortega), Dr.
Ortega's wife, filed a Supplemental Affidavit-Complaint implicating former Governor Reyes
as the mastermind of her husband's murder. Former Governor Reyes' brother, Coron Mayor
Mario T. Reyes, Jr., former Marinduque Governor Jose T. Carreon, former Provincial
Administrator Atty. Romeo Seratubias, Marlon Recamata, Dennis Aranas, Valentin Lesias,
Arturo D. Regalado; Armando Noel, Rodolfo O. Edrad, and several John and Jane Does were
also implicated.
On June 8, 2011, the First Panel concluded its preliminary investigation and issued the
Resolution dismissing the Affidavit-Complaint.
On June 28, 2011, Dr. Inocencio-Ortega filed a Motion to Re-Open Preliminary
Investigation, which, among others, sought the admission of mobile phone
communications between former Governor Reyes and Edrad. On July 7, 2011, while the
Motion to Re-Open was still pending, Dr. Inocencio-Ortega filed a Motion for Partial
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Reconsideration Ad Cautelam of the Resolution dated June 8, 2011. Both Motions were
denied by the First Panel in the Resolution dated September 2, 2011.
On September 7, 2011, the Secretary of Justice issued Department Order No. 710 creating a
new panel of investigators (Second Panel) to conduct a reinvestigation of the case. The
Second Panel was composed of Assistant State Prosecutor Stewart Allan M. Mariano,
Assistant State Prosecutor Vimar M. Barcellano, and Assistant State Prosecutor Gerard E.
Gaerlan.
Department Order No. 710 ordered the reinvestigation of the case "in the interest of service
and due process" to address the offer of additional evidence denied by the First Panel in its
Resolution dated September 2, 2011. The Department Order also revoked Department
Order No. 091.
Pursuant to Department Order No. 710, the Second Panel issued a Subpoena requiring
former Governor Reyes to appear before them on October 6 and 13, 2011 and to submit his
counter-affidavit and supporting evidence.
On September 29, 2011, Dr. Inocencio-Ortega filed before the Secretary of Justice a Petition
for Review (Ad Cautelam) assailing the First Panel's Resolution dated September 2, 2011.
On October 3, 2011, former Governor Reyes filed before the Court of Appeals a Petition for
Certiorari and Prohibition with Prayer for a Writ of Preliminary Injunction and/or
Temporary Restraining Order assailing the creation of the Second Panel. In his Petition, he
argued that the Secretary of Justice gravely abused her discretion when she constituted a
new panel. He also argued that the parties were already afforded due process and that the
evidence to be addressed by the reinvestigation was neither new nor material to the case.
On March 12, 2012, the Second Panel issued the Resolution finding probable cause and
recommending the filing of informations on all accused, including former Governor Reyes.
Branch 52 of the Regional Trial Court of Palawan subsequently issued warrants of arrest on
March 27, 2012. However, the warrants against former Governor Reyes and his brother were
ineffective since the two allegedly left the country days before the warrants could be served.
On March 29, 2012, former Governor Reyes filed before the Secretary of Justice a Petition
for Review Ad Cautelam assailing the Second Panel's Resolution dated March 12, 2012.
On April 2, 2012, he also filed before the Court of Appeals a Supplemental Petition for
Certiorari and Prohibition with Prayer for Writ of Preliminary Injunction and/or
Temporary Restraining Order impleading Branch 52 of the Regional Trial Court of Palawan.
In his Supplemental Petition, former Governor Reyes argued that the Regional Trial Court
could not enforce the Second Panel's Resolution dated March 12, 2012 and proceed with the
prosecution of his case since this Resolution was void.
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On March 19, 2013, the Court of Appeals, in a Special Division of Five, rendered the
Decision26 declaring Department Order No. 710 null and void and reinstating the First
Panel's Resolutions dated June 8, 2011 and September 2, 2011.
According to the Court of Appeals, the Secretary of Justice committed grave abuse of
discretion when she issued Department Order No. 710 and created the Second Panel. The
Court of Appeals found that she should have modified or reversed the Resolutions of the
First Panel pursuant to the 2000 NPS Rule on Appeal27 instead of issuing Department'
Order No. 710 and creating the Second Panel. It found that because of her failure to follow
the procedure in the 2000 NPS Rule on Appeal, two Petitions for Review Ad Cautelam filed
by the opposing parties were pending before her.
The Court of Appeals also found that the Secretary of Justice's admission that the issuance
of Department Order No. 710 did not set aside the First Panel's Resolution dated June 8,
2011 and September 2, 2011 "[compounded] the already anomalous situation." It also stated
that Department Order No. 710 did not give the Second Panel the power to reverse, affirm,
or modify the Resolutions of the First Panel; therefore, the Second Panel did not have the
authority to assess the admissibility and weight of any existing or additional evidence.
The Secretary of Justice, the Second Panel, and Dr. Inocencio-Ortega filed a Motion for
Reconsideration of the Decision dated March 19, 2013. The Motion, however, was denied
by the Court of Appeals in the Resolution31 dated September 27, 2013.
In its Resolution, the Court of Appeals stated that the Secretary of Justice had not shown
the alleged miscarriage of justice sought to be prevented by the creation of the Second
Panel since both parties were given full opportunity to present their evidence before the
First Panel. It also ruled that the evidence examined by the Second Panel was not additional
evidence but "forgotten evidence" that was already available before the First Panel during
the conduct of the preliminary investigation.
Aggrieved, the Secretary of Justice and the Second Panel elevated the ruling of the Court of
Appeals to the Supreme Court.
Issue:
Whether the issuance of Department Order No. 710 was an executive function beyond the
scope of a petition for certiorari or prohibition.
Ruling:
The determination by the Department of Justice of the existence of probable cause is not a
quasi-judicial proceeding. However, the actions of the Secretary of Justice in affirming or
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reversing the findings of prosecutors may still be subject to judicial review if it is tainted
with grave abuse of discretion.
Under the Rules of Court, a writ of certiorari is directed against "any tribunal, board or
officer exercising judicial or quasi-judicial functions." A quasi-judicial function is "the
action, discretion, etc., of public administrative officers or bodies, who are required to
investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions
from them, as a basis for their official action and to exercise discretion of a judicial nature."
Otherwise stated, an administrative agency performs quasi-judicial functions if it renders
awards, determines the rights of opposing parties, or if their decisions have the same effect
as the judgment of a court.
In a preliminary investigation, the prosecutor does not determine the guilt or
innocence of an accused. The prosecutor only determines "whether there is
sufficient ground to engender a well-founded belief that a crime has been
committed and the respondent is probably guilty thereof, and should be held
for trial." As such, the prosecutor does not perform quasi-judicial functions.
In Santos v. Go:
[T]he prosecutor in a preliminary investigation does not determine the guilt or
innocence of the accused. He does not exercise adjudication nor rule-making
functions. Preliminary investigation is merely inquisitorial, and is often the only
means of discovering the persons who may be reasonably charged with a crime
and to enable the fiscal to prepare his complaint or information. It is not a trial
of the case on the merits and has no purpose except that of determining whether
a crime has been committed and whether there is probable cause to believe that
the accused is guilty thereof. While the fiscal makes that determination, he
cannot be said to be acting as a quasi-court, for it is the courts, ultimately, that
pass judgment on the accused, not the fiscal.
Though some cases describe the public prosecutors power to conduct a
preliminary investigation as quasi-judicial in nature, this is true only to the
extent that, like quasi-judicial bodies, the prosecutor is an officer of the
executive department exercising powers akin to those of a court, and the
similarity ends at this point. A quasi-judicial body is as an organ of government
other than a court and other than a legislature which affects the rights of private
parties through either adjudication or rule-making. A quasi-judicial agency
performs adjudicatory functions such that its awards, determine the rights of
parties, and their decisions have the same effect as judgments of a court. Such
is not the case when a public prosecutor conducts a preliminary investigation to
determine probable cause to file an information against a person charged with
a criminal offense, or when the Secretary of Justice is reviewing the formers
order or resolutions.
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In Spouses Dacudao v. Secretary of Justice, a petition for certiorari, prohibition, and.
mandamus was filed.against the Secretary of Justice's issuance of a department order. The
assailed order directed all prosecutors to forward all cases already filed against Celso de los
Angeles of the Legacy Group to the Secretariat of the Special Panel created by the
Department of Justice.
This court dismissed the petition on the ground that petitions for certiorari and prohibition
are directed only to tribunals that exercise judicial or quasi-judicial functions. The issuance
of the department order was a purely administrative or executive function of the Secretary
of Justice. While the Department of Justice may perform functions similar to that of a court
of law, it is not a quasi-judicial agency:
The fact that the DOJ is the primary prosecution arm of the Government does not
make it a quasi-judicial office or agency. Its preliminary investigation of cases is
not a quasi-judicial proceeding. Nor does the DOJ exercise a quasi-judicial
function when it reviews the findings of a public prosecutor on the finding of
probable cause in any case. Indeed, in Bautista v. Court of Appeals, the Supreme
Court has held that a preliminary investigation is not a quasi-judicial
proceeding, stating:
... [t]he prosecutor in a preliminary investigation does not determine
the guilt or innocence of the accused. He does not exercise
adjudication nor rule-making functions. Preliminary investigation is
merely inquisitorial, and is often the only means of discovering the
persons who may be reasonably charged with a crime and to enable
the fiscal to prepare his complaint or information. It is not a trial of
the case on the merits and has no purpose except that of determining
whether a crime has been committed and whether there is probable
cause to believe that the accused is guilty thereof. While the fiscal
makes that determination, he cannot be said to be acting as a quasicourt, for it is the courts, ultimately, that pass judgment on the
accused, not the fiscal.
There may be some decisions of the Court that have characterized
the public prosecutor's power to conduct a preliminary investigation
as quasi-judicial in nature. Still, this characterization is true only to
the extent that the public prosecutor, like a quasi-judicial body, is an
officer of the executive department exercising powers akin to those
of a court of law.
But the limited similarity. between the public prosecutor and a quasijudicial body quickly ends there. For sure, a quasi-judicial body is an
organ of government other than a court of law or a legislative office
that affects the rights of private parties through either adjudication
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or rulemaking; it performs adjudicatory functions, and its awards and
adjudications determine the rights of the parties coming before it; its
decisions have the same effect as the judgments of a court of law. In
contrast, that is not the effect whenever a public prosecutor conducts
a preliminary investigation to determine. probable cause in order to
file a criminal information against a person properly charged with
the offense, or whenever the Secretary of Justice reviews the public
prosecutor's orders or resolutions. (Emphasis supplied)
Similarly, in Callo-Claridad v. Esteban, we have stated that a petition for review under Rule
43 of the Rules of Court cannot be brought to assail the Secretary of Justice's resolution
dismissing a complaint for lack of probable cause since this is an "essentially executive
function":
A petition for review under Rule 43 is a mode of appeal to be taken only to review
the decisions, resolutions or awards by the quasi-judicial officers, agencies or
bodies, particularly those specified in Section 1 of Rule 43. In the matter before
us, however, the Secretary of Justice was not an officer performing a quasijudicial function. In reviewing the findings of the OCP of Quezon City on the
matter of probable cause, the Secretary of Justice performed an essentially
executive function to determine whether the crime alleged against the
respondents was committed, and whether there was 'probable cause to believe
that the respondents were guilty thereof.
A writ of prohibition, on the other hand, is directed against "the proceedings of any
tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial
or ministerial functions." The Department of Justice is not a court of law and its officers do
not perform quasi-judicial functions. The Secretary of Justice's review of the resolutions of
prosecutors is also not a ministerial function.
An act is considered ministerial if "an officer or tribunal performs in the context of a given
set of facts, in a prescribed manner and without regard for the exercise of his or its own
judgment, upon the propriety or impropriety of the act done." In contrast, an act is
considered discretionary "[i]f the law imposes a duty upon a public officer, and gives him
the right to decide how or when the duty shall be performed." Considering that "full
discretionary authority has been delegated to the executive branch in the determination of
probable cause during a preliminary investigation," the functions of the prosecutors and
the Secretary of Justice are not ministerial.
However, even when an administrative agency does not perform a judicial, quasi-judicial,
or ministerial function, the Constitution mandates the exercise of judicial review when
there is an allegation of grave abuse of discretion. In Auto Prominence Corporation v.
Winterkorn:
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In ascertaining whether the Secretary of Justice committed grave abuse of
discretion amounting to lack or excess of jurisdiction in his determination of the
existence of probable cause, the party seeking the writ of certiorari must be able
to establish that the Secretary of Justice exercised his executive power in an
arbitrary and despotic manner, by reason of passion or personal hostility, and
the abuse of discretion must be so patent and gross as would amount to an
evasion or to a unilateral refusal to perform the duty enjoined or to act in
contemplation of law. Grave abuse of discretion is not enough; it must amount
to lack or excess of jurisdiction. Excess of jurisdiction signifies that he had
jurisdiction over the case, but (he) transcended the same or acted without
authority.
Therefore, any question on whether the Secretary of Justice committed grave abuse of
discretion amounting to lack or excess of jurisdiction in affirming, reversing, or modifying
the resolutions of prosecutors may be the subject of a petition for certiorari under Rule 65
of the Rules of Court.
SPOUSES RICARDO and EVELYN MARCELO v. JUDGE RAMSEY DOMINGO G.
PICHAY, METROPOLITAN TRIAL COURT, BRANCH 78, PARANAQUE CITY
A.M. No. MTJ-13-1838, March 12, 2014
J. Perlas-Bernabe
The Constitution requires our courts to conscientiously observe the time periods
in deciding cases and resolving matters brought to their adjudication, which, for lower
courts, is three (3) months from the date they are deemed submitted for decision or
resolution.
Facts:
Complainants Sps. Marcelo were the plaintiffs in a case for unlawful detainer before the
Metropolitan Trial Court of Parañaque City which involved a property located at Marcelo
Compound, Philip Street Extension, Barangay Moonwalk, Parañaque. By virtue of a writ of
execution, Sps. Marcelo obtained the possession of the subject property. However Sps.
Magopoy successfully re-entered the subject property and regained its possession.
On June 5, 2009, Sps. Marcelo filed an Ex-Parte Constancia in view of the continued refusal
of Sps. Magopoy to surrender the subject property. Thereafter, Judge Pichay issued an
Order giving Sheriff Epres three days within which to effect the eviction from the subject
property. Consequently, Sps. Magopoy filed a motion for reconsideration which was
opposed by the petitioners.
The hearing on the aforesaid motion was conducted. In compliance, Sps. Magopoy were
directed to file their reply. Sps. Magopoy filed their Supplemental Motion and Reply
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alleging that the miscellaneous sales application of Sps. Marcelo over the subject property
had been denied by the Department of Environment and Natural Resources. Sps. Marcelo
filed a motion submitting all incidents for resolution.
Instead of resolving the pending incidents, Judge Pichay, in an Order dated October 1, 2009,
directed Sps. Marcelo to file their comment and/or opposition to the supplemental motion
within five (5) days from receipt of the order, with a warning that upon the expiration of
said period, the court will resolve the pending incidents. Sps. Marcelo failed to file their
comment and/or opposition. Nonetheless, Judge Pichay, set Sps. Magopoy’s previous
motion for reconsideration as well as their supplemental motion for hearing on February
12, 2010, March 16, 2010 and June 15, 2010.As a consequence of Judge Pichay's action, Sps.
Marcelo filed an administrative complaint before the Office of the Court Administrator
(OCA), charging him with inordinate delay in the disposition of the pending incidents
relating to the implementation of the writ of execution. The OCA recommended that Judge
Pichay be held administratively liable for undue delay in the resolution of the pending case.
Issue:
Whether or not Judge Pichay should be held administratively liable for undue delay in the
resolution of the pending incidents in the case
Ruling:
Yes.
Section 15 (2), Article VIII of the 1987 Constitution states that "a case or matter shall be
deemed submitted for decision or resolution upon the filing of the last pleading, brief, or
memorandum required by the Rules of Court or by the court itself."
Judge Ramsey Domingo G. Pichay failed to resolve the subject motions, namely the motion
for reconsideration and supplemental motion, within the three month-period prescribed
therefor. Records show that Sps. Marcelo’s period to file their comment/opposition to the
supplemental motion and/ or rejoinder to the reply lapsed on October 18, 2009, at which
time, the pending incidents were already deemed submitted for resolution.
Notwithstanding that the matter had already been submitted for resolution, Judge Pichay
continued with the proceedings by setting the motions for hearing to the effect of
unreasonably delaying the execution of the subject decision. Indeed, while it has been held
that a presiding judge shall at all times remain in firm control of the proceedings, he is
nevertheless mandated to adopt a policy against unwarranted delays.
Ejectment cases are summary proceedings intended to provide an expeditious means of
protecting actual possession or right of possession of property, and it becomes mandatory
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or ministerial duty of the court to issue a writ of execution to enforce the judgment which
has become executory.
In this case, Judge Pichay did not sufficiently explain the reasons as to why he failed to
resolve the pending incidents on time, as well as to why he still had to set the same for
hearing and repeatedly grant postponements therefor, either motu proprio or by motion,
despite the summary nature of ejectment proceedings and the ministerial nature of the
subsequent issuance of a writ of execution.
Respondent Judge Pichay is found GUILTY of violating Section 9, Rule 140 of the Rules of
Court for undue delay in resolving the pending incidents relative to the implementation of
the writ of execution and is thus FINED in the amount of P12,000.00.
ALLIANCE FOR NATIONALISM AND DEMOCRACY (ANAD), vs. COMMISSION ON
ELECTIONS
G.R. No. 206987, September 10, 2013
J. Perez
Factual findings of administrative bodies will not be disturbed by the courts of justice
except when there is absolutely no evidence or no substantial evidence in support of such
findings should be applied with greater force when it concerns the COMELEC, as the
framers of the Constitution intended to place the COMELEC – created and explicitly made
independent by the Constitution itself – on a level higher than statutory administrative
organs. The COMELEC has broad powers to ascertain the true results of the election by
means available to it. For the attainment of that end, it is not strictly bound by the rules of
evidence.
The COMELEC may motu proprio cancel, after due notice and hearing, the registration of
any party-list organization if it violates or fails to comply with laws, rules or regulations
relating to elections.
Facts:
On 7 November 2012, the COMELEC En Banc promulgated a Resolution cancelling
petitioner’s Certificate of Registration and/or Accreditation on three grounds, to wit:
I.
Petitioner ANAD does not belong to, or come within the ambit of, the marginalized and
underrepresented sectors enumerated in Section 5 of R.A. No.
II.
There is no proof showing that nominees are actually nominated by ANAD itself. That
having only three (3) nominees, ANAD failed to comply with the procedural requirements
set forth in Section 4, Rule 3 of Resolution No. 9366.
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III.
ANAD failed to submit its Statement of Contributions and Expenditures for the 2007
National and Local Elections as required by Section 14 of Republic Act No. 7166.
ANAD went before this Court challenging the above-mentioned resolution. Court
remanded the case to the COMELEC for re-evaluation in accordance with the parameters
prescribed in the aforesaid decision.
In the assailed Resolution dated 11 May 2013, the COMELEC affirmed the cancellation of
petitioner’s Certificate of Registration and/or Accreditation and disqualified it from
participating in the 2013 Elections. Hence, this Petition for Certiorari with Urgent Prayer
for the Issuance of a Temporary Restraining Order and Writ of Mandamus, seeking to
compel the COMELEC to canvass the votes cast for petitioner in the recently held 2013
Party-List Elections
Issue:
Whether COMELEC gravely abused its discretion in promulgating the assailed Resolution
cancelling petitioner’s Certificate of Registration and/or Accreditation.
Ruling:
The petition is dismissed.
ANAD claims that the COMELEC gravely abused its discretion when it promulgated the
assailed Resolution without giving ANAD the benefit of a summary evidentiary hearing,
thus violating its right to due process. It is to be noted, however, that ANAD was already
afforded a summary hearing on 23 August 2013, during which ANAD’s president
authenticated documents and answered questions from the members of the COMELEC
pertinent to ANAD’s qualifications.
The COMELEC held that while ANAD can be classified as a sectoral party lacking in welldefined political constituencies, its disqualification still subsists for violation of election
laws and regulations, particularly for its failure to submit at least five nominees, and for its
failure to submit its Statement of Contributions and Expenditures for the 2007 Elections.
As found by the COMELEC, ANAD, for unknown reasons, submitted only three nominees
instead of five, in violation of Sec. 8 of R.A. No. 7941( An Act Providing for the Election of
Party-List Representatives through the Party-List System, and Appropriating Funds
Therefor). Such factual finding of the COMELEC was based on the Certificate of
Nomination presented and marked by petitioner during the 22 and 23 August 2012
summary hearings.
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Compliance with Section 8 of R.A. No. 7941 is essential as the said provision is a safeguard
against arbitrariness. Section 8 of R.A. No. 7941 rids a party-list organization of the
prerogative to substitute and replace its nominees, or even to switch the order of the
nominees, after submission of the list to the COMELEC.
In Lokin, Jr. v. Comelec, the Court discussed the importance of Sec.8 of R.A. No. 7941 in
this wise:
The prohibition is not arbitrary or capricious; neither is it without reason on the part of
lawmakers. The COMELEC can rightly presume from the submission of the list that the list
reflects the true will of the party-list organization. The COMELEC will not concern itself
with whether or not the list contains the real intended nominees of the party-list
organization, but will only determine whether the nominees pass all the requirements
prescribed by the law and whether or not the nominees possess all the qualifications and
none of the disqualifications. Thereafter, the names of the nominees will be published in
newspapers of general circulation. Although the people vote for the party-list organization
itself in a party-list system of election, not for the individual nominees, they still have the
right to know who the nominees of any particular party-list organization are. The
publication of the list of the party-list nominees in newspapers of general circulation serves
that right of the people, enabling the voters to make intelligent and informed choices. In
contrast, allowing the party-list organization to change its nominees through withdrawal
of their nominations, or to alter the order of the nominations after the submission of the
list of nominees circumvents the voters’ demand for transparency. The lawmakers’
exclusion of such arbitrary withdrawal has eliminated the possibility of such
circumvention.
Moreover, the COMELEC also noted ANAD’s failure to submit a proper Statement of
Contributions and Expenditures for the 2007 Elections, in violation of COMELEC
Resolution No. 9476.
An incomplete statement, or a statement that does not contain all the required information
and attachments, or does not conform to the prescribed form, shall be considered as not
filed and shall subject the candidate or party treasurer to the penalties prescribed by law.
As found by the COMELEC, ANAD failed to comply with the above-mentioned
requirements as the exhibits submitted by ANAD consisted mainly of a list of total
contributions from other persons, a list of official receipts and amounts without
corresponding receipts, and a list of expenditures based on order slips and donations
without distinction as to whether the amounts listed were advanced subject to
reimbursement or donated. This factual finding was neither contested nor rebutted by
ANAD.
As empowered by law, the COMELEC may motu proprio cancel, after due notice and
hearing, the registration of any party-list organization if it violates or fails to comply with
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laws, rules or regulations relating to elections. Thus, we find no grave abuse of discretion
on the part of the COMELEC when it issued the assailed Resolution dated 11 May 2013.
BELGICA ET. AL VS. OCHOA JR.
SJS VS. DRILON ET. AL
NEPOMUCENO VS. PRESIDENT AQUINO III
G.R. No. 208566, G.R. No. 208493, G.R. No. 209251, November 19, 2013
J. PERLAS-BERNABE
Facts:
Before the Court are consolidated petitions taken under Rule 65 of the Rules of Court, all
of which assail the constitutionality of the Pork Barrel System.
Petitioner Samson S. Alcantara, President of the Social Justice Society, filed a Petition for
Prohibition of even date under Rule 65 of the Rules of Court, seeking that the "Pork Barrel
System" be declared unconstitutional, and a writ of prohibition be issued permanently
restraining respondents Franklin M. Drilon and Feliciano S. Belmonte, Jr., in their
respective capacities as the incumbent Senate President and Speaker of the House of
Representatives, from further taking any steps to enact legislation appropriating funds for
the "Pork Barrel System," in whatever form and by whatever name it may be called, and
from approving further releases pursuant thereto. The Alcantara Petition was docketed as
G.R. No. 208493.
Petitioners Belgica, et al., and Villegas filed an Urgent Petition For Certiorari and
Prohibition With Prayer For The Immediate Issuance of Temporary Restraining Order
(TRO) and/or Writ of Preliminary Injunction under Rule 65 of the Rules of Court (Belgica
Petition), seeking that the annual "Pork Barrel System," presently embodied in the
provisions of the GAA of 2013 which provided for the 2013 PDAF, and the Executive‘s lumpsum, discretionary funds, such as the Malampaya Funds and the Presidential Social
Fund, be declared unconstitutional and null and void for being acts constituting grave
abuse of discretion. Also, they pray that the Court issue a TRO against respondents Paquito
N. Ochoa, Jr., Secretary Abad and Rosalia V. De Leon, in their respective capacities as the
incumbent Executive Secretary, Secretary of the DBM, and National Treasurer, or their
agents, for them to immediately cease any expenditure under the aforesaid funds. Further,
they pray that the Court order the foregoing respondents to release to the CoA and to the
public: (a) "the complete schedule/list of legislators who have availed of their PDAF and
VILP from the years 2003 to 2013, specifying the use of the funds, the project or activity and
the recipient entities or individuals, and all pertinent data thereto"; and (b) "the use of the
Executive‘s lump-sum, discretionary funds, including the proceeds from the Malampaya
Funds and remittances from the PAGCOR from 2003 to 2013, specifying the project or
activity and the recipient entities or individuals, and all pertinent data thereto." Also, they
pray for the "inclusion in budgetary deliberations with the Congress of all presently offPage 203 of 1446
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budget, lump-sum, discretionary funds including, but not limited to, proceeds from the
Malampaya Funds and remittances from the PAGCOR." The Belgica Petition was docketed
as G.R. No. 208566.
Lastly, petitioner Pedrito M. Nepomuceno (Nepomuceno), filed a Petition seeking that the
PDAF be declared unconstitutional, and a cease and desist order be issued restraining
President Aquino and Secretary Abad from releasing such funds to Members of Congress
and, instead, allow their release to fund priority projects identified and approved by the
Local Development Councils in consultation with the executive departments, such as the
DPWH, the Department of Tourism, the Department of Health, the Department of
Transportation, and Communication and the National Economic Development
Authority. The Nepomuceno Petition was docketed as UDK-14951.
The Court issued a Resolution (a) consolidating all cases; (b) requiring public respondents
to comment on the consolidated petitions; (c) issuing a TRO enjoining the DBM, National
Treasurer, the Executive Secretary, or any of the persons acting under their authority from
releasing (1) the remaining PDAF allocated to Members of Congress under the GAA of 2013,
and (2) Malampaya Funds under the phrase "for such other purposes as may be hereafter
directed by the President" pursuant to Section 8 of PD 910 but not for the purpose of
"financing energy resource development and exploitation programs and projects of the
government‖ under the same provision; and (d) setting the consolidated cases for Oral
Arguments on October 8, 2013.
The OSG filed a Consolidated Comment before the Court, seeking the lifting, or in the
alternative, the partial lifting with respect to educational and medical assistance purposes
and that the consolidated petitions be dismissed for lack of merit.
The Court issued a Resolution of even date directing petitioners to reply to the Comment.
Petitioners, with the exception of Nepomuceno, filed their respective replies to the
Comment. The Oral Arguments were conducted. Thereafter, the Court directed the parties
to submit their respective memoranda which the parties subsequently did.
Issues:
A. Procedural Issues
1. Whether the issues raised in the consolidated petitions involve an actual and
justiciable controversy.
2. Whether the issues raised in the consolidated petitions are matters of policy subject
to judicial review.
3. Whether petitioners have legal standing to sue.
4. Whether the 1994 Decision of the Supreme Court on Philippine Constitution
Association v. Enriquez (Philconsa) and the 2012 Decision of the Court on Lawyers
Against Monopoly and Poverty v. Secretary of Budget and Management (LAMP) bar
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the re-litigation of the issue of constitutionality of the “pork barrel system” under
the principles of res judicata and stare decisis.
B. Substantive Issues on the Congressional Pork Barrel
Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel Laws similar
thereto are unconstitutional considering that they violate the principles of/constitutional
provisions on:
1.
2.
3.
4.
5.
6.
separation of powers
non-delegability of legislative power
checks and balances
accountability
political dynasties
local autonomy.
C. Substantive Issues on the Presidential Pork Barrel.
Whether the phrases (a) "and for such other purposes as may be hereafter directed by the
President" under Section 8 of PD 910, relating to the Malampaya Funds, and (b) "to finance
the priority infrastructure development projects and to finance the restoration of damaged
or destroyed facilities due to calamities, as may be directed and authorized by the Office of
the President of the Philippines" under Section 12 of PD 1869, as amended by PD 1993,
relating to the Presidential Social Fund, are unconstitutional insofar as they constitute
undue delegations of legislative power.
Ruling:
A. PROCEDURAL ISSUES
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: (a) there must be an actual case or controversy calling for the
exercise of judicial power; (b) the person challenging the act must have the standing to
question the validity of the subject act or issuance; (c) the question of constitutionality
must be raised at the earliest opportunity; and (d) the issue of constitutionality must be
the very lis mota of the case.
1. YES. Jurisprudence provides that an actual case or controversy is one where “there
must be a contrariety of legal rights that can be interpreted and enforced on the
basis of existing law and jurisprudence.” 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. It is a prerequisite that something had then been accomplished or
performed by either branch before a court may come into the picture, and the
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petitioner must allege the existence of an immediate or threatened injury to itself as
a result of the challenged action.“
Based on these principles, there exists an actual and justiciable controversy in these cases.
The requirement of contrariety of legal rights is clearly satisfied by the antagonistic
positions of the parties on the constitutionality of the “Pork Barrel System.” Also, the
questions in these consolidated cases are ripe for adjudication since the challenged funds
and the provisions allowing for their utilization – such as the 2013 GAA for the PDAF, PD
910 for the Malampaya Funds and PD 1869, as amended by PD 1993, for the Presidential
Social Fund – are currently existing and operational; hence, there exists an immediate or
threatened injury to petitioners as a result of the unconstitutional use of these public funds.
As for the PDAF, the Court dispelled the notion that the issues related thereto had been
rendered moot and academic by the reforms undertaken by respondents. A case becomes
moot when there is no more actual controversy between the parties or no useful purpose
can be served in passing upon the merits. The respondents’ proposed line-item budgeting
scheme would not terminate the controversy nor diminish the useful purpose for its
resolution since said reform is geared towards the 2014 budget, and not the 2013 PDAF
Article which, being a distinct subject matter, remains legally effective and existing. Neither
will the President’s declaration that he had already “abolished the PDAF” render the issues
on PDAF moot precisely because the Executive branch of government has no constitutional
authority to nullify or annul its legal existence.
Even on the assumption of mootness, jurisprudence, nevertheless, dictates that “the ‘moot
and academic’ principle is not a magical formula that can automatically dissuade the Court
in resolving a case.” The Court will decide cases, otherwise moot, if:
I.
There is a grave violation of the Constitution: This is clear from the fundamental
posture of petitioners – they essentially allege grave violations of the Constitution
with respect to the principles of separation of powers, non-delegability of legislative
power, checks and balances, accountability and local autonomy.
II.
The exceptional character of the situation and the paramount public interest is
involved: This is also apparent from the nature of the interests involved – the
constitutionality of the very system within which significant amounts of public
funds have been and continue to be utilized and expended undoubtedly presents a
situation of exceptional character as well as a matter of paramount public interest.
The present petitions, in fact, have been lodged at a time when the system’s flaws
have never before been magnified. To the Court’s mind, the coalescence of the CoA
Report, the accounts of numerous whistle-blowers, and the government’s own
recognition that reforms are needed “to address the reported abuses of the PDAF”
demonstrates a prima facie pattern of abuse which only underscores the importance
of the matter. It is also by this finding that the Court finds petitioners’ claims as not
merely theorized, speculative or hypothetical. Of note is the weight accorded by the
Court to the findings made by the CoA which is the constitutionally-mandated audit
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arm of the government. if only for the purpose of validating the existence of an
actual and justiciable controversy in these cases, the Court deems the findings under
the CoA Report to be sufficient.
III.
When the constitutional issue raised requires formulation of controlling principles
to guide the bench, the bar, and the public: This is applicable largely due to the
practical need for a definitive ruling on the system’s constitutionality. As disclosed
during the Oral Arguments, the CoA Chairperson estimates that thousands of
notices of disallowances will be issued by her office in connection with the findings
made in the CoA Report. In this relation, Justice Leonen pointed out that all of these
would eventually find their way to the courts. Accordingly, there is a compelling
need to formulate controlling principles relative to the issues raised herein in order
to guide the bench, the bar, and the public, not just for the expeditious resolution
of the anticipated disallowance cases, but more importantly, so that the government
may be guided on how public funds should be utilized in accordance with
constitutional principles.
IV.
The case is capable of repetition yet evading review. This is called for by the
recognition that the preparation and passage of the national budget is, by
constitutional imprimatur, an affair of annual occurrence. The relevance of the
issues before the Court does not cease with the passage of a “PDAF­-free budget for
2014.” The evolution of the “Pork Barrel System,” by its multifarious iterations
throughout the course of history, lends a semblance of truth to petitioners’ claim
that “the same dog will just resurface wearing a different collar.” The myriad of issues
underlying the manner in which certain public funds are spent, if not resolved at
this most opportune time, are capable of repetition and hence, must not evade
judicial review.
2. YES. The intrinsic constitutionality of the “Pork Barrel System” is not an issue
dependent upon the wisdom of the political branches of government but rather a
legal one which the Constitution itself has commanded the Court to act upon.
Scrutinizing the contours of the system along constitutional lines is a task that the
political branches of government are incapable of rendering precisely because it is
an exercise of judicial power. More importantly, the present Constitution has not
only vested the Judiciary the right to exercise judicial power but essentially makes it
a duty to proceed therewith. Section 1, Article VIII of the 1987 Constitution cannot
be any clearer: “The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law. [It] 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.”
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3. YES. Petitioners have sufficient locus standi to file the instant cases. Petitioners have
come before the Court in their respective capacities as citizen-taxpayers and
accordingly, assert that they “dutifully contribute to the coffers of the National
Treasury.” As taxpayers, they possess the requisite standing to question the validity
of the existing “Pork Barrel System” under which the taxes they pay have been and
continue to be utilized. They are bound to suffer from the unconstitutional usage of
public funds, if the Court so rules. Invariably, taxpayers have been 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 public funds are wasted through
the enforcement of an invalid or unconstitutional law, as in these cases.
Moreover, as citizens, petitioners have equally fulfilled the standing requirement given that
the issues they have raised may be classified as matters “of transcendental importance, of
overreaching significance to society, or of paramount public interest.” The CoA
Chairperson’s statement during the Oral Arguments that the present controversy involves
“not [merely] a systems failure” but a “complete breakdown of controls” amplifies the
seriousness of the issues involved. Indeed, of greater import than the damage caused by the
illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law
by the enforcement of an invalid statute.
4. NO. On the one hand, res judicata states that a judgment on the merits in a previous
case rendered by a court of competent jurisdiction would bind a subsequent case if,
between the first and second actions, there exists an identity of parties, of subject
matter, and of causes of action. This required identity is not attendant hereto since
Philconsa and LAMP involved constitutional challenges against the 1994 CDF
Article and 2004 PDAF Article respectively. However, the cases at bar call for a
broader constitutional scrutiny of the entire “Pork Barrel System”. Also, the ruling
in LAMP is essentially a dismissal based on a procedural technicality – and, thus,
hardly a judgment on the merits. Thus, res judicata cannot apply.
On the other hand, the doctrine of stare decisis is a bar to any attempt to re-litigate where
the same questions relating to the same event have been put forward by the parties
similarly situated as in a previous case litigated and decided by a competent court. Absent
any powerful countervailing considerations, like cases ought to be decided alike. Philconsa
was a limited response to a separation of powers problem, specifically on the propriety of
conferring post-enactment identification authority to Members of Congress. On the
contrary, the present cases call for a more holistic examination of (a) the inter-relation
between the CDF and PDAF Articles with each other, formative as they are of the entire
“Pork Barrel System” as well as (b) the intra-relation of post-enactment measures contained
within a particular CDF or PDAF Article, including not only those related to the area of
project identification but also to the areas of fund release and realignment. The complexity
of the issues and the broader legal analyses herein warranted may be, therefore, considered
as a powerful countervailing reason against a wholesale application of the stare decisis
principle.
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In addition, the Court observes that the Philconsa ruling was actually riddled with inherent
constitutional inconsistencies which similarly countervail against a full resort to stare
decisis. Since the Court now benefits from hindsight and current findings (such as the CoA
Report), it must partially abandon its previous ruling in Philconsa insofar as it validated
the post-enactment identification authority of Members of Congress on the guise that the
same was merely recommendatory.
Again, since LAMP was dismissed on a procedural technicality and, hence, has not set any
controlling doctrine susceptible of current application to the substantive issues in these
cases, stare decisis would not apply.
B. SUBSTANTIVE ISSUES ON CONGRESSIONAL PORK BARREL
1. YES. At its core, legislators have been consistently accorded post-enactment
authority to identify the projects they desire to be funded through various
Congressional Pork Barrel allocations. Under the 2013 PDAF Article, the statutory
authority of legislators to identify projects post-GAA may be construed from Special
Provisions 1 to 3 and the second paragraph of Special Provision 4. Legislators have
also been accorded post-enactment authority in the areas of fund release (Special
Provision 5 under the 2013 PDAF Article) and realignment (Special Provision 4,
paragraphs 1 and 2 under the 2013 PDAF Article).
Thus, legislators have been, in one form or another, authorized to participate in “the
various operational aspects of budgeting,” including “the evaluation of work and financial
plans for individual activities” and the “regulation and release of funds”, in violation of the
separation of powers principle [The Court cites its Decision on Guingona, Jr. v. Carague
(Guingona, Jr., 1991)]. From the moment the law becomes effective, any provision of law
that empowers Congress or any of its members to play any role in
the implementation or enforcement of the law violates the principle of separation of powers
and is thus unconstitutional [The Court cites its Decision on Abakada Guro Party List v.
Purisima (Abakada, 2008)]. That the said authority is treated as merely recommendatory
in nature does not alter its unconstitutional tenor since the prohibition covers any role in
the implementation or enforcement of the law. Towards this end, the Court must therefore
abandon its ruling in Philconsa. Besides, the Court points out that respondents have failed
to substantiate their position that the identification authority of legislators is only of
recommendatory import.
In addition to declaring the 2013 PDAF Article as well as all other provisions of law which
similarly allow legislators to wield any form of post-enactment authority in the
implementation or enforcement of the budget, the Court also declared that informal
practices, through which legislators have effectively intruded into the proper phases of
budget execution, must be deemed as acts of grave abuse of discretion amounting to lack
or excess of jurisdiction and, hence, accorded the same unconstitutional treatment.
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2. YES. The 2013 PDAF Article violates the principle of non-delegability since
legislators are effectively allowed to individually exercise the power of
appropriation, which, as settled in Philconsa, is lodged in Congress. The power to
appropriate must be exercised only through legislation, pursuant to Section 29(1),
Article VI of the 1987 Constitution which states: “No money shall be paid out of the
Treasury except in pursuance of an appropriation made by law.” The power of
appropriation, as held by the Court in Bengzon v. Secretary of Justice and Insular
Auditor (Bengzon, 1936), involves (a) the setting apart by law of a certain sum from
the public revenue for (b) a specified purpose. Under the 2013 PDAF Article,
individual legislators are given a personal lump-sum fund from which they are able
to dictate (a) how much from such fund would go to (b) a specific project or
beneficiary that they themselves also determine. Since these two acts comprise the
exercise of the power of appropriation as described in Bengzon, and given that the
2013 PDAF Article authorizes individual legislators to perform the same,
undoubtedly, said legislators have been conferred the power to legislate which the
Constitution does not, however, allow.
3. YES. Under the 2013 PDAF Article, the amount of P24.79 Billion only appears as a
collective allocation limit since the said amount would be further divided among
individual legislators who would then receive personal lump-sum allocations and
could, after the GAA is passed, effectively appropriate PDAF funds based on their
own discretion. As these intermediate appropriations are made by legislators only
after the GAA is passed and hence, outside of the law, it means that the actual items
of PDAF appropriation would not have been written into the General
Appropriations Bill and thus effectuated without veto consideration. This kind of
lump-sum/post-enactment legislative identification budgeting system fosters the
creation of a “budget within a budget” which subverts the prescribed procedure of
presentment and consequently impairs the President’s power of item veto. As
petitioners aptly point out, the President is forced to decide between (a) accepting
the entire P24. 79 Billion PDAF allocation without knowing the specific projects of
the legislators, which may or may not be consistent with his national agenda and
(b) rejecting the whole PDAF to the detriment of all other legislators with legitimate
projects.
Even without its post-enactment legislative identification feature, the 2013 PDAF Article
would remain constitutionally flawed since the lump-sum amount of P24.79 Billion would
be treated as a mere funding source allotted for multiple purposes of spending (i.e.
scholarships, medical missions, assistance to indigents, preservation of historical materials,
construction of roads, flood control, etc). This setup connotes that the appropriation law
leaves the actual amounts and purposes of the appropriation for further determination and,
therefore, does not readily indicate a discernible item which may be subject to the
President’s power of item veto.
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The same lump-sum budgeting scheme has, as the CoA Chairperson relays, “limit[ed] state
auditors from obtaining relevant data and information that would aid in more stringently
auditing the utilization of said Funds.” Accordingly, she recommends the
adoption of a “line by line budget or amount per proposed program, activity or project, and
per implementing agency.”
4. YES. To a certain extent, the conduct of oversight would be tainted as said
legislators, who are vested with post-enactment authority, would, in effect, be
checking on activities in which they themselves participate. Also, this very same
concept of post-enactment authorization runs afoul of Section 14, Article VI of the
1987 Constitution which provides that: “ [A Senator or Member of the House of
Representatives] shall not intervene in any matter before any office of the
Government for his pecuniary benefit or where he may be called upon to act on
account of his office.” Allowing legislators to intervene in the various phases of
project implementation renders them susceptible to taking undue advantage of
their own office.
However, the Court cannot completely agree that the same post-enactment authority
and/or the individual legislator’s control of his PDAF per se would allow him to perpetrate
himself in office. This is a matter which must be analyzed based on particular facts and on
a case-to-case basis.
Also, while the Court accounts for the possibility that the close operational proximity
between legislators and the Executive department, through the former’s post-enactment
participation, may affect the process of impeachment, this matter largely borders on the
domain of politics and does not strictly concern the Pork Barrel System’s intrinsic
constitutionality. As such, it is an improper subject of judicial assessment.
5. NO. Section 26, Article II of the 1987 Constitution is considered as not self-executing
due to the qualifying phrase “as may be defined by law.” In this respect, said
provision does not, by and of itself, provide a judicially enforceable constitutional
right but merely specifies a guideline for legislative or executive action. Therefore,
since there appears to be no standing law which crystallizes the policy on political
dynasties for enforcement, the Court must defer from ruling on this issue.
In any event, the Court finds the above-stated argument on this score to be largely
speculative since it has not been properly demonstrated how the Pork Barrel System would
be able to propagate political dynasties.
6. YES. The Court, however, finds an inherent defect in the system which actually
belies the avowed intention of “making equal the unequal” (Philconsa, 1994). The
gauge of PDAF and CDF allocation/division is based solely on the fact of office,
without taking into account the specific interests and peculiarities of the district the
legislator represents. As a result, a district representative of a highly-urbanized
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metropolis gets the same amount of funding as a district representative of a far-flung
rural province which would be relatively “underdeveloped” compared to the former.
To add, what rouses graver scrutiny is that even Senators and Party-List
Representatives – and in some years, even the Vice-President – who do not represent
any locality, receive funding from the Congressional Pork Barrel as well.
The Court also observes that this concept of legislator control underlying the CDF and
PDAF conflicts with the functions of the various Local Development Councils (LDCs)
which are already legally mandated to “assist the corresponding sanggunian in setting the
direction of economic and social development, and coordinating development efforts
within its territorial jurisdiction.” Considering that LDCs are instrumentalities whose
functions are essentially geared towards managing local affairs, their programs, policies
and resolutions should not be overridden nor duplicated by individual legislators, who are
national officers that have no law-making authority except only when acting as a body.
C. SUBSTANTIVE ISSUES ON PRESIDENTIAL PORK BARREL
1. YES. Regarding the Malampaya Fund: The phrase “and for such other purposes as
may be hereafter directed by the President” under Section 8 of PD 910 constitutes
an undue delegation of legislative power insofar as it does not lay down a sufficient
standard to adequately determine the limits of the President’s authority with respect
to the purpose for which the Malampaya Funds may be used. As it reads, the said
phrase gives the President wide latitude to use the Malampaya Funds for any other
purpose he may direct and, in effect, allows him to unilaterally appropriate public
funds beyond the purview of the law.
That the subject phrase may be confined only to “energy resource development and
exploitation programs and projects of the government” under the principle of ejusdem
generis, meaning that the general word or phrase is to be construed to include – or be
restricted to – things akin to, resembling, or of the same kind or class as those specifically
mentioned, is belied by three (3) reasons: first, the phrase “energy resource development
and exploitation programs and projects of the government” states a singular and general
class and hence, cannot be treated as a statutory reference of specific things from which
the general phrase “for such other purposes” may be limited; second, the said phrase also
exhausts the class it represents, namely energy development programs of the government;
and, third, the Executive department has used the Malampaya Funds for non-energy
related purposes under the subject phrase, thereby contradicting respondents’ own
position that it is limited only to “energy resource development and exploitation programs
and projects of the government.”
However, the rest of Section 8, insofar as it allows for the use of the Malampaya Funds “to
finance energy resource development and exploitation programs and projects of the
government,” remains legally effective and subsisting.
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As for the Presidential Social Fund: Section 12 of PD 1869, as amended by PD 1993, indicates
that the Presidential Social Fund may be used “to [first,] finance the priority infrastructure
development projects and [second,] to finance the restoration of damaged or destroyed
facilities due to calamities, as may be directed and authorized by the Office of the President
of the Philippines.”
The second indicated purpose adequately curtails the authority of the President to spend
the Presidential Social Fund only for restoration purposes which arise from calamities. The
first indicated purpose, however, gives him carte blanche authority to use the same fund
for any infrastructure project he may so determine as a “priority“. Verily, the law does not
supply a definition of “priority infrastructure development projects” and hence, leaves the
President without any guideline to construe the same. To note, the delimitation of a project
as one of “infrastructure” is too broad of a classification since the said term could pertain
to any kind of facility. Thus, the phrase “to finance the priority infrastructure development
projects” must be stricken down as unconstitutional since – similar to Section 8 of PD 910
- it lies independently unfettered by any sufficient standard of the delegating law. As they
are severable, all other provisions of Section 12 ofPD 1869, as amended by PD 1993, remains
legally effective and subsisting.
JAMES M. IMBONG, et al., vs. HON. PAQUITO N. OCHOA, JR. et al.,
G.R. No. 204819, G.R. No. 204934, G.R. No. 204957, G.R. No. 204988, G.R. No. 205003,
G.R. No. 205043, G.R. No. 205138, G.R. No. 205478, G.R. No. 205491, G.R. No. 205720,
G.R. No. 206355, G.R. No. 207111, G.R. No. 207172, G.R. No. 207563, April 8, 2014, J.
Mendoza
The Court does not have the unbridled authority to rule on just any and every claim of
constitutional violation. Jurisprudence is replete with the rule that the power of judicial review
is limited by four exacting requisites, viz : (a) there must be an actual case or controversy; (b)
the petitioners must possess locus standi; (c) the question of constitutionality must be raised
at the earliest opportunity; and (d) the issue of constitutionality must be the lis mota of the
case. Hence, there is deemed an actual case of controversy when petitioners have shown that
the case is so because medical practitioners or medical providers are in danger of being
criminally prosecuted under the RH Law for vague violations thereof, particularly public
health officers who are threatened to be dismissed from the service with forfeiture of
retirement and other benefits. For this reason, Court can exercise its power of judicial review
over the controversy.
Facts:
A perusal of the foregoing petitions shows that the petitioners are assailing the
constitutionality of RH Law on the the grounds that:
1. The RH Law violates the right to life of the unborn;
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2. The RH Law violates the right to health and the right to protection against
hazardous products.
3. The RH Law violates the right to religious freedom;
4. The RH Law violates the constitutional provision on involuntary servitude;
5. The RH Law violates the right to equal protection of the;
6. The RH Law is "void-for-vagueness" in violation of the due process clause of the
Constitution;
7. The RH Law violates the right to free;
8. The RH Law intrudes into the zone of privacy of one's family protected by the
Constitution;
9. The RH Law violates the constitutional principle of non-delegation of legislative
authority. The petitioners question the delegation by Congress to the FDA of the
power to determine whether a product is non-abortifacient and to be included in
the Emergency Drugs List (EDL);
10. The RH Law violates the one subject/one bill rule provision under Section 26( 1
), Article VI of the Constitution;
11. The RH Law violates Natural Law;
12. The RH Law violates the principle of Autonomy of Local Government Units
(LGUs) and the Autonomous Region of Muslim Mindanao {ARMM);
The respondents, aside from traversing the substantive arguments of the
petitioners, pray for the dismissal of the petitions for the principal reasons that 1] there is
no actual case or controversy and, therefore, the issues are not yet ripe for judicial
determination.; 2] some petitioners lack standing to question the RH Law; and 3] the
petitions are essentially petitions for declaratory relief over which the Court has no original
jurisdiction.
On March 19, 2013, after considering the issues and arguments raised, the Court
issued the Status Quo Ante Order (SQAO), enjoining the effects and implementation of
the assailed legislation for a period of one hundred and twenty (120) days, or until July 17,
2013. On July 9 and 23, 2013, and on August 6, 13, and 27, 2013, the cases were heard on oral
argument. On July 16, 2013, the SQAO was ordered extended until further orders of the
Court.
Issue:
Whether or not the Court can exercise its power of judicial review over the
controversy.
Ruling:
The Constitution impresses upon the Court to respect the acts performed by a coequal branch done within its sphere of competence and authority, but at the same time,
allows it to cross the line of separation - but only at a very limited and specific point - to
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determine whether the acts of the executive and the legislative branches are null because
they were undertaken with grave abuse of discretion. Thus, while the Court may not pass
upon questions of wisdom, justice or expediency of the RH Law, it may do so where an
attendant unconstitutionality or grave abuse of discretion results. The Court must
demonstrate its unflinching commitment to protect those cherished rights and principles
embodied in the Constitution.
Lest it be misunderstood, it bears emphasizing that the Court does not have the
unbridled authority to rule on just any and every claim of constitutional violation.
Jurisprudence is replete with the rule that the power of judicial review is limited by four
exacting requisites, viz : (a) there must be an actual case or controversy; (b) the petitioners
must possess locus standi; (c) the question of constitutionality must be raised at the earliest
opportunity; and (d) the issue of constitutionality must be the lis mota of the case.
In the case at bench, there is deemed an actual case of controversy. Corollary 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. For a case to be considered ripe for adjudication, it is a
prerequisite that something has then been accomplished or performed by either branch
before a court may come into the picture, and the petitioner must allege the existence of
an immediate or threatened injury to himself as a result of the challenged action. 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.
Here, the petitioners have shown that the case is so because medical practitioners
or medical providers are in danger of being criminally prosecuted under the RH Law for
vague violations thereof, particularly public health officers who are threatened to be
dismissed from the service with forfeiture of retirement and other benefits. They must, at
least, be heard on the matter NOW.
Furthermore, the petitioners have legal personality to file their respective petitions.
Locus standi or legal standing is defined as a personal and substantial interest in a case
such that the party has sustained or will sustain direct injury as a result of the challenged
governmental act. It can be relaxed when the public interest so requires, such as when the
matter is of transcendental importance, of overreaching significance to society, or of
paramount public interest.
In view of the seriousness, novelty and weight as precedents, not only to the public,
but also to the bench and bar, the issues raised must be resolved for the guidance of all.
After all, the RH Law drastically affects the constitutional provisions on the right to life and
health, the freedom of religion and expression and other constitutional rights. Mindful of
all these and the fact that the issues of contraception and reproductive health have already
caused deep division among a broad spectrum of society, the Court entertains no doubt
that the petitions raise issues of transcendental importance warranting immediate court
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adjudication. More importantly, considering that it is the right to life of the mother and
the unborn which is primarily at issue, the Court need not wait for a life to be taken away
before taking action.
The Court cannot, and should not, exercise judicial restraint at this time when rights
enshrined in the Constitution are being imperilled to be violated. To do so, when the life
of either the mother or her child is at stake, would lead to irreparable consequences.
MARIA CAROLINA P. ARAULLO, CHAIRPERSON, BAGONG ALYANSANG
MAKABAYAN, et al. vs. BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES, et al.
G.R. No. 209287 (Consolidated), July 01, 2014, J. Lucas P. Bersamin
Except for PHILCONSA, a petitioner in G.R. No. 209164, the petitioners have invoked
their capacities as taxpayers who, by averring that the issuance and implementation of the
DAP and its relevant issuances involved the illegal disbursements of public funds, have an
interest in preventing the further dissipation of public funds. The petitioners in G.R. No.
209287 (Araullo) and G.R. No. 29442 (Belgica) also assert their right as citizens to sue for the
enforcement and observance of the constitutional limitations on the political branches of the
Government.
On its part, PHILCONSA simply reminds that the Court has long recognized its legal
standing to bring cases upon constitutional issues. Luna, the petitioner in G.R. No. 209136,
cites his additional as a lawyer. The IBP, the petitioner in G.R. No. 209260, stands by “its
avowed duty to work for the rule of law and of paramount importance of the question in this
action, not to mention its civic duty as the official association of all lawyers in this country.”
Under their respective circumstances, each of the petitioners has established sufficient
interest in the outcome of the controversy as to confer locus standi on each of them.
Facts:
The controversy, in the present case, surfaced at the fore of public consciousness
when Sen. Jinggoy Estrada in his privilege speech revealed that some Senators, including
himself, had been allotted an additional PhP50 Million each as incentive for voting in favor
of the impeachment of Chief Justice Renato Corona. In response, DBM Secretary Florencio
Abad explained that the allocations were part of the Disbursement Acceleration Program
(DAP) devised to accelerate government spending. He further explained that the funds
under the DAP were sourced from (1) unreleased appropriations under Personnel Services;
(2) unprogrammed funds; (3) carry-over appropriations unreleased from the previous year;
and (4) budget for slow-moving items or projects that had been realigned to support fasterdisbursing projects.
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The DBM listed the following as the legal bases for the DAP’s use of savings, namely:
(1) Section 25(5), Article VI of the 1987 Constitution, which granted to the President the
authority to augment an item for his office in the general appropriations law; (2) Section
49 (Authority to Use Savings for Certain Purposes) and Section 38 (Suspension of
Expenditure Appropriations), Chapter 5, Book Vi of Executive Order (EO) No. 292
(Administrative Code of 1987); and (3) the General Appropriations Acts (GAAs) of 2011, 2012
and 2013, particularly their provisions on the (a) use of savings; (b) meanings of savings and
augmentation; and (c) priority in the use of savings. As for the use of unprogrammed funds
under the DAP, the DBM cited as legal bases the special provisions on unprogrammed fund
contained in the GAAs of 2011, 2012, and 2013.
Petitioners, representing various national, sectoral and public interest groups,
through petitions for certiorari, prohibition and mandamus, seek to have the Disbursement
Acceleration Program (DAP), National Budget Circular (NBC) No. 541 and related
issuances, being implemented by respondent officials, and the consequent and related acts
thereto declared ultra vires.
The respondents submit that there is no actual controversy that is ripe for
adjudication in the absence of adverse claims between the parties, that the petitioners
lacked legal standing to sue because no allegations were made to the effect that they had
suffered any injury as a result of the adoption of the DAP and issuance of NBC No. 541, that
their being taxpayers did not immediately confer upon the petitioners the legal standing to
sue considering that the adoption and implementation of the DAP and the issuance of NBC
No. 541 were not in the exercise of the taxing or spending power of Congress, and that even
if the petitioners had suffered injury, there were plain, speedy and adequate remedies in
the ordinary course of law available to them, like assailing the regularity of the DAP and
related issuances before the Commission on Audit (COA) or in the trial courts.
Issue:
Whether or not the respondents have legal standing to question the
constitutionality and validity of the assailed executive issuances and the related acts
thereto.
Ruling:
YES, the Court finds that the requirements of locus standi are present in this case.
The requisites for the exercise of the power of judicial review are the following,
namely: (1) there must been actual case or justiciable controversy before the Court; (2) the
question before the Court must be ripe for adjudication; (3) the person challenging the act
must be a proper party; and (4) the issue of constitutionality must be raised at the earliest
opportunity and must be the very litis mota of the case.
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Anent the third requisite, which is of paramount concern in this case, it is required
that the petitioner must have a personal stake in the outcome of the controversy. In fact,
as early as in 1937, People vs. Vera, the Court adopted the direct injury test for determining
whether a petitioner in a public action had locus standi. There, the Court held that the
person who would assail the validity of a statute must have “a personal and substantial
interest in the case such that he has sustained, or will sustain direct injuary as a result.
Yet, the Court has also held that the requirement of locus standi, being a mere
procedural technicality, can be waived by the Court in the exercise of its discretion. For
instance, in 1949, in Araneta vs. Dinglasan, the Court liberalized the approach when the
cases had “transcendental importance.” Some notable controversies whose petitioners did
not pass the direct injury test were allowed to be treated in the same way as in Araneta vs.
Dinglasan.
In the 1975 decision in Aquino vs. Commission on Elections, the Court decided to
resolve the issues raised by the petition due to their “far reaching implications,” even if the
petitioner had no personality to file the suit. The liberal approach of Aquino vs.
Commission on Elections has been adopted in several notable cases, permitting ordinary
citizens, legislators, and civic organizations to bring their suits involving the
constitutionality or validity of laws, regulations, and rulings.
Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to
gain locus standi. That is not surprising, for even if the issue may appear to concern only
the public in general, such capacities nonetheless equip the petitioner with adequate
interest to sue. In David vs. Macapagal-Arroyo, the Court aptly explains why:
Case law in most jurisdictions allows both “citizen” and “taxpayer” standing in public
actions. The distinction was first laid down in Beauchamp vs. Silk, where it was held that
the plaintiff is affected by the expenditure of public funds, while in the latter, he is but the
mere instrument of the public concern. As held by the New York Supreme Court in People
ex rel Case vs. Collins: ‘In the matter of mere public right, however… the people are the real
parties…It is at least the right, if not the duty, of every citizen to interfere and see that a
public offence be properly pursued and punished, and that a public grievance be remedied.’
With respect to taxpayer’s suits, Terr vs. Jordan held that ‘the right of a citizen and a
taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his
injury cannot be denied.’
The Court has cogently observed in Agan, Jr. vs. Philippine International Air
Terminals Co., Inc. that “[s]tanding 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.”
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Except for PHILCONSA, a petitioner in G.R. No. 209164, the petitioners have
invoked their capacities as taxpayers who, by averring that the issuance and
implementation of the DAP and its relevant issuances involved the illegal disbursements
of public funds, have an interest in preventing the further dissipation of public funds. The
petitioners in G.R. No. 209287 (Araullo) and G.R. No. 29442 (Belgica) also assert their right
as citizens to sue for the enforcement and observance of the constitutional limitations on
the political branches of the Government.
On its part, PHILCONSA simply reminds that the Court has long recognized its legal
standing to bring cases upon constitutional issues. Luna, the petitioner in G.R. No. 209136,
cites his additional as a lawyer. The IBP, the petitioner in G.R. No. 209260, stands by “its
avowed duty to work for the rule of law and of paramount importance of the question in
this action, not to mention its civic duty as the official association of all lawyers in this
country.
Under their respective circumstances, each of the petitioners has established
sufficient interest in the outcome of the controversy as to confer locus standi on each of
them.
KALIPUNAN NG DAMAYANG MAHIHIRAP, INC., et al., vs. JESSIE ROBREDO, in
his capacity as Secretary, Department of Interior and Local Government, et al.
G.R. No. 200903, July 22, 2014, J. Brion
It is a rule firmly entrenched in our jurisprudence that the courts will not determine
the constitutionality of a law unless the following requisites are present: (1) the existence of
an actual case or controversy involving a conflict of legal rights susceptible of judicial
determination; (2) the existence of personal and substantial interest on the part of the party
raising the constitutional question; (3) recourse to judicial review is made at the earliest
opportunity; and (4) the resolution of the constitutional question must be necessary to the
decision of the case. The Supreme Court has carefully read the petitions and we conclude
that they fail to compellingly show the necessity of examining the constitutionality of Section
28(a) and (b) of RA 7279 in the light of Sections 1 and 6, Article 3 of the 1987 Constitution.
Facts:
The members of petitioners Kalipunan ng Damayang Mahihirap, Inc. and Corazon
de Jesus Homeowners’ Association as well as the individual petitioners, Fernando Sevilla,
Estrelieta Bagasbas, Jocy Lopez, Elvira Vidol and Delia Frayres, were/are occupying parcels
of land owned by and located in the cities of San Juan, Navotas and Quezon (collectively,
the LGUs). These LGUs sent the petitioners notices of eviction and demolition pursuant
to Section 28(a) and (b) of RA 7279 in order to give way to the implementation and
construction of infrastructure projects in the areas illegally occupied by the petitioners.
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Section 28(a) and (b) of RA 7279 authorize evictions and demolitions without any
court order when: (1) persons or entities occupy danger areas such as esteros, railroad
tracks, garbage dumps, riverbanks, shorelines, waterways, and other public places such as
sidewalks, roads, parks, and playgrounds; and (2) persons or entities occupy areas where
government infrastructure projects with available funding are about to be implemented.
On March 23, 2012, the petitioners directly filed a petition for prohibition and
mandamus before the Court, seeking to compel the Secretary of Interior and Local
Government, et al. (the public respondents) to first secure an eviction and/or demolition
order from the court prior to their implementation of Section 28(a) and (b) of RA 7279.
The petitioners justify their direct recourse before this Court by generally averring that they
have no plain, speedy and adequate remedy in the ordinary course of law. They also posit
that the respondents gravely abused their discretion in implementing Section 28(a) and (b)
of RA 7279 which are patently unconstitutional. They likewise insist that they stand to be
directly injured by the respondents’ threats of evictions and demolitions. In the alternative,
they contend that the transcendental public importance of the issues raised in this case
clothes them with legal standing.
The petitioners argue that Section 28(a) and (b) of RA 7279 offend their
constitutional right to due process because they warrant evictions and demolitions without
any court order. They point out that Section 6, Article 3 of the 1987 Constitution expressly
prohibits the impairment of liberty of abode unless there is a court order. Moreover,
Section 28(a) and (b) of RA 7279 violate their right to adequate housing, a universal right
recognized in Article 25 of Universal Declaration of Human Rights and Section 2(a) of RA
7279. The petitioners further complain that the respondents had previously conducted
evictions and demolitions in a violent manner, contrary to Section 10, Article 13 of the 1987
Constitution.
The Secretary of Interior and Local Government and the National Housing
Authority (NHA) General Manager adopt the Mayor of Navotas’ position that the petition
is procedurally infirm. They further argue that the liberty of abode is not illimitable and
does not include the right to encroach upon other person properties. They also reiterate
that Section 28 of RA 7279 provides sufficient safeguards in ensuring that evictions and
demolitions are carried out in a just and humane manner.
Issue:
Whether Section 28(a) and (b) of RA 7279 are violative of Sections 1 and 6, Article 3
of the 1987 Constitution.
Ruling:
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The Supreme Court did not pass upon the constitutionality of Section 28(a) and (b)
of RA 7279 for failure to show the essential requisites that would warrant the Court’s
exercise of judicial review.
It is a rule firmly entrenched in our jurisprudence that the courts will not determine
the constitutionality of a law unless the following requisites are present: (1) the existence
of an actual case or controversy involving a conflict of legal rights susceptible of judicial
determination; (2) the existence of personal and substantial interest on the part of the party
raising the constitutional question; (3) recourse to judicial review is made at the earliest
opportunity; and (4) the resolution of the constitutional question must be necessary to the
decision of the case.
Save for the petition pertaining to the City of Quezon’s threat of eviction and
demolition, this case no longer presents a justiciable controversy with respect to the
Mayors of Navotas and San Juan. The Court takes note of the Comments of these Mayors
who alleged that they had already successfully evicted the concerned petitioners in their
respective cities at the time of the filing of the petition.
What further constrains this Court from touching on the issue of constitutionality
is the fact that this issue is not the lis mota of this case. Lis mota literally means “the cause
of the suit or action”; it is rooted in the principle of separation of powers and is thus merely
an offshoot of the presumption of validity accorded the executive and legislative acts of our
coequal branches of the government.
This means that the petitioner who claims the unconstitutionality of a law has the
burden of showing first that the case cannot be resolved unless the disposition of the
constitutional question that he raised is unavoidable. If there is some other ground upon
which the court may rest its judgment, that course will be adopted and the question of
constitutionality should be avoided. Thus, to justify the nullification of a law, there must
be a clear and unequivocal breach of the Constitution, and not one that is doubtful,
speculative or argumentative.
The Supreme Court has carefully read the petitions and it concludes that they fail to
compellingly show the necessity of examining the constitutionality of Section 28(a) and (b)
of RA 7279 in the light of Sections 1 and 6, Article 3 of the 1987 Constitution. In Magkalas
v. NHA, this Court had already ruled on the validity of evictions and demolitions without
any court order.
GOV. LUIS RAYMUND F. VILLAFUERTE, JR. AND THE PROVINCE OF CAMARINES
SUR vs. HON. JESSE M. ROBREDO IN HIS CAPACITY AS SECRETARY OF THE
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT
G.R. No. 195390, December 10, 2014, J. Bienvenido L. Reyes
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The existence of an actual controversy in the instant case cannot be overemphasized.
At the time of filing of the instant petition, Robredo had already implemented the assailed
MCs. In fact, Villafuerte received Audit Observation Memorandum (AOM) No. 2011-009
dated May 10, 2011 from the Office of the Provincial Auditor of Camarines Sur, requiring him
to comment on the observation of the audit team xxx.
The issuance of AOM No. 2011-009 to Villafuerte is a clear indication that the assailed
issuances of Robredo are already in the full course of implementation. The AOM specifically
mentioned of Villafuerte’s alleged non-compliance … and [t]he fact that Villafuerte is being
required to comment on the contents of thereof signifies that the process of investigation for
his alleged violation has already begun. Ultimately, the investigation is expected to end in a
resolution on whether a violation has indeed been committed, together with the appropriate
sanctions that come with it. Clearly, Villafuerte’s apprehension is real and well-founded as he
stands to be sanctioned for non-compliance with the issuances.
Facts:
Respondent Camarines Sur Governor Villafuerte, Jr. filed the instant petition for
certiorari and prohibition, seeking the nullification of issuances of the late DILG Sec.
Robredo on the ground of unconstitutionality and for having been issued with grave of
discretion amounting to lack or excess of jurisdiction, which are as follows:
a) Memorandum Circular (MC) No. 2010-83 dated August 31, 2010,
pertaining to the full disclosure of local budget and finances, and bids and
public offerings, and aiming to promote good governance through
enhanced transparency and accountability of LGUs;
b) MC No. 2010-138 dated December 2, 2010, pertaining to the use of the 20%
component of the annual IRA shares, which shall be utilized for desirable
social, economic and environmental outcomes; and
c) MC No. 2011-08 dated January 13, 2011, pertaining to the strict adherence
to Sec. 90 of R.A. No. 10147 or the GAA of 2011, on the publication or
posting of detailed information on the use and disbursement, and status
of programs and projects in the LGUs’ websites.
The above-enumerated issuances merely reiterated or reinforced earlier and similar
directives coming from the predecessors of Robredo, that which were the offshoot of a COA
report in 1995 indicating that some LGUs was not properly following and/or utilizing the
20% development fund allocation in their IRA shares.
Issue:
Whether or not the controversy at hand is ripe for judicial review.
Ruling:
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YES, there is actual controversy in this case warranting the exercise of the Court’s
power of judicial review.
At the outset, Robredo is questioning the propriety of the exercise of the Court’s
power of judicial review over the instant case. He argues that the petition is premature
since there is yet any actual controversy that is ripe for judicial determination … the lack of
allegation in the petition that the assailed issuances had been fully implemented and that
the petitioners had already exhausted administrative remedies under Sec. 25 of the Revised
Administrative Code.
It is well-settled that the Court’s exercise of the power of judicial review requires the
concurrence of the following elements: (1) there must be an actual case or controversy
calling for the exercise of judicial power; (2) the person challenging the act must have the
standing to question the validity of the subject act or issuance; otherwise stated, he must
have a personal and substantial interest in the case such that he has sustained, or will
sustain, direct injury as a result of its enforcement; (3) the question of constitutionality
must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the
very lis mota of the case.
Robredo claims that there is yet any actual case or controversy that calls for the
exercise of judicial review. He contends that the mere expectation of an administrative
sanction does not give rise to a justiciable controversy especially, in this case, that
Villafuerte, Jr. has yet to exhaust administrative remedies available.
The Court disagrees.
In La Bugal-B’laan Tribal Association, Inc. v. Ramos, the Court characterized an
actual case or controversy in this wise: “[a]n actual case or controversy means an existing
case or controversy that is appropriate or ripe for determination, not conjectural or
anticipatory, lest the decision of the court would amount to an advisory opinion. The power
does not extend to hypothetical questions since any attempt at abstraction could only lead
to dialectics and barren legal questions and to sterile conclusions unrelated to actualities.”
The existence of an actual controversy in the instant case cannot be
overemphasized. At the time of filing of the instant petition, Robredo had already
implemented the assailed MCs. In fact, Villafuerte received Audit Observation
Memorandum (AOM) No. 2011-009 dated May 10, 2011 from the Office of the Provincial
Auditor of Camarines Sur, requiring him to comment on the observation of the audit team,
which states:
The Province failed to post the transactions and documents required under
[DILG] [MC] No. 2010-83, thereby violating the mandate of full disclosure of
Local Budget and Finances, and Bids and Public Offering.
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xxxx
xxxx
The local officials concerned are reminded of the sanctions mentioned in the
circular which is quoted hereunder, thus: “Noncompliance with the
foregoing shall be dealt with in accordance with pertinent laws, rules and
regulations. In particular, attention is invited to the provision of [LGC] of
1991, quoted as follows:
Section 60. Grounds for Disciplinary Actions – An elective local official may
be discip-lined, suspended or removed from office on: (c) Dishonesty,
oppression, misconduct in office, gross negligence or dereliction of duty.”
The issuance of AOM No. 2011-009 to Villafuerte is a clear indication that the
assailed issuances of Robredo are already in the full course of implementation. The [AOM]
specifically mentioned of Villafuerte’s alleged non-compliance … and [t]he fact that
Villafuerte is being required to comment on the contents of [thereof] signifies that the
process of investigation for his alleged violation has already begun. Ultimately, the
investigation is expected to end in a resolution on whether a violation has indeed been
committed, together with the appropriate sanctions that come with it. Clearly, Villafuerte’s
apprehension is real and well-founded as he stands to be sanctioned for non-compliance
with the issuances.
There is likewise no merit in Robredo’s claim that the petitioners’ failure to exhaust
administrative remedies warrants the dismissal of the petition. It bears emphasizing that
the assailed issuances were issued pursuant to the rule-making or quasi-legislative power
of the DILG. This pertains to “the power to make rules and regulations which results in
delegated legislation that is within the confines of the granting statute.” Not to be confused
with the quasi-legislative or rule-making power of an administrative agency is its quasijudicial or administrative adjudicatory power. This is the power to hear and determine
questions of fact to which the legislative policy is to apply and to decide in accordance with
the standards laid down by the law itself in enforcing and administering the same law. In
challenging the validity of an administrative issuance carried out pursuant to the agency’s
rule-making power, the doctrine of exhaustion of administrative remedies does not stand
as a bar in promptly resorting to the filing of a case in court. This was made clear by the
Court in Smart Communications, Inc. (SMART) v. NTC, where it was ruled [that] “[i]n
questioning the validity or constitutionality of a rule or regulation issued by an
administrative agency, a party need not exhaust administrative remedies before going to
court. This principle applies only where the act of the administrative agency concerned was
performed pursuant to its quasi-judicial function, and not when the assailed act pertained to
its rule-making or quasi-legislative power.”
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IN THE MATTER OF: SAVE THE SUPREME COURT JUDICIAL INDEPENDENCE AND
FISCAL AUTONOMY MOVEMEN vs. ABOLITION OF JUDICIARY DEVELOPMENT
FUND (JDF) AND REDUCTION OF FISCAL AUTONOMY.
UDK-15143, January 21, 2015, J. Leonen
There can be no justiciable controversy involving the constitutionality of a proposed
bill. The Court can exercise its power of judicial review only after a law is enacted, not before.
Mijares wants the court to strike down the proposed bills abolishing the Judiciary
Development Fund. The court, however, must act only within its powers granted under the
Constitution. The court is not empowered to review proposed bills because a bill is not a law.
Facts:
This case involves the proposed bills abolishing the Judiciary Development Fund and
replacing it with the “Judiciary Support Fund.” Funds collected from the proposed Judiciary
Support Fund shall be remitted to the national treasury and Congress shall determine how
the funds will be used.
Petitioner Rolly Mijares (Mijares) prays for the issuance of a writ of mandamus in
order to compel this Court to exercise its judicial independence and fiscal autonomy against
the perceived hostility of Congress.
In the letter­petition, Mijares alleges that he is “a Filipino citizen, and a concerned
taxpayer. The complaint implied that certain acts of members of Congress and the President
after the promulgation of these cases show a threat to judicial independence.
Mijares argues that Congress “gravely abused its discretion with a blatant usurpation
of judicial independence and fiscal autonomy of the Supreme Court.
Mijares points out that Congress is exercising its power “in an arbitrary and despotic
manner by reason of passion or personal hostility by abolishing the ‘Judiciary Development
Fund’ (JDF) of the Supreme Court.”
Issue:
Whether or not petitioner Rolly Mijares has sufficiently shown grounds for this court
to grant the petition and issue a writ of mandamus.
Ruling:
No, he has not.
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The power of judicial review, like all powers granted by the Constitution, is subject to
certain limitations. Petitioner must comply with all the requisites for judicial review before
this court may take cognizance of the case. The requisites are
1. there must be an actual case or controversy calling for the exercise of judicial power;
2. the person challenging the act must have the standing to question the validity of the
subject act or issuance; otherwise stated, he must have a personal and substantial
interest in the case such that he has sustained, or will sustain, direct injury as a result
of its enforcement;
3. the question of constitutionality must be raised at the earliest opportunity; and
4. the issue of constitutionality must be the very lis mota of the case.
Mijares’ failure to comply with the first two requisites warrants the outright dismissal
of this petition.
One of the requirements for this Court to exercise its power of judicial review is the
existence of an actual controversy. This means that there must be “an existing case or
controversy that is appropriate or ripe for determination, not conjectural or anticipatory, lest
the decision of the court would amount to an advisory opinion.”
Mijares’ allegations show that he wants this Court to strike down the proposed bills
abolishing the Judiciary Development Fund. This court, however, must act only within its
powers granted under the Constitution. This court is not empowered to review proposed
bills because a bill is not a law.
In Montesclaros v. COMELEC, the Court ruled:
Mijares’ prayer to prevent Congress from enacting into law a proposed bill
lowering the membership age in the SK does not present an actual justiciable
controversy. A proposed bill is not subject to judicial review because it is not a
law. A proposed bill creates no right and imposes no duty legally enforceable by
the Court. A proposed bill, having no legal effect, violates no constitutional right
or duty. The Court has no power to declare a proposed bill constitutional or
unconstitutional because that would be in the nature of rendering an advisory
opinion on a proposed act of Congress. The power of judicial review cannot be
exercised in vacuum.
Thus, there can be no justiciable controversy involving the constitutionality of a
proposed bill. The Court can exercise its power of judicial review only after a law is enacted,
not before.
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Even assuming that there is an actual case or controversy that this court must resolve,
Mijares has no legal standing to question the validity of the proposed bill. The rule on legal
standing has been discussed in David v. Macapagal-Arroyo:
Locus standi is defined as “a right of appearance in a court of justice on a
given question. The difficulty of determining locus standi arises in public suits.
Here, the plaintiff who asserts a “public right” in assailing an allegedly illegal
official action, does so as a representative of the general public. He has to
adequately show that he is entitled to seek judicial protection. In other words, he
has to make out a sufficient interest in the vindication of the public order and the
securing of relief as a “citizen” or “taxpayer.”
This Court adopted the “direct injury” test in our jurisdiction. In People v. Vera, it held
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.
Mijares has not shown that he has sustained or will sustain a direct injury if the
proposed bill is passed into law. While his concern for judicial independence is laudable, it
does not, by itself, clothe him with the requisite standing to question the constitutionality
of a proposed bill that may only affect the judiciary.
This Court, however, has occasionally relaxed the rules on standing when the issues
involved are of “transcendental importance” to the public. Specifically, this Court has stated
that:
the rule on standing is a matter of procedure, hence, can be relaxed for
nontraditional plaintiffs like ordinary citizens, taxpayers, and legislators when
the public interest so requires, such as when the matter is of transcendental
importance, of overreaching significance to society, or of paramount public
interest.
Transcendental importance is not defined in the Court’s jurisprudence, thus, in
Francisco v. House of Representatives:
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.
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Whether an issue is of transcendental importance is a matter determined by this
court on a case­to­case basis. An allegation of transcendental importance must be supported
by the proper allegations.
None of the determinants in Francisco are present in this case. The events feared by
Mijares are merely speculative and conjectural.
The events feared by Mijares are contingent on the passing of the proposed bill in
Congress. The threat of imminent injury is not yet manifest since there is no guarantee that
the bill will even be passed into law. There is no transcendental interest in this case to justify
the relaxation of technical rules.
With regard to the issuance of the writ of mandamus, the requisites in this case has
not been shown.
The writ of mandamus will issue when the act sought to be performed is ministerial.
An act is ministerial when it does not require the exercise of judgment and the act is
performed in compliance with a legal mandate. In a petition for mandamus, the burden of
proof is on petitioner to show that one is entitled to the performance of a legal right and that
respondent has a corresponding duty to perform the act. Mandamus will not lie “to compel
an official to do anything which is not his duty to do or which it is his duty not to do, or to
give to the applicant anything to which he is not entitled by law.
In this case, Mijares has not shown how he is entitled to the relief prayed for. Hence,
this court cannot be compelled to exercise its power of judicial review since there is no actual
case or controversy.
Operative Fact Doctrine
MARIA CAROLINA P. ARAULLO, CHAIRPERSON, BAGONG ALYANSANG
MAKABAYAN, et al. vs. BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES, et al...
G.R. No. 209287 (Consolidated), July 01, 2014, J. Bersamin
The doctrine of operative fact recognizes the existence of the law or executive act prior
to the determination of its unconstitutionality as an operative fact that produced
consequences that cannot always be erased, ignored or disregarded. In short, it nullifies the
void law or executive act but sustains its effects. It provides an exception to the general rule
that a void or unconstitutional law produces no effect. But its use must be subjected to great
scrutiny and circumspection, and it cannot be invoked to validate an unconstitutional law or
executive act, but is resorted to only as a matter of equity and fair play. It applies only to
cases where extra-ordinary circumstances exist, and only when the extraordinary
circumstances have met the stringent conditions that will permit its application.
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The Court finds the doctrine of operative fact applicable to the adoption and
implementation of the DAP. Its application to the DAP proceeds from equity and fair play.
The consequences resulting from the DAP and its related issuances could not be ignored or
could no longer be undone.
Facts:
The controversy, in the present case, surfaced at the fore of public consciousness
when Sen. Jinggoy Estrada in his privilege speech revealed that some Senators, including
himself, had been allotted an additional PhP50 Million each as incentive for voting in favor
of the impeachment of Chief Justice Renato Corona. In response, DBM Secretary Florencio
Abad explained that the allocations were part of the Disbursement Acceleration Program
(DAP) devised to accelerate government spending. He further explained that the funds
under the DAP were sourced from (1) unreleased appropriations under Personnel Services;
(2) unprogrammed funds; (3) carry-over appropriations unreleased from the previous year;
and (4) budget for slow-moving items or projects that had been realigned to support fasterdisbursing projects.
The DBM listed the following as the legal bases for the DAP’s use of savings, namely:
(1) Section 25(5), Article VI of the 1987 Constitution, which granted to the President the
authority to augment an item for his office in the general appropriations law; (2) Section
49 (Authority to Use Savings for Certain Purposes) and Section 38 (Suspension of
Expenditure Appropriations), Chapter 5, Book Vi of Executive Order (EO) No. 292
(Administrative Code of 1987); and (3) the General Appropriations Acts (GAAs) of 2011, 2012
and 2013, particularly their provisions on the (a) use of savings; (b) meanings of savings and
augmentation; and (c) priority in the use of savings. As for the use of unprogrammed funds
under the DAP, the DBM cited as legal bases the special provisions on unprogrammed fund
contained in the GAAs of 2011, 2012, and 2013.
Petitioners, representing various national, sectoral and public interest groups,
through petitions for certiorari, prohibition and mandamus, seek to have the Disbursement
Acceleration Program (DAP), National Budget Circular (NBC) No. 541 and related
issuances, being implemented by respondent officials, and the consequent and related acts
thereto declared ultra vires.
Issue:
Whether or not the Court, having so ruled that DAP and its implementing issuances
are constitutionally infirm and in view of the operative fact doctrine, should order the
undoing of previous or cessation of present obligated acts related to DAP.
Ruling:
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NO, those PAPs that can no longer be undone, and whose beneficiaries relied in
good faith on the validity of the DAP, should be left as such; however, the operative fact
doctrine cannot apply to authors, proponents and implementors of the DAP, unless there
are concrete findings of good faith in their favor by the proper tribunals determining their
liabilities.
The doctrine of operative fact recognizes the existence of the law or executive act
prior to the determination of its unconstitutionality as an operative fact that produced
consequences that cannot always be erased, ignored or disregarded. In short, it nullifies the
void law or executive act but sustains its effects. It provides an exception to the general rule
that a void or unconstitutional law produces no effect. But its use must be subjected to
great scrutiny and circumspection, and it cannot be invoked to validate an unconstitutional
law or executive act, but is resorted to only as a matter of equity and fair play. It applies
only to cases where extraordinary circumstances exist, and only when the extraordinary
circumstances have met the stringent conditions that will permit its application.
The Court finds the doctrine of operative fact applicable to the adoption and
implementation of the DAP. Its application to the DAP proceeds from equity and fair play.
The consequences resulting from the DAP and its related issuances could not be ignored
or could no longer be undone.
To be clear, the doctrine of operative fact extends to a void or unconstitutional
executive act. The term executive act is broad enough to include any and all acts of
Executive, including those that are quasi-legislative and quasi-judicial in nature. The Court
held so in Hacienda Luisita, Inc. vs. Presidential Agrarian Reform Council:
“Nonetheless, the minority is of the persistent view that the
applicability of the operative fact doctrine should be limited to statues and
rules and regulations issued by the executive department that are accorded
the same status as that of a statute and those which are quasi-legislative in
nature. Thus, the minority concludes that the phrase ‘executive act’ used in
the case of De Agbayani vs. PNB refers only to acts, orders, and rules and
regulations that have the force and effect of law. The minority also made
mention of the Concurring Opinion of Justice Enrique Fernando in
Municipality of Malabang vs. Benito, where it was supposedly made explicit
that the operative fact doctrine applies to executive acts, which are ultimately
quasi-legislative in nature.
The Court disagrees. For one, neither the De Agbayani case nor the
Municipality of Malabang case elaborates what ‘executive act’ mean.
Moreover, while orders, rules and regulations issued by the President or the
executive branch have fixed definitions and meaning in the Administrative
Code and jurisprudence, the phrase ‘executive act’ does not have such
specific definition under existing laws. It should be noted that in the cases
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cited by the minority, nowhere can it be found that the term ‘executive act’
is confined to the foregoing. Contrarily, the term ‘executive act’ is broad
enough to encompass decisions of administrative bodies and agencies under
the executive department which are subsequently revoked by the agency in
question or nullified by the Court.
In Tan vs. Barrios, the Court, in applying the operative fact doctrine,
held that despite the invalidity of the jurisdiction of the military courts over
civilians, certain operative facts must be acknowledged to have existed so as
not to trample upon the rights of the accused therein.
Evidently, the operative fact doctrine is not confined to statues and
rules and regulations issued by the executive department that are accorded
the same status as that of a statute or those which are quasi-legislative in
nature.
It is clear from the foregoing that the adoption and the implementation of the DAP
and its related issuances were executive acts. The DAP itself as a policy transcended a
merely administrative act practice especially after the Executive, through the DBM,
implemented it by issuing various memoranda and circulars. The pooling of savings
pursuant to the DAP from the allotments made available to the different agencies and
departments was consistently applied throughout the entire Executive. With the Executive,
through the DBM, being in charge of the third phase of the budget cycle – the budget
execution phase, the President could legitimately adopt a policy like the DAP by virtue of
his primary responsibility as the Chief Executive of directing the national economy towards
growth and development. This is simply because savings could and should be determined
only during the budget execution phase.
To declare the implementation of the DAP unconstitutional without recognizing
that its prior implementation constituted an operative fact that produced consequences in
the real as well as juristic worlds of the Government and the Nation is to be impractical and
unfair. Unless the doctrine is held to apply, the Executive as the disburser and the offices
under it and elsewhere as the recipients could be required to undo everything that they
had implemented in good faith under the DAP. That scenario would be enormously
burdensome for the Government. Equity alleviates such burden.
The other side of the coin is that it has been adequately shown as to be beyond
debate that the implementation of the DAP yielded undeniably positive results that
enhanced the economic welfare of the country. To count the positive results may be
impossible, but the visible ones, like public infrastructure, could easily include roads,
bridges, homes for the homeless, hospitals, classrooms and the like. Not to apply the
doctrine of operative fact to the DAP could literally cause the physical undoing of such
worthy results by destruction, and would result in most undesirable wastefulness.
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Nonetheless, as Justice Brion has pointed out during the deliberations, the doctrine
of operative fact does not always apply, and is not always the consequence of every
declaration of constitutional invalidity. It can be invoked only in situations where the
nullification of the effects of what used to be a valid law would result in inequity and
injustice; but where no such result would ensue, the general rule that an unconstitutional
law is totally ineffective should apply.
In that context, as Justice Brion has clarified, the doctrine of operative fact can apply
only to the PAPs that can no longer be undone, and whose beneficiaries relied in good faith
on the validity of the DAP, but cannot apply to the authors, proponents and implementors
of the DAP, unless there are concrete findings of good faith in their favor by the proper
tribunals determining their criminal, civil, administrative and other liabilities
Moot Questions
INTERNATIONAL SERVICE FOR THE ACQUISITION OF AGRI-BIOTECH
APPLICATIONS, INC., vs. GREENPEACE SOUTHEAST ASIA (PHILIPPINES),
MAGSASAKA AT SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA
(MASIPAG), REP. TEODORO CASINO, et al.
G.R. No. 209430. G.R. No. 209301. G.R. No. 209276. G.R. No. 209271, July 26, 2016
Facts:
The instant case arose from the conduct of field trials for "bioengineered eggplants," known
as Bacillus thuringiensis (Bt) eggplant (Bt talong), administered pursuant to the
Memorandum of Undertaking5 (MOU) entered into by herein petitioners University of the
Philippines Los Baños Foundation, Inc. (UPLBFI) and International Service for the
Acquisition of Agri-Biotech Applications, Inc. (ISAAA), and the University of the
Philippines Mindanao Foundation, Inc. (UPMFI), among others. Bt talong contains the
crystal toxin genes from the soil bacterium Bt, which produces the CrylAc protein that is
toxic to target insect pests. The Cry1Ac protein is said to be highly specific to lepidopteran
larvae such as the fruit and shoot borer, the most destructive insect pest to eggplants.6
From 2007 to 2009, petitioner University of the Philippines Los Banos (UPLB), the
implementing institution of the field trials, conducted a contained experiment on Bt talong
under the supervision of the National Committee on Biosafety of the Philippines (NCBP).7
The NCBP, created under Executive Order No. (EO) 430,8 is the regulatory body tasked to:
(a) "identify and evaluate potential hazards involved in initiating genetic engineering
experiments or the introduction of new species and genetically engineered organisms and
recommend measures to minimize risks"; and (b) ''formulate and review national policies
and guidelines on biosafety, such as the safe conduct of work on genetic engineering, pests
and their genetic materials for the protection of public health, environment[,] and
personnel[,] and supervise the implementation thereof."9 Upon the completion of the
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contained experiment, the NCBP issued a Certificate10 therefor stating that all biosafety
measures were complied with, and no untoward incident had occurred.11
On March 16, 2010 and June 28, 2010, the Bureau of Plant Industries (BPI) issued two (2)year Biosafety Permits12 for field testing of Bt talong13after UPLB's field test proposal
satisfactorily completed biosafety risk assessment for field testing pursuant to the
Department of Agriculture's (DA) Administrative Order No. 8, series of 200214 (DAO 082002),15 which provides for the rules and regulations for the importation and release into
the environment of plants and plant products derived from the use of modern
biotechnology.16 Consequently, field testing proceeded in approved trial sites in North
Cotabato, Pangasinan, Camarines Sur, Davao City, and Laguna.
On April 26, 2012, respondents Greenpeace Southeast Asia (Philippines) (Greenpeace),
Magsasaka at Siyentipiko sa Pagpapaunlad ng Agrikultura (MASIPAG), and others
(respondents) filed before the Court a Petition for Writ of Continuing Mandamus and Writ
of Kalikasan with Prayer for the Issuance of a Temporary Environmental Protection Order
(TEPO)18 (petition for Writ of Kalikasan) against herein petitioners the Environmental
Management Bureau (EMB) of the Department of Environment and Natural Resources
(DENR), the BPI and the Fertilizer and Pesticide Authority (FPA) of the DA, UPLBFI, and
ISAAA, and UPMFI, alleging that the Bt talong field trials violated their constitutional right
to health and a balanced ecology considering, among others, that: (a) the Environmental
Compliance Certificate (ECC), as required by Presidential Decree No. (PD) 1151,19 was not
secured prior to the field trials;20 (b) the required public consultations under the Local
Government Code (LGC) were not complied with;21 and (c) as a regulated article under
DAO 08-2002, Bt talong is presumed harmful to human health and the environment, and
that there is no independent, peer-reviewed study showing its safety for human
consumption and the environment.22 Further, they contended that since the scientific
evidence as to the safety of Bt talong remained insufficient or uncertain, and that
preliminary scientific evaluation shows reasonable grounds for concern, the precautionary
principle should be applied and, thereby, the field trials be enjoined.23
On May 2, 2012, the Court issued24 a Writ of Kalikasan against petitioners (except UPLB25)
and UPMFI, ordering them to make a verified return within a non-extendible period of ten
(10) days, as provided for in Section 8, Rule 7 of the Rules of Procedure for Environmental
Cases.26 Thus, in compliance therewith, ISAAA, EMB/BPI/FPA, UPLBFI, and UPMFI27
filed their respective verified returns,28 and therein maintained that: (a) all environmental
laws were complied with, including the required public consultations in the affected
communities; (b) an ECC was not required for the field trials as it will not significantly
affect the environment nor pose a hazard to human health; (c) there is a plethora of
scientific works and literature, peer-reviewed, on the safety of Bt talong for human
consumption; (d) at any rate, the safety of Bt talong for human consumption is irrelevant
because none of the eggplants will be consumed by humans or animals and all materials
not used for analyses will be chopped, boiled, and buried following the conditions of the
Biosafety Permits; and (e) the precautionary principle could not be applied as the field
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testing was only a part of a continuing study to ensure that such trials have no significant
and negative impact on the environment.29
On July 10, 2012, the Court issued a Resolution30 referring the case to the Court of Appeals
for acceptance of the return of the writ and for hearing, reception of evidence, and
rendition of judgment.31 In a hearing before the CA on August 14, 2012, UPLB was
impleaded as a party to the case and was furnished by respondents a copy of their petition.
Consequently the CA directed UPLB to file its comment to the petition32 and, on August
24, 2012, UPLB filed its Answer33 adopting the arguments and allegations in the verified
return filed by UPLBFI. On the other hand, in a Resolution34 dated February 13, 2013, the
CA discharged UPMFI as a party to the case pursuant to the Manifestation and Motion filed
by respondents in order to expedite the proceedings and resolution of the latter's petition.
Issues:
(a) Whether the case should have been dismissed for mootness in view of the completion
and termination of the Bt talong field trials and the expiration of the Biosafety
Permits;55 (b) Whether the Court should not have ruled on the validity of DAO 08-2002 as
it was not raised as an issue;56 and (c) Whether the Court erred in relying on the studies
cited in the December 8, 2015 Decision which were not offered in evidence and involved Bt
corn, not Bt talong.
Ruling:
The Court grants the motions for reconsideration on the ground of mootness.
As a rule, the Court may only adjudicate actual, ongoing controversies.62 The requirement
of the existence of a "case" or an "actual controversy" for the proper exercise of the power
of judicial review proceeds from Section 1, Article VIII of the 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 comis 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)
Accordingly, the Court is not empowered to decide moot questions or abstract
propositions, or to declare principles or rules of law which cannot affect the result as to the
thing in issue in the case before it. In other words, when a case is moot, it becomes nonjusticiable.63
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An action is considered "moot" when it no longer presents a justiciable controversy because
the issues involved have become academic or dead or when the matter in dispute has
already been resolved and hence, one is not entitled to judicial intervention unless the issue
is likely to be raised again between the parties. There is nothing for the court to resolve as
the determination thereof has been overtaken by subsequent events.64
Nevertheless, case law states that the Court will decide cases, otherwise moot, if: first, there
is a grave violation of the Constitution; second, the exceptional character of the situation
and the paramount public interest are involved; third, when the constitutional issue raised
requires formulation of controlling principles to guide the bench, the bar, and the public;
and fourth, the case is capable of repetition yet evading review.65 Thus, jurisprudence
recognizes these four instances as exceptions to the mootness principle.
In the December 8, 2015 Decision of the Court, it was held that (a) the present case is of
exceptional character and paramount public interest is involved, and (b) it is likewise
capable of repetition yet evading review. Hence, it was excepted from the mootness
principle.66 However, upon a closer scrutiny of the parties' arguments, the Court
reconsiders its ruling and now finds merit in petitioners' assertion that the case should have
been dismissed for being moot and academic, and that the aforesaid exceptions to the said
rule should not have been applied.
I. On the paramount public interest exception.
Jurisprudence in this jurisdiction has set no hard-and-fast rule in determining whether a
case involves paramount public interest in relation to the mootness principle. However, a
survey of cases would show that, as a common guidepost for application, there should be
some perceivable benefit to the public which demands the Court to proceed with the
resolution of otherwise moot questions.
In Gonzales v. Commission on Elections,67an action for declaratory judgment assailing the
validity of Republic Act No. (RA) 4880,68 which prohibits the early nomination of
candidates for elective offices and early election campaigns or partisan political activities
became moot by reason of the holding of the 1967 elections before the case could be
decided. Nonetheless, the Court treated the petition as one for prohibition and rendered
judgment in view of "the paramount public interest and the undeniable necessity for a
ruling, the national elections [of 1969] being barely six months away."69
In De Castro v. Commission on Elections,70 the Court proceeded to resolve the election
protest subject of that case notwithstanding the supervening death of one of the
contestants. According to the Court, in an election contest, there is a paramount need to
dispel the uncertainty that beclouds the real choice of the electorate.71
In David v. Macapagal-Arroyo,72the Court ruled on the constitutionality of Presidential
Proclamation No. 1017, s. 2006,73 which declared a state of National Emergency, even
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though the same was lifted before a decision could be rendered. The Court explained that
the case was one of exceptional character and involved paramount public interest, because
the people's basic rights to expression, assembly, and of the press were at issue.74
In Constantino v. S'andiganbayan,75 both of the accused were found guilty of graft and
corrupt practices under Section 3 (e) of RA 3019.76 One of the accused appealed the
conviction, while the other filed a petition for certiorari before the Court. While the
appellant died during the pendency of his appeal, the Court still ruled on the merits thereof
considering the exceptional character of the appeals in relation to each other, i.e., the two
petitions were so intertwined that the absolution of the deceased was determinative of the
absolution of the other accused.77
More recently, in Funa v. Manila Economic and Cultural Office (MECO),78the petitioner
prayed that the Commission on Audit (COA) be ordered to audit the MECO which is based
in Taiwan, on the premise that it is a government-owned and controlled corporation.79 The
COA argued that the case is already moot and should be dismissed, since it had already
directed a team of auditors to proceed to Taiwan to audit the accounts of MECO. 80 Ruling
on the merits, the Court explained that the case was of paramount public interest because
it involved the COA's performance of its constitutional duty and because the case concerns
the legal status of MECO, i.e., whether it may be considered as a government agency or not,
which has a direct bearing on the country's commitment to the One China Policy of the
People's Republic of China.81
In contrast to the foregoing cases, no perceivable benefit to the public - whether rational
or practical - may be gained by resolving respondents' petition for Writ of Kalikasan on the
merits.
To recount, these cases, which stemmed from herein respondents petition for Writ
of Kalikasan, were mooted by the undisputed expiration of the Biosafety Permits issued by
the BPI and the completion and termination of the Bt talong field trials subject of the
same.82 These incidents effectively negated the necessity for the reliefs sought by
respondents in their petition for Writ of Kalikasan as there was no longer any field test to
enjoin. Hence, at the time the CA rendered its Decision dated May 17, 2013, the reliefs
petitioner sought and granted by the CA were no longer capable of execution.
At this juncture, it is important to understand that the completion and termination of the
field tests do not mean that herein petitioners may inevitably proceed to commercially
propagate Bt talong.83 There are three (3) stages before genetically-modified organisms
(GMOs) may become commercially available under DAO 08-200284 and each stage is
distinct, such that "[s]ubsequent stages can only proceed if the prior stage/s [is/]are
completed and clearance is given to engage in the next regulatory stage."85 Specifically,
before a genetically modified organism is allowed to be propagated under DAO 082002: (a) a permit for propagation must be secured from the BPI; (b) it can be shown that
based on the field testing conducted in the Philippines, the regulated article will not pose
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any significant risks to the environment; (c) food and/or feed safety studies show that the
regulated article will not pose any significant risks to human and animal health; and (d) if
the regulated article is a pest-protected plant, its transformation event has been duly
registered with the FPA.86
As the matter never went beyond the field testing phase, none of the foregoing tasks related
to propagation were pursued or the requirements therefor complied with. Thus, there are
no guaranteed after-effects to the already concluded Bt talong field trials that demand an
adjudication from which the public may perceivably benefit. Any future threat to the right
,of herein respondents or the public in general to a healthful and balanced ecology is
therefore more imagined than real.
In fact, it would appear to be more beneficial to the public to stay a verdict on the safeness
of Bt talong - or GMOs, for that matter - until an actual and justiciable case properly
presents itself before the Court. In his Concurring Opinion87 on the main, Associate Justice
Marvic M.V.F. Leonen (Justice Leonen) had aptly pointed out that "the findings [resulting
from the Bt talong field trials] should be the material to provide more rigorous scientific
analysis of the various claims made in relation to Bt talong."88 True enough, the concluded
field tests ·- like those in these cases – would yield data that may prove useful for future
studies and analyses. If at all, resolving the petition for Writ of Kalikasan would
unnecessarily arrest the results of further research and testing on Et talong, and even
GMOs in general, and hence, tend to hinder scientific advancement on the subject matter.
More significantly, it is clear that no benefit would be derived by the public in assessing the
merits of field trials whose parameters are not only unique to the specific type of Bt
talong tested, but are now, in fact, rendered obsolete by the supervening change in the
regulatory framework applied to GMO field testing. To be sure, DAO 08-2002 has already
been superseded by Joint Department Circular No. 1, series of 201689 (JDC 01-2016), issued
by the Department of Science and Technology (DOST), the DA, the DENR, the Department
of Health (DOH), and the Department of Interior and Local Government (DILG), which
provides a substantially different regulatory framework from that under DAO 08-2002 as
will be detailed below. Thus, to resolve respondents' petition for Writ of Kalikasan on its
merits, would be tantamount to an unnecessary scholarly exercise for the Court to assess
alleged violations of health and environmental rights that arose from a past test case whose
bearings do not find any - if not minimal -- relevance to cases operating under today's
regulatory framework.
Therefore, the paramount public interest exception to the mootness rule should not have
been applied.1âwphi1
II. The case is not one capable of repetition vet evading review.
Likewise, contrary to the Court's earlier ruling,90 these cases do not fall under the "capable
of repetition yet evading review" exception.
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The Court notes that the petition for Writ of Kalikasan specifically raised issues only
against the field testing of Bt talong under the premises 'of DAO 08,..2002,91 i.e., that herein
petitioners failed to: (a) fully inform the eople regarding the health, environment, and other
hazards involved;92 and (b) conduct any valid risk assessment before conducting the field
trial.93 As further pointed out by Justice Leonen, the reliefs sought did not extend far
enough to enjoin the use of the results of the field trials that have been completed. Hence,
the petition's specificity prevented it from falling under the above exception to the
mootness rule.94
More obviously, the supersession of DAO 08-2002 by JDC 01-2016 clearly prevents this case
from being one capable of repetition so as to warrant review despite its mootness. To
contextualize, JDC 01-2016 states that:
Section 1. Applicability. This Joint Department Circular shall apply to the research,
development, handling and use, transboundary movement, release into the environment,
and management of genetically-modified plant and plant products derived from the use of
modern technology, included under "regulated articles."
As earlier adverted to, with the issuance of JDC 01-2016, a new regulatory framework in the
conduct of field testing now applies.
Notably, the new framework under JDC 01-2016 is substantially different from that under
DAO 08-2002. In fact, the new parameters in JDC 01-2016 pertain to provisions which
prompted the Court to invalidate D'AO 08-2002. In the December 8, 2015 Decision of the
Court, it was observed that: (a) DAO 08-2002 has no mechanism to mandate compliance
with inten1ational biosafety protocols;95 (b) DAO 08-2002 does not comply with the
transparency and public participation requirements under the NBF;96 and (c) risk
assessment is conducted by an informal group, called the Biosafety Advisory Team of the
DA, composed of representatives from the BPI, Bureau of Animal Industry, FPA, DENR,
DOH, and DOST.97
Under DAO 08-2002, no specific guidelines were used in the conduct of risk assessment,
and the DA was allowed to consider the expert advice of, and guidelines developed by,
relevant inteniational organizations and regulatory authorities of countries with significant
experience in the regulatory supervision of the regulated article.98 However, under JDC 012016, the CODEX Alimentarius Guidelines was adopted to govern the risk assessment of
activities involving the research, development, handling and use, transboundary
movement, release into the environment, and management of genetically modified plant
and plant products derived from the use of modem biotechnology.99Also, whereas DAO
08-2002 was limited to the DA's authority in regulating the importation and release into
the environment of plants and plant products derived from the use of modern
biotechnology,100 under JDC 01-2016, various relevant government agencies such as the
DOST, DOH, DENR, and the DILG now participate in all stages of the biosafety decisionmaking process, with the DOST being the central and lead agency.101
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JDC 01-2016 also provides for a more comprehensive avenue for public participation in cases
involving field trials and requires applications for permits and permits already issued to be
made public by posting them online in the websites of the NCBP and the BPI.102 The
composition of the Institutional Biosafety Committee (IBC) has also been modified to
include an elected local official in the locality where the field testing will be conducted as
one of the community representatives.103 Previously, under DAO 08-2002, the only
requirement for the community representatives is that they shall not be affiliated with the
applicant and shall be in a position to represent the interests of the communities where the
field testing is to be conducted.104
JDC 01-2016 also prescribes additional qualifications for the members of the Scientific and
Technical Review Panel (STRP), the pool of scientists that evaluates the risk assessment
submitted by the applicant for field trial, commercial propagation, or direct use of
regulated articles. Aside from not being an official, staff or employee of the DA or any of its
attached agencies, JDC 01-2016 requires that members of the STRP: (a) must not be directly
or indirectly employed or engaged by a company or institution with pending applications
for pennits under JDC 01-2016; (b) must possess technical expertise in food and nutrition,
toxicology, ecology, crop protection, environmental science, molecular biology and
biotechnology, genetics, plant breeding, or animal nutrition; and (c) must be wellrespected in the scientific community.
CIVIL SERVICE COMMISSION, Petitioner, v. CAROLINA P. JUEN, Respondent.
G.R. No. 200577, August 17, 2016
Facts:
Based on a letter-complaint,6 the respondent was investigated by the GSCRO V for
allegedly having paid another person take the Civil Service Professional Examination
(CSPE) given on December 20, 1996 on her behalf. The respondent denied the allegation.
However, after preliminary investigation, the CSCRO V found that there existed a prima
facie case for dishonesty, grave misconduct and conduct prejudicial to the best interest of
the service against the respondent.8 It found that, after a comparison of the respondent's
picture submitted in the Personal Data Sheet9 and with the picture of the person who took
the exam as found in the Picture Seat Plan,10 the respondent was not the one who actually
took the examination but caused somebody to take the exam on her behalf. The respondent
was, thus, formally charged with dishonesty, grave misconduct and conduct prejudicial to
the best interest of the service and directed to submit an answer within 72 hours from
receipt of the formal charge.
In her Answer,12 the respondent reiterated that she personally took the CSPE on December
20, 1996 and denied that she paid someone else to take the examination for her. She stated
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that she was never given the chance to examine the documents which constituted the
charge against her.
Initial hearing for the case was set on September 4, 2003 at the CSCRO V, Rawis, Legaspi
City.
When the case was called on September 5, 2003, only the prosecution appeared. It was
allowed to present its evidence ex-parte and, thereafter, rested its case. At the same hearing,
the respondent was directed to present their evidence on November 15, 2003 and was
warned that failure to do so at the appointed day and time shall constitute as a waiver.14
The respondent failed to present her evidence on November 15, 2003.
In its Order dated January 16, 2004, the CSCRO V found the respondent guilty of
dishonesty, grave misconduct and conduct prejudicial to the service.
The respondent moved for reconsideration on the grounds that: 1) her constitutional right
to due process and right to be informed of the causes against her had been denied; and 2)
the CSCRO V had no jurisdiction over the case. She said she was not given sufficient notice
to attend the scheduled hearings.
In its Order dated October 12, 2004, the CSCRO V denied the motion.
On appeal,20 the CSC, in its Resolution No. 06118321 dated July 12, 2006, affirmed the
CSCRO V orders.
The respondent moved for reconsideration on August 16, 2006, but the same was denied in
CSC Resolution No. 07120928 dated June 22, 2007.
In its Decision dated July 8, 2011, the CA found that the CSC did not afford the respondent
a hearing where she could present her case and submit evidence to support it.
The CSC moved for reconsideration, but the same was denied in Resolution dated February
10, 2012 of the CA.
Issues:
1) Whether the death of the respondent rendered the appeal moot and academic; and 2)
whether the CA erred in finding that the respondent was not afforded due process.
Ruling:
While, as a general rule, the Court has held that the death of the respondent does not
preclude a finding of administrative liability, it is not without exception. The Court stated
in Office of the Ombudsman v. Dechavez42 that from a strictly legal point of view and as
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held in a long line of cases, jurisdiction, once it attaches, cannot be defeated by the acts of
the respondent, save only where death intervenes and the action does not survive.43 In
Mercado, et al. v. Judge Salcedo (Ret.),44 the Court reiterated its rule with respect to the
death of the respondent in an administrative case:
The death of the respondent in an administrative case, as a rule, does not preclude a finding
of administrative liability. The recognized exceptions to this rule are: first, when the
respondent has not been heard and continuation of the proceedings would deny him of his
right to due process; second, where exceptional circumstances exist in the case leading to
equitable and humanitarian considerations; and third, when the kind of penalty imposed
or imposable would render the proceedings useless. x x x.45 (Citation omitted and italics
in the original)
Otherwise stated, the death of the respondent in an administrative case precludes the
finding of administrative liability when: a) due process may be subverted; b) on equitable
and humanitarian reasons; and c) the penalty imposed would render the proceedings
useless. The Court finds that the first exception applies.
Here, the case was pending appeal with the CA when the respondent passed away. The CA
was duty bound to render a ruling on the issue of whether or not the respondent was indeed
administratively liable of the alleged infraction. However, in its decision, the CA found that
the respondent was deprived of her right to due process.
The Court has, in a long line of cases, stated that due process in administrative proceedings
requires compliance with the following cardinal principles: (1) the respondents' right to a
hearing, which includes the right to present one's case and submit supporting evidence,
must be observed; (2) the tribunal must consider the evidence presented; (3) the decision
must have some basis to support itself; (4) there must be substantial evidence; (5) the
decision must be rendered on the evidence presented at the hearing, or at least contained
in the record and disclosed to the parties affected; (6) in arriving at a decision, the tribunal
must have acted on its own consideration of the law and the facts of the controversy and
must not have simply accepted the views of a subordinate; and (7) the decision must be
rendered in such manner that the respondents would know the reasons for it and the
various issues involved.
After a careful review, the Court agrees with the conclusion of the CA especially when it
stated:
The [respondent] cannot be faulted for her absence during the hearings set by the [CSCRO
V]. It is of record that notice for the first hearing set on September 4, 2003 was received in
the same day, while the notice for the second hearing was received by [the respondent] on
November 11, 2003, or only two days before the hearing. [The respondent's] counsel was in
Cebu City and the hearing was to be conducted in Legaspi City, it would be extremely
unreasonable to expect [the respondent's] attendance. Evidently, [the respondent] was not
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given enough time to be present and her counsel before the [CSCRO V]. She was unlawfully
deprived of her right to adduce evidence for her defense.
xxxx
The filing of a motion for reconsideration and appeal is not a substitute to deprive the
[respondent] of her right to due process. The opportunity to adduce evidence is essential
in the administrative process, as decisions must be rendered on the evidence presented,
either in the hearing, or at least contained in the record and disclosed to the parties
affected. x x x.47 (Citations omitted)
Since the case against the respondent was dismissed by the CA on the lack of due process,
the Court finds it proper to dismiss the present administrative case against the deceased
under the circumstances since she can no longer defend herself.
PEÑAFRANCIA SUGAR MILL, INC. v. SUGAR REGULATORY ADMINISTRATION
G.R. NO. 208660. March 5, 2014
J. Perlas-Bernabe
A case or issue is considered moot and academic when it ceases to present a
justiciable controversy by virtue of supervening events, so that an adjudication of the case
or a declaration on the issue would be of no practical value or use.
Facts:
Peñafrancia Sugar Mill, Inc is a corporation engaged in the business of milling sugar while
respondent Sugar Regulatory Administration (SRA) is a government entity created
pursuant to Executive Order No. 18 which is tasked to uphold the policy of the State “to
promote the growth and development of the sugar industry through greater and significant
participation of the private sector, and to improve the working condition of laborers.
On September 14, 1995, the SRA issued Sugar Order No. 2, s. 1995-1996. The said Sugar
Order provided that a lien of ₱2.00 per LKG-Bag to be paid by way of Manager’s Checks in
the name of PHILSURIN shall be imposed on all raw sugar quedan-permits, as well as on
any other form of sugar. Thereafter, the SRA released two (2) issuances extending the
effects of the aforesaid Sugar Order until 2015.
Questioning the validity of the Assailed Sugar Orders, PENSUMIL filed a petition for
prohibition and injunction against the SRA and PHILSURIN before the Naga City-RTC.
PENSUMIL alleged that the Assailed Sugar Orders are unconstitutional. In response, the
SRA and PHILSURIN filed their respective motions to dismiss on the ground of forumshopping. The Naga City-RTC denied SRA and PHILSURIN’s motions to dismiss. Both the
SRA and PHILSURIN moved for reconsideration but the same were denied by the Naga
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City-RTC. Aggrieved, the SRA filed a petition for certiorari before the CA. The CA nullified
and set aside the Orders of the Naga City-RTC and ordered the dismissal of the case a quo
on the ground of forum-shopping.
Issue:
Whether or not there is still an actual case or controversy requiring the exercise of judicial
power
Ruling:
Petition is dismissed for being moot and academic.
During the pendency of the instant petition, the SRA has issued Sugar Order No. 5, s. 20132014 which revoked the Assailed Sugar Orders. As a result thereof, all mill companies were
directed to cease from collecting the lien of ₱2.00 per LKG-Bag from all sugar production,
effective immediately.
A case or issue is considered moot and academic when it ceases to present a justiciable
controversy by virtue of supervening events, so that an adjudication of the case or a
declaration on the issue would be of no practical value or use. In such instance, there is no
actual substantial relief which a petitioner would be entitled to, and which would be
negated by the dismissal of the petition. Courts generally decline jurisdiction over such
case or dismiss it on the ground of mootness. This is because the judgment will not serve
any useful purpose or have any practical legal effect because, in the nature of things, it
cannot be enforced.
In this case, the supervening issuance of Sugar Order No. 5, s. 2013-2014 which revoked the
effectivity of the Assailed Sugar Orders has mooted the main issue in the case a quo - that
is the validity of the Assailed Sugar Orders. Thus, in view of this circumstance, resolving
the procedural issue on forum-shopping as herein raised would not afford the parties any
substantial relief or have any practical legal effect on the case.
JAIME C. REGIO vs. COMMISSION ON ELECTIONS and RONNIE C. CO
G.R. No. 204828, December 3, 2013
J. VELASCO, JR.
A case becomes moot when there is no more actual controversy between the parties
or no useful purpose can be served in passing upon the merits. Generally, courts will not
determine a moot question in a case in which no practical relief can be granted.
Facts:
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Petitioner Jaime C. Regio and private respondent Ronnie C. Co, among other candidates,
ran in the October 25, 2010 barangay elections for the position of punong barangay.
Immediately following the counting and canvassing of the votes from seven clustered
precincts in the adverted barangay, Regio, who garnered four hundred seventy-eight (478)
votes, as against the three hundred thirty-six (336) votes obtained by Co, was proclaimed
winner for the contested post of punong barangay.
Co filed an election protest before the MeTC. He claimed, among other things, that the
Board of Election Tellers (BET) did not follow COMELEC Resolution No. 9030, as it: (1) did
not permit his supporters to vote; (2) allowed "flying voters" to cast votes; and (3) ignored
the rules on appreciation of ballots, resulting in misreading, miscounting, and
misappreciation of ballots. Additionally, he alleged that Regio committed vote-buying, and
engaged in distribution of sample ballots inside the polling centers during the day of the
elections.
During the preliminary conference, the trial court allowed the revision of ballots. Per the
report of the revision committee, the number of votes obtained by both candidates in the
contested precincts indicated a substantial recovery on the part of Co. The results of the
revision notwithstanding, the trial court dismissed Co’s protest and declared Regio as the
duly-elected punong barangay. The trial court ruled that Co failed to sufficiently show that
the integrity of the contested ballots had been preserved. Aggrieved, Co filed an appeal
before the COMELEC. The COMELEC First Division dismissed the appeal, noting, as the
MeTC did, that Co failed to show that the integrity of the ballots in question was in fact
preserved. Echoing the trial court, the COMELEC First Division ruled that the absence of
any report or record of tampering of the ballot boxes does not preclude the possibility of
ballot tampering.
Co then filed a Motion for Reconsideration. The COMELEC En Banc reconsidered the
Resolution of the First Division, and accordingly declared Co as the duly elected punong
barangay. Thus, the present recourse, on the argument that the COMELEC En Banc
committed grave abuse of discretion amounting to lack or excess of jurisdiction when it
arbitrarily set aside the Decision of the MeTC and the Resolution of the COMELEC First
Division, in the choice between the revision results in the protested precincts and the
official vote count recorded in the election returns.
Issue:
Whether the responded committed grave abuse of discretion in ruling that private
respondent Co had successfully discharged the burden of proving the integrity of the
ballots subjected to revision.
Ruling:
The petition is granted
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At the outset, it must be noted that the protest case is dismissible for being moot and
academic. A case becomes moot when there is no more actual controversy between the
parties or no useful purpose can be served in passing upon the merits. Generally, courts
will not determine a moot question in a case in which no practical relief can be granted.
The court takes judicial notice of the holding of barangay elections last October 28, 2013.
Following the elections, the new set of barangay officials already assumed office as of noon
of November 30, 2013. It goes without saying, then, that the term of office of those who
were elected during the October 2010 barangay elections also expired by noon on
November 30, 2013. In fine, with the election of a new punong barangay during the October
28, 2013 elections, the issue of who the rightful winner of the 2010 barangay elections has
already been rendered moot and academic.
We find that the grave abuse of discretion committed by the COMELEC En Banc,
specifically in ignoring the rules on evidence, merits consideration.
In Rosal v. COMELEC this Court summarized the standards to be observed in an election
contest predicated on the theory that the election returns do not accurately reflect the will
of the voters due to alleged irregularities in the appreciation and counting of ballots. These
guiding standards are:
(1) The ballots cannot be used to overturn the official count as reflected in
the election returns unless it is first shown affirmatively that the ballots have
been preserved with a care which precludes the opportunity of tampering
and suspicion of change, abstraction or substitution;
(2) The burden of proving that the integrity of the ballots has been preserved
in such a manner is on the protestant;
(3) Where a mode of preserving the ballots is enjoined by law, proof must be
made of such substantial compliance with the requirements of that mode as
would provide assurance that the ballots have been kept inviolate
notwithstanding slight deviations from the precise mode of achieving that
end;
(4) It is only when the protestant has shown substantial compliance with the
provisions of law on the preservation of ballots that the burden of proving
actual tampering or likelihood thereof shifts to the protestee; and
(5) Only if it appears to the satisfaction of the court of COMELEC that the
integrity of the ballots has been preserved should it adopt the result as shown
by the recount and not as reflected in the election returns. In the same case,
the Court referred to various provisions in the Omnibus Election Code
providing for the safe-keeping and preservation of the ballots.
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Rosal was promulgated precisely to honor the presumption of regularity in the performance
of official functions. Following Rosal, it is presumed that the BET and Board of Canvassers
had faithfully performed the solemn duty reposed unto them during the day of the
elections. Thus, primacy is given to the official results of the canvassing, even in cases where
there is a discrepancy between such results and the results of the revision proceedings. It
is only when the protestant has successfully discharged the burden of proving that the recounted ballots are the very same ones counted during the revision proceedings, will the
court or the Commission, as the case may be, even consider the revision results. Even then,
the results of the revision will not automatically be given more weight over the official
canvassing results or the election returns. What happens in the event of discrepancy
between the revision results and the election returns is that the burden of proof shifts to
the protestee to provide evidence of actual tampering of the ballots, or at least a likelihood
of tampering. It is only when the court or the COMELEC is fully satisfied that the ballots
have been well preserved, and that there had been no tampering of the ballots, that it will
accord credibility to the results of the revision.
Private respondent Co has not proved that the integrity of the ballots has been preserved
Applying Rosal, this Court rules that the COMELEC En Banc committed grave abuse of
discretion in ruling that private respondent had successfully discharged the burden of
proving that the ballots counted during the revision proceedings are the same ballots cast
and counted during the day of the elections. It is well to note that the respondent Co did
not present any testimonial evidence to prove that the election paraphernalia inside the
protested ballot boxes had been preserved. He mainly relied on the report of the revision
committee. There was no independent, direct or indirect, evidence to prove the
preservation of the ballots and other election paraphernalia. This leads us to no other
conclusion but that respondent Co failed to discharge his burden under the Rosal doctrine.
With no independent evidence to speak of, respondent Co cannot simply rely on the report
of the revision committee, and from there conclude that the report itself is proof of the
preservation of the ballots. What he needs to provide is evidence independent of the
revision proceedings. Without any such evidence, the Court or the COMELEC, as the case
may be, will be constrained to honor the presumption that the data and information
supplied by the members of the Boards of Election Inspectors in the accountable forms are
true and correct.
HADJI HASHIM ABDUL vs. HONORABLE SANDIGANBAYAN (FIFTH DIVISION)
and PEOPLE OF THE PHILIPPINES
G.R. NO. 184496, December 2, 2013
J. DEL CASTILLO
For a court to exercise its power of adjudication, there must be an actual case or
controversy. Thus, in Mattel, Inc. v. Francisco we have ruled that "where the issue has
become moot and academic, there is no justiciable controversy, and adjudication thereof
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would be of no practical use or value as courts do not sit to adjudicate mere academic
questions to satisfy scholarly interest however intellectually challenging."
Facts:
Petitioner was first elected as municipal mayor of Mulondo, Lanao del Sur in the May 1998
election and re-elected for a second term in the May 2001 election. It was while serving his
second term as municipal mayor when the Office of the Ombudsman-Mindanao filed an
Information on charging petitioner, along with Abdul and Domado, with falsification of
public documents, defined and penalized under Article 171(2) of the Revised Penal Code
(RPC).
During the arraignment, petitioner and his co-accused pleaded not guilty to the offense
charged. Before the commencement of the trial, the Office of the Special Prosecutor (OSP)
moved for the suspension pendente lite of the petitioner and his co-accused as mandated
under Section 13 of Republic Act No. 3019 (RA 3019) or the Anti-Graft and Corrupt Practices
Act.
The OSP averred that suspension is mandatory. In his Comment, petitioner asserted that
he cannot be suspended pendente lite because the crime for which he was charged is not
among those enumerated under Section 13 of RA 3019. He was not charged under RA 3019
or Title Seven, Book II of the RPC. Neither does fraud upon government or public funds or
property cover falsification of public document nor fraud per se, an ingredient of the
offense of falsification of public document.
Finding the charge as squarely falling within the ambit of Section 13, RA 3019, respondent
granted in its Resolution the OSP’s motion and accordingly ordered the suspension
pendente lite of the petitioner and his co-accused from their respective positions and from
any other public office which they may now or hereafter be holding for a period of 90 days
from notice. Petitioner moved for reconsideration, but the same was denied.
Thus he filed with this Court a Petition for Certiorari with Prayer for TRO alleging that the
suspension order was issued with grave abuse of discretion amounting to lack of
jurisdiction. In a Resolution, the Court dismissed the Petition, which dismissal attained
finality. The suspension order, however, was no longer implemented because it was
superseded by the expiration of petitioner’s second term as municipal mayor and his
unsuccessful bid for re-election during the May 2004 election. During the May 2007
election, petitioner emerged as the winner in the mayoralty race and again sat as Mayor of
Mulondo, Lanao del Sur. The OSP once again moved for his and his co-accused’s
suspension pendente lite to implement respondent’s final and executory suspension order
of October 9, 2003. In his Comment and Opposition, petitioner called attention to
respondent’s pronouncement in its Resolution dated December 20, 2004 that his defeat in
the May 2004 election has effectively rendered his suspension moot and academic.
Nonetheless, respondent, through its Resolution of May 14, 2008, ordered anew the
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suspension of petitioner from his present position for a period of 90 days. Petitioner moved
for reconsideration, but the same was denied in a Resolution. Undeterred, petitioner filed
the present Petition for Certiorari with prayer for TRO submitting again the sole issue of
whether the Sandiganbayan acted with grave abuse of discretion amounting to lack or
excess of jurisdiction in suspending him pendente lite from his position as mayor of
Mulondo, Lanao del Sur. The Court issued a TRO enjoining the implementation of the
suspension Order. Subsequently while the present Petition was pending before the Court,
respondent Sandiganbayan promulgated its Decision acquitting petitioner and his coaccused of the offense charged.
Issue:
Whether the offense involves "fraud or property;" hence, the suspension finds basis in
Section 13 of RA 3019.
Ruling:
The petition is dismissed.
We dismiss the Petition for being moot and academic. For a court to exercise its power of
adjudication, there must be an actual case or controversy. Thus, in Mattel, Inc. v.
Francisco we have ruled that "where the issue has become moot and academic, there is no
justiciable controversy, and adjudication thereof would be of no practical use or value as
courts do not sit to adjudicate mere academic questions to satisfy scholarly interest
however intellectually challenging."
In the present case, the acquittal of herein petitioner operates as a supervening event that
mooted the present Petition. Any resolution on the validity or invalidity of the issuance of
the order of suspension could no longer affect his rights as a ranking public officer, for
legally speaking he did not commit the offense charged.
Notwithstanding the mootness of the present Petition, petitioner nevertheless implores us
to make a clear and categorical resolution on whether the offense of falsification of public
documents under Article 171 of the RPC is included in the term "fraud" as contemplated
under Section 13 of RA 3019. As earlier quoted, to warrant the suspension of a public officer
under the said Section 13, he must be charged with an offense (1) under RA 3019, or (2)
under Title Seven, Book II of the RPC, or (3) involving fraud upon government or public
funds or property. Admittedly, petitioner in this case was not charged under RA 3019.
Neither was he charged under Title Seven, Book II of the RPC as the crime of falsification
of public documents under Article 171 of the RPC is covered by Title Four, Book II thereof.
The relevant question now is whether falsification of public documents is considered as
fraud upon government or public funds or property.
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This issue is not of first impression. Close but not exactly similar with the factual backdrop
of this case is Bustillo v. Sandiganbayan. Petitioner therein was charged with falsifying
municipal vouchers which, as used in government, are official documents. He asserted the
said offense does not involve "fraud or property;" hence, his suspension finds no basis in
Section 13 of RA 3019. In construing the term "fraud" as used in Section 13 of RA 3019, the
Court held in said case that the same is understood in its general sense, that is, referring to
"an instance or an act of trickery or deceit especially when involving misrepresentation."
And since vouchers are official documents signifying a cash outflow from government
coffers, falsification thereof invariably involves fraud upon public funds. Again, in Bartolo
v. Sandiganbayan, Second Division, the Court citing Bustillo underscored the fact that "the
term fraud as used in Section 13 of RA 3019 is understood in its generic sense."
In the same vein, the act imputed against petitioner constitutes fraud upon government or
public funds. This was aptly explained by respondent in its Resolution, viz:
The existence of fraud in the commission of the offense charged can be easily
associated from the nature of the acts of herein accused when they made it
appear and signed Local budget Preparation Forms No. 152, 153 and 154, when
in truth and in fact, said Engr. Murad was not even an employee of the
Municipality of Mulondo, Lanao del Sur. As a consequence of this act, several
projects, their costs and extent, were authorized without the careful
assessment of [the] legitimate municipal engineer. This alone is sufficient to
justify the Court’s conclusion that, indeed, the alleged act of accused
constitutes fraud upon the government.
In fine, we reiterate that he issue on the validity or invalidity of petitioner’s suspension had
mooted considering his acquittal by the Sandiganbayan in its November 24, 2009 Decision.
As such, there is no justiciable controversy for this Court to adjudicate.
OFFICE OF THE COURT ADMINISTRATOR vs. DESIDERIO W. MACUSI
A.M. No. P-13-3105, September 11, 2013
J. Leonardo-de Castro
Cessation from office of respondent by resignation or retirement neither warrants
the dismissal of the administrative complaint filed against him while he was still in the
service nor does it render said administrative case moot and academic. The jurisdiction
that was this Court’s at the time of the filing of the administrative complaint was not lost
by the mere fact that the respondent public official had ceased in office during the
pendency of his case. Respondent’s resignation does not preclude the finding of any
administrative liability to which he shall still be answerable.
Facts:
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Paligan was the plaintiff in Civil Case for an action for collection of sum of money with
damages before the MTCC of Tabuk City, Kalinga. In A letter addressed to the Presiding
Judge, MTCC, Tabuk City, Kalinga, Paligan inquired as to the status of the writ of execution
issued by the MTCC, since she had not received any report or information whether the said
writ had already been served. Paligan also furnished the Sheriff of the RTC Branch 25 of
Tabuk City, Kalinga, a copy of her letter.
Judge Dalanao, MTCC, Tabuk City, Kalinga, through a 1st Indorsement dated July 29, 2009
referred Paligan's letter to the Office of the Court Administrator (OCA) for appropriate
action. Judge Dalanao reported that the writ of execution was received by the Office of the
Provincial Sheriff on September 19, 2008. A return was made on October 30, 2008 informing
the court that the writ was returned "unserved." Thereafter, no other report on the writ was
made. Judge Dalanao further observed that a lot of cases are similarly situated, where not
even a report has been submitted as prescribed by the Rules of Court.
In a 2nd Indorsement the OCA referred Judge Dalanao’s 1st Indorsement dated July 29,
2009 and Paligan’s letter dated July 23, 2009 to Atty. Mary Jane A. Andomang Clerk of
Court, RTC, Tabuk City, Kalinga, for comment and appropriate action.
Complying with the 2nd Indorsement, Atty. Andomang sent a Comment and Report to the
OCA. In her Comment and Report, Atty. Andomang recounted that she already required
the Deputy Sheriff to explain why no report was made on the writ in Civil Case since
October 2008. The Deputy Sheriff explained to her in a letter that no report was made
because Paligan never appeared at the Office to coordinate the implementation of the said
writ. Atty. Andomang claimed that she had always reminded the Deputy Sheriff of his
duties and responsibilities in serving writs and making periodic reports.
Instead of filing a reply to Atty. Andomang’s Comment and Report as directed by the OCA,
Judge Dalanao submitted a letter with an inventory of cases "if only to show the acts of the
Sheriff." Judge Dalanao pointed out that the Sheriff was inconsistent: making reports in
some cases, although some of said reports were late, and making no reports at all in other
cases. Judge Dalanao further noted that five years has already lapsed without execution in
several cases. He has also yet to receive the Sheriff’s estimate of expenses for approval. Judge
Dalanao lastly averred that after receiving complaints from parties, he already verbally
brought up the matter with the Executive Judge, and even personally talked to the Sheriff
several times to remind the Sheriff of his duties and responsibilities.
The OCA, finding that Macusi violated Rule 39, Section 14 and Rule141, Section 9 of the
Rules of Court, sent the latter a letter directing him to show cause why no disciplinary
action should be taken against him.
In a Resolution the Court treated the instant matter as an administrative complaint against
Macusi and referred the same to Executive Judge Marcelino K. Wacas, RTC-Branch 25,
Tabuk City, Kalinga, for investigation, report, and recommendation. The Court also
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directed Atty. Andomang to facilitate, in coordination with all concerned, the immediate
implementation of the writs of execution listed in Judge Dalanao’s inventory and submit a
status report thereon within 30 days from notice.
After his investigation, Judge Wacas found substantial evidence that Macusi violated Rule
39, Section 14 and Rule 141, Section 10 of the Rules of Court. According to Judge Wacas,
Macusi exercised "some degree of discretion," having his own rules and unmindful of the
existing rules and established jurisprudence.
Macusi submitted his Manifestation and Motion, informing the Court that he was deemed
resigned from government service by operation of law when he filed his Certificate of
Candidacy for the position of City Councilor in Tabuk City, Kalinga for the 2010 Local
Elections. He prayed that the Court dismiss the administrative case against him for being
moot and academic.
As found by Judge Wacas and the OCA, Macusi violated Rule 39,Section 14 and Rule 141,
Section 10 of the Rules of Court.
Issue:
Whether the resignation of Macusi renders the administrative complaint against him moot
and academic.
Ruling:
Petition is denied.
The raison d’ etre behind the requirement of periodic reports under Rule 39, Section 14 of
the Rules of Court is to update the court on the status of the execution and to take necessary
steps to ensure the speedy execution of decisions.
As observed by Judge Wacas, Macusi exercised excessive discretion in the execution of the
writs and in the filing of reports thereon. He seemed to have entirely overlooked that the
nature of a sheriff’s duty in the execution of a writ issued by a court is purely ministerial.
As such, a sheriff has the duty to perform faithfully and accurately what is incumbent upon
him. Conversely, he exercises no discretion as to the manner of executing a final judgment.
Any method of execution falling short of the requirement of the law deserves reproach and
should not be countenanced.
A sheriff is guilty of violating Rule 141, Section 10 of the Rules of Court if he fails to observe
the following: (1) prepare an estimate of expenses to be incurred in executing the writ; (2)
ask for the court’s approval of his estimates; (3) render an accounting; and (4) issue an
official receipt for the total amount he received from the judgment debtor.
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There is no showing herein that Macusi complied with the foregoing procedure. Macusi
even actually admitted that he did not submit an estimate of expenses because the winning
parties in some of the cases willingly spent for the execution of their writs. Macusi’s
explanation only makes matters worse for him as sheriffs are not allowed to receive any
voluntary payments from parties in the course of the performance of their duties.
Sheriffs and their deputies are the front-line representatives of the justice system, and if,
through their lack of care and diligence in the implementation of judicial writs, they lose
the trust reposed on them, they inevitably diminish the faith of the people in the Judiciary.
It cannot be overstressed that the image of a court of justice is mirrored in the conduct,
official and otherwise, of the personnel who work there, from the judge to the lowest
employee. As such, the Court will not tolerate or condone any conduct of judicial agents or
employees which would tend to or actually diminish the faith of the people in the Judiciary.
Macusi’s prayer for dismissal of the present case for being moot is baseless. Macusi’s
constructive resignation from service through filing of his Certificate of Candidacy for the
2010 Local Elections does not render the case against him moot. Resignation is not a way
out to evade administrative liability when a court employee is facing administrative
sanction. As the Court held in Baquerfo v. Sanchez:
Cessation from office of respondent by resignation or retirement neither
warrants the dismissal of the administrative complaint filed against him
while he was still in the service nor does it render said administrative case
moot and academic. The jurisdiction that was this Court’s at the time of the
filing of the administrative complaint was not lost by the mere fact that the
respondent public official had ceased in office during the pendency of his
case. Respondent’s resignation does not preclude the finding of any
administrative liability to which he shall still be answerable.
REPUBLIC OF THE PHILIPPINES, represented by the ANTI-MONEY LAUNDERING
COUNCIL, vs. RAFAEL A. MANALO, GRACE M. OLIVA, and FREIDA Z. RIVERA-YAP
G.R. No. 192302, June 4, 2014, J. Perlas-Bernabe
A case or issue is considered moot and academic when it ceases to present a justiciable
controversy by virtue of supervening events, so that an adjudication of the case or a
declaration on the issue would be of no practical value or use. In such instance, there is no
actual substantial relief which a petitioner would be entitled to, and which would be negated
by the dismissal of the petition. Courts generally decline jurisdiction over such case or dismiss
it on the ground of mootness, as a judgment in a case which presents a moot question can no
longer be enforced. RTC's rendition of the Decision by virtue of which the assets subject of the
said cases were all forfeited in favor of the government, are supervening events which have
rendered the essential issue in this case moot and academic, that is, whether or not
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respondents should have been allowed by the RTC to intervene on the ground that they have
a legal interest in the forfeited assets.
Facts:
Petitioner Republic of the Philippines (Republic), represented in this case by the
Anti-Money Laundering Council (AMLC), filed a complaint for civil forfeiture, before the
Manila RTC. Subsequently, it filed a second complaint for civil forfeiture, entitled "Republic
v. Ariola, Jr., et al....," also before the same RTC. In the said civil forfeiture cases, the
Republic sought the forfeiture in its favor of certain deposits and government securities
maintained in several bank accounts by the defendants therein, which were related to the
unlawful activity of fraudulently accepting investments from the public, in violation of the
Securities Regulation Code as well as the Anti-Money Laundering Act of 2001.
On September 25 and 27, 2006, herein respondents filed separate Motions for Leave
to Intervene in the civil forfeiture cases, alleging, that they have a valid interest in the bank
accounts subject thereof. They asserted that in a separate petition for involuntary
insolvency proceedings, filed before the RTC of Makati City (insolvency case), they were
appointed as assignees of the properties of Spouses Saturnino and Rosario Baladjay (Sps.
Baladjay) who were impleaded as defendants in the civil forfeiture cases.
The RTC rendered a Joint Order denying respondents’ separate motions for
intervention, citing Section 35 of the Rule of Procedure in Cases of Civil Forfeiture (Civil
Forfeiture Rules) which states:
Sec. 35.Notice to file claims.- Where the court has issued an order of forfeiture of
the monetary instrument or property in a civil forfeiture petition for any money laundering
offense defined under Section 4 of Republic Act No. 9160, as amended, any person who has
not been impleaded nor intervened claiming an interest therein may apply, by verified
petition, for a declaration that the same legitimately belongs to him and for segregation or
exclusion of the monetary instrument or property corresponding thereto. The verified
petition shall be filed with the court which rendered the order of forfeiture within fifteen
days from the date of finality of the order of forfeiture, in default of which the said order
shall be executory and bar all other claims.
In view of the remedy stated in the foregoing provision, the Manila RTC thus
ratiocinated that respondents "need not unduly worry as they are amply protected in the
event the funds subject of the instant case are ordered forfeited in favor of the [Republic]."
The CA reversed the decision of the RTC, ruling that the RTC gravely abused its
discretion in denying respondents’ separate motions for intervention. It found that
respondents were able to establish their rights as assignees in the insolvency case filed by
Sps. Baladjay. As such, they have a valid interest in the bank accounts subject of the civil
forfeiture cases. Moreover, a reading of Section 35 of the Civil Forfeiture Rules as abovePage 253 of 1446
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cited revealed that there is nothing therein that prohibits an interested party from
intervening in the case before an order of forfeiture is issued.
Issue:
Whether or not the CA erred in holding that the RTC committed grave abuse of
discretion in issuing the Order which denied respondents’ separate motions for
intervention in the civil forfeiture cases.
Ruling:
The petition must be dismissed for having become moot and academic.
A case or issue is considered moot and academic when it ceases to present a
justiciable controversy by virtue of supervening events, so that an adjudication of the case
or a declaration on the issue would be of no practical value or use. In such instance, there
is no actual substantial relief which a petitioner would be entitled to, and which would be
negated by the dismissal of the petition. Courts generally decline jurisdiction over such
case or dismiss it on the ground of mootness, as a judgment in a case which presents a moot
question can no longer be enforced.
RTC's rendition of the Decision by virtue of which the assets subject of the said cases
were all forfeited in favor of the government, are supervening events which have rendered
the essential issue in this case moot and academic, that is, whether or not respondents
should have been allowed by the RTC to intervene on the ground that they have a legal
interest in the forfeited assets. As the proceedings in the civil forfeiture cases from which
the issue of intervention is merely an incident have already been duly concluded, no
substantial relief can be granted to the Republic by resolving the instant petition.
WHEREFORE, the petition is DISMISSED for being moot and academic.
Political Question Doctrine
THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP
VICENTE M. NAVARRA and THE BISHOP HIMSELF IN HIS PERSONAL CAPACITY
vs. COMMISSION OF ELECTIONS AND THE ELECTION OFFICER OF BACOLOD
CITY, ATTY. MAVIL V. MAJARUCON
G.R. No. 205728, January 21, 2015, J. Leonen
When petitioners, a Diocese and its Bishop posted tarpaulins in front of the cathedral
which aimed to dissuade voters from electing candidates who supported the RH Law, and the
COMELEC twice ordered the latter to dismantle the tarpaulin for violation of its regulation
which imposed a size limit on campaign materials, the case is about COMELEC’s breach of
the petitioners’ fundamental right of expression of matters relating to election. The concept
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of a political question never precludes judicial review when the act of a constitutional organ
infringes upon a fundamental individual or collective right.
Facts:
On February 21, 2013, petitioners The Diocese of Bacolod and the Most Rev. Bishop
Navarra posted two (2) tarpaulins within a private compound housing the San Sebastian
Cathedral of Bacolod. Each tarpaulin was approximately six feet (6') by ten feet (10') in size.
They were posted on the front walls of the cathedral within public view. The second
tarpaulin contains the heading “Conscience Vote” and lists candidates as either “(Anti-RH)
Team Buhay” with a check mark, or “(Pro-RH) Team Patay” with an “X” mark. The electoral
candidates were classified according to their vote on the adoption of Republic Act No.
10354, otherwise known as the RH Law. Those who voted for the passing of the law were
classified by petitioners as comprising “Team Patay,” while those who voted against it form
“Team Buhay”. These tarpaulins were not paid for nor sponsored by any candidate, and
they contain names of candidates for the 2013 elections, but not of politicians who helped
in the passage of the RH Law but were not candidates for that election.
On February 22, 2013 respondent Atty. Majarucon, in her capacity as Election Officer
of Bacolod City, ordered Bishop Navarra to remove the tarpaulin within 3 days from receipt
for being oversized, in violation of COMELEC Resolution No. 9615 which provided for a
size requirement for campaign materials. Petitioners requested for a definitive ruling from
the COMELEC Law Department. On February 27, 2013 the latter ordered the immediate
removal of the tarpaulin for violation of the abovementioned Resolution; otherwise
COMELEC will file an election offense case against the petitioners.
Concerned about the imminent threat of prosecution for their exercise of free
speech, petitioners initiated before the Supreme Court a special civil action for certiorari
and prohibition with application for preliminary injunction and temporary restraining
order under Rule 65 of the Rules of Court seeking to nullify COMELEC’s Notice to Remove
Campaign Materials dated February 22, 2013 and letter issued on February 27, 2013.
Issue:
Was the size limitation under the COMELEC resolution and its reasonableness not
a political question and is thus within the ambit of the SC’s power of review?
Ruling:
The petition is Granted.
This case concerns the right of petitioners, who are non-candidates, to post the
tarpaulin in their private property, as an exercise of their right of free expression, which is
allegedly infringed by COMELEC’s orders. The concept of a political question never
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precludes judicial review when the act of a constitutional organ infringes upon a
fundamental individual or collective right.
The case before this Court does not call for the exercise of prudence or modesty.
There is no political question. It can be acted upon by this court through the expanded
jurisdiction granted to this court through Article VIII, Section 1 of the Constitution.
A political question arises in constitutional issues relating to the powers or
competence of different agencies and departments of the executive or those of the
legislature. The political question doctrine is used as a defense when the petition asks this
court to nullify certain acts that are exclusively within the domain of their respective
competencies, as provided by the Constitution or the law. In such situation, presumptively,
this court should act with deference. It will decline to void an act unless the exercise of that
power was so capricious and arbitrary so as to amount to grave abuse of discretion.
The concept of a political question, however, never precludes judicial review when
the act of a constitutional organ infringes upon a fundamental individual or collective right.
As stated in Francisco vs. HRET, a political question will not be considered
justiciable if there are no constitutionally imposed limits on powers or functions conferred
upon political bodies. Hence, the existence of constitutionally imposed limits justifies
subjecting the official actions of the body to the scrutiny and review of this court.
In this case, the Bill of Rights gives the utmost deference to the right to free speech.
Any instance that this right may be abridged demands judicial scrutiny. It does not fall
squarely into any doubt that a political question brings.
JUDICIAL RESTRAINT
RODOLFO M. AGDEPPA vs. HONORABLE OFFICE OF THE OMBUDSMAN, et al.
G.R. No. 146376, April 23, 2014, J. Leonardo-De Castro
Not every error in the proceedings, or every erroneous conclusion of law or fact,
constitutes grave abuse of discretion. While the prosecutor, or in this case, the investigating
officers of the Office of the Ombudsman, may err or even abuse the discretion lodged in them
by law, such error or abuse alone does not render their act amenable to correction and
annulment by the extraordinary remedy of certiorari. The requirement for judicial intrusion
is still for the petitioner Agdeppa to demonstrate clearly that the Office of the Ombudsman
committed grave abuse of discretion amounting to lack or excess of jurisdiction. Unless such
a clear demonstration is made, the intervention is disallowed in deference to the doctrine of
non-interference. The Court adheres to a policy of non-interference with the investigatory
and prosecutorial powers of the Office of the Ombudsman. However, other than his own
allegations, suspicions, and surmises, Agdeppa did not submit independent or corroborating
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evidence in support of the purported conspiracy. Taking away Agdeppa’s conspiracy theory,
the grounds for his Petition no longer have a leg to stand on.
Facts:
Agdeppa filed before the Office of the Ombudsman an Affidavit-Complaint against
Jarlos-Martin, Laurezo, and Junia, docketed as OMB-MIL-CRIM-00-0470. Agdeppa’s
criminal complaint in OMB-MIL-CRIM-00-0470 is essentially rooted in two external acts
by Jarlos-Martin and Laurezo in OMB-0-99-1015: (1) Jarlos-Martin’s issuance of the Order
dated September 23, 1999 requiring Junia to personally appear before the Office of the
Ombudsman to swear to his Complaint in OMB-0-99-1015, followed by the Order dated
October 6, 1999 directing Agdeppa and Castillo to file their counter-affidavits to Junia’s
Complaint which was then already under oath; and (2) Laurezo’s certifying that Junia
personally appeared before him on October 6, 1999 to swear to the Complaint in OMB-099-1015. Agdeppa alleged that these acts were committed by Jarlos-Martin, Laurezo, and
Junia in conspiracy with one another to deliberately benefit Junia and prejudice Agdeppa
and, thus, constituted corrupt acts under Section 3(a), (e), (f), (j) of Republic Act No. 3019.
In the Order dated June 6, 2000 in OMB-MIL-CRIM-00-0470, the Office of the
Ombudsman required only Jarlos-Martin and Laurezo to file their counter-affidavits and
evidence. Agdeppa asserts that the Office of the Ombudsman has jurisdiction over Junia, a
private individual, who conspired with Jarlos-Martin and Laurezo, public officers, in the
commission of acts violative of Republic Act No. 3019. The exclusion of Junia in the Order
dated June 6, 2000 was in contravention of procedural due process as Junia was an
indispensable party in OMB-MIL-CRIM-00-0470 and without his counter-affidavit, there
could be no complete preliminary investigation in said case.
The Office of the Ombudsman, in the Resolution dated July 31, 2000 and Order
dated September 28, 2000, dismissed Agdeppa’s charges for lack of basis in fact and in law.
Issue:
Whether or not Agdeppa failed to clearly demonstrate grave abuse of discretion by
the Office of the Ombudsman that would have justified the issuance of a writ of certiorari
by the SC
Ruling:
Yes, Agdeppa failed to clearly demonstrate grave abuse of discretion by the Office
of the Ombudsman that would have justified the issuance of a writ of certiorari.
Not every error in the proceedings, or every erroneous conclusion of law or fact,
constitutes grave abuse of discretion. While the prosecutor, or in this case, the investigating
officers of the Office of the Ombudsman, may err or even abuse the discretion lodged in
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them by law, such error or abuse alone does not render their act amenable to correction
and annulment by the extraordinary remedy of certiorari. The requirement for judicial
intrusion is still for the petitioner Agdeppa to demonstrate clearly that the Office of the
Ombudsman committed grave abuse of discretion amounting to lack or excess of
jurisdiction. Unless such a clear demonstration is made, the intervention is disallowed in
deference to the doctrine of non-interference.
Throughout his Petition, Agdeppa presents a grand conspiracy between the Office
of the Ombudsman and Junia, with the Office of the Ombudsman deliberately acting upon
and deciding OMB-MIL-CRIM-00-0470 (as well as OMB-0-99-1015) contrary to Agdeppa’s
interest and favorable to Junia’s. Agdeppa sees every act or decision of the Office of the
Ombudsman adverse to his interest tainted with capriciousness and arbitrariness.
However, other than his own allegations, suspicions, and surmises, Agdeppa did not submit
independent or corroborating evidence in support of the purported conspiracy. The basic
rule is that mere allegation is not evidence and is not equivalent to proof. Charges based
on mere suspicion and speculation likewise cannot be given credence. When the
complainant relies on mere conjectures and suppositions, and fails to substantiate his
allegations, the complaint must be dismissed for lack of merit. Taking away Agdeppa’s
conspiracy theory, the grounds for his Petition no longer have a leg to stand on.
The Court adheres to a policy of non-interference with the investigatory and
prosecutorial powers of the Office of the Ombudsman. It is well-settled that the
determination of probable cause against those in public office during a preliminary
investigation is a function that belongs to the Ombudsman. The Ombudsman is vested
with the sole power to investigate and prosecute, motu proprio or upon the complaint of
any person, any act or omission which appears to be illegal, unjust, improper, or inefficient.
It has the discretion to determine whether a criminal case, given its attendant facts and
circumstances, should be filed or not.
The Court respects the relative autonomy of the Ombudsman to investigate and
prosecute, and refrains from interfering when the latter exercises such powers either
directly or through the Deputy Ombudsman, except when there is grave abuse of
discretion. Indeed, the Ombudsman’s determination of probable cause may only be
assailed through certiorari proceedings before this Court on the ground that such
determination is tainted with grave abuse of discretion defined as such capricious and
whimsical exercise of judgment as is equivalent to lack of jurisdiction. For there to be a
finding of grave abuse of discretion, it must be shown that the discretionary power was
exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and
the abuse of discretion must be so patent and gross as to amount to an evasion of a positive
duty or to a virtual refusal to perform the duty enjoined or to act in contemplation of law.
JUDICIAL AND BAR COUNCIL
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HON. PHILIP A. AGUINALDO, et al. vs. HIS EXCELLENCY PRESIDENT BENIGNO
SIMEON C. AQUINO III, et al.
G.R. No. 224302 | February 21, 2017 | Leonardo-De Castro, J.
FACTS: Petitioners Aguinaldo, et al., who were all nominees in the shortlist for the 16th
Sandiganbayan Associate Justice, argue that only nominees for the position of the 16th
Sandiganbayan Associate Justice may be appointed as the 16th Sandiganbayan Associate
Justice, and the same goes for the nominees for each of the vacancies for the 17th, 18th, 19th,
20th, and 21st Sandiganbayan Associate Justices. Petitioners insist that President Aquino
could only choose one nominee from each of the six separate shortlists submitted by the
JBC for each specific vacancy, and no other; and any appointment made in deviation of this
procedure is a violation of the Constitution.
However, on January 20, 2016, Pres. Aquino issued the appointment papers for the six new
Sandiganbayan Associate Justices, to wit:
Vacancy
in
Sandiganbayan
16th Associate Justice
17th Associate Justice
18th Associate Justice
19th Associate Justice
20th Associate Justice
21st Associate Justice
the Person Appointed
Respondent Musngi
Justice R. Cruz
Respondent Econg
Justice Mendoza-Arcega
Justice Miranda
Justice Trespeses
Shortlisted for
21st Associate Justice
19th Associate Justice
21st Associate Justice
17th Associate Justice
20th Associate Justice
18th Associate Justice
Thus, according to the petitioners, only the appointment of Justice Miranda is in
accordance with his nomination,
ISSUE: Whether President Aquino, under the circumstances, was limited to appoint only
from the nominees in the shortlist submitted by the JBC for each specific vacancy. NO.
RULING:
Article VIII, Section 9 of the 1987 Constitution provides that "[t]he Members of the Supreme
Court and judges of lower courts shall be appointed by the President from a list of at least
three nominees prepared by the Judicial and Bar Council for every vacancy."
The appointment process for the Judiciary seems simple enough if there is only one vacancy
to consider at a time. The power of the President to appoint members of the Judiciary is
beyond question, subject to the limitation that the President can only appoint from a list
of at least three nominees submitted by the JBC for
every vacancy. However, the
controversy in this case arose because by virtue of RA 10660, creating two new divisions of
the Sandiganbayan with three members each, there were six simultaneous vacancies for
Associate Justice of said collegiate court; and that the JBC submitted six separate shortlists
for the vacancies for the 16th to the 21st Sandiganbayan Associate Justices.
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The JBC was created under the 1987 Constitution with the principal function of
recommending appointees to the Judiciary. It is a body, representative of all the
stakeholders in the judicial appointment process, intended to rid the process of
appointments to the Judiciary of the evils of political pressure and partisan activities.
It should be stressed that the power to recommend of the JBC cannot be used to restrict or
limit the President's power to appoint as the latter's prerogative to choose someone whom
he/she considers worth appointing to the vacancy in the Judiciary is still paramount. As
long as in the end, the President appoints someone nominated by the JBC, the appointment
is valid. On this score, the Court finds herein that President Aquino was not obliged to
appoint one new Sandiganbayan Associate Justice from each of the six shortlists submitted
by the JBC, especially when the clustering of nominees into the six shortlists encroached
on President Aquino's power to appoint members of the Judiciary from all those whom the
JBC had considered to be qualified for the same positions of Sandiganbayan Associate
Justice.
Moreover, in the case at bar, there were six simultaneous vacancies for the position of
Sandiganbayan Associate Justice, and the JBC cannot, by clustering of the nominees,
designate a numerical order of seniority of the prospective appointees. As discussed in Re:
Seniority Among the Four (4) Most Recent Appointments to the Position of Associate Justices
of the Court of Appeals, the earlier the date of the commission of an appointee, the more
senior he/she is over the other subsequent appointees. It is only when the appointments of
two or more appointees bear the same date that the order of issuance of the appointments
by the President becomes material.
It bears to point out that part of the President's power to appoint members of a collegiate
court, such as the Sandiganbayan, is the power to determine the seniority or order of
preference of such newly appointed members by controlling the date and order of issuance
of said members' appointment or commission papers.
The Sandiganbayan Associate Justice positions were created without any distinction as to
rank in seniority or order of preference in the collegiate court. The President appoints his
choice nominee to the post of Sandiganbayan Associate Justice, but not to a Sandiganbayan
Associate Justice position with an identified rank, which is automatically determined by
the order of issuance of appointment by the President. The appointment does not
specifically pertain to the 16th, 17th, 18th, 19th, 20th or 21st Sandiganbayan Associate Justice,
because the Sandiganbayan Associate Justice's ranking is temporary and changes every
time a vacancy occurs in said collegiate court.
Clustering impinges upon the President's power of appointment, as well as restricts the
chances for appointment of the qualified nominees, because (1) the President's option for
every vacancy is limited to the five to seven nominees in the cluster; and (2) once the
President has appointed from one cluster, then he is proscribed from considering the other
nominees in the same cluster for the other vacancies. The said limitations are utterly
without legal basis and in contravention of the President's appointing power.
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In view of the foregoing, President Aquino validly exercised his discretionary power to
appoint members of the Judiciary when he disregarded the clustering of nominees into six
separate shortlists for the vacancies for the 16th, 17th, 18th, 19th, 20th or 21st Sandiganbayan
Associate Justices. President Aquino merely maintained the well-established practice,
consistent with the paramount Presidential constitutional prerogative, to appoint the six
new Sandiganbayan Associate Justices from 37 qualified nominees, as if embodied in one
JBC list. This does not violate Article VIII, Section 9 of the 1987 Constitution which requires
the President to appoint from a list of at least three nominees submitted by the JBC for
every vacancy. To meet the minimum requirement under said constitutional provision of
three nominees per vacancy, there should at least be 18 nominees from the JBC for the six
vacancies for Sandiganbayan Associate Justice; but the minimum requirement was even
exceeded herein because the JBC submitted for the President's consideration a total of 37
qualified nominees. All the six newly appointed Sandiganbayan Associate Justices met the
requirement of nomination by the JBC under Article VIII, Section 9 of the 1987
Constitution. Hence, the appointments of respondents Musngi and Econg, as well as the
other four new Sandiganbayan Associate Justices, are valid and do not suffer from any
constitutional infirmity.
FRANCISCO I. CHAVEZ vs. JUDICIAL AND BAR COUNCIL, SEN. FRANCIS JOSEPH G.
ESCUDERO and REP. NIEL C. TUPAS, JR.
G.R. No. 202242, April 16, 2013
J. Mendoza
The rotating representation of the Legislative Branch in the Judicial and Bar Council
(JBC) has considered the existence of a bicameral Congress because the function performed
in JBC is not legislative in nature and the addition of another representative from the
legislature shall be violative of the Constitution. The three branches of government are coequals thus, when the balance among the branches is tipped, it constitutes violation of the
Constitution.
Facts:
The Judicial and Bar Council (JBC) is an independent body responsible for giving
recommendations of eligible candidates to be selected by the President for appointment to
the Judiciary. The Framers carefully worded Section 8, Article VIII of the 1987 Constitution
in this wise:
Section 8. (1) A Judicial and Bar Council is hereby created under the
supervision of the Supreme Court composed of the Chief Justice as ex
officio Chairman, the Secretary of Justice, and a representative of the
Congress as ex officio Members, a representative of the Integrated Bar,
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a professor of law, a retired Member of the Supreme Court, and a
representative of the private sector.
Pursuant to the constitutional provision that Congress is entitled to one (1) representative,
each House sent a representative to the JBC, not together, but alternately or by rotation. In
1994, two (2) representatives from Congress began sitting simultaneously in the JBC, with
each having one-half (1/2) of a vote. In 2001, the JBC En Banc decided to allow the
representatives from the Senate and the House of Representatives one full vote each.
The Supreme Court ruled in 2012 that the new composition of the JBC is in violation of the
Constitution, thus, unconstitutional. In the present motion, the respondents argue that
allowing only one representative from Congress in the JBC would lead to absurdity
considering its bicameral nature; 2] that the failure of the Framers to make the proper
adjustment when there was a shift from unilateralism to bicameralism was a plain
oversight; 3] that two representatives from Congress would not subvert the intention of the
Framers to insulate the JBC from political partisanship; and 4] that the rationale of the
Court in declaring a seven-member composition would provide a solution should there be
a stalemate is not exactly correct.
Issue:
Whether or not the new composition of the JBC can be justified considering the bicameral
nature of the Congress
Ruling:
The petition is denied.
A reading of the 1987 Constitution would reveal that several provisions were indeed
adjusted as to be in tune with the shift to bicameralism. In several provisions, the bicameral
nature of Congress was recognized and, clearly, the corresponding adjustments were made
as to how a matter would be handled and voted upon by its two Houses.
Thus, to say that the Framers simply failed to adjust Section 8, Article VIII, by sheer
inadvertence, to their decision to shift to a bicameral form of the legislature, is not
persuasive enough. Respondents cannot just lean on plain oversight to justify a conclusion
favorable to them. It is very clear that the Framers were not keen on adjusting the provision
on congressional representation in the JBC because it was not in the exercise of its primary
function – to legislate. JBC was created to support the executive power to appoint, and
Congress, as one whole body, was merely assigned a contributory non-legislative function.
In checkered contrast, there is essentially no interaction between the two Houses in their
participation in the JBC. No mechanism is required between the Senate and the House of
Representatives in the screening and nomination of judicial officers. Rather, in the creation
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of the JBC, the Framers arrived at a unique system by adding to the four (4) regular
members, three (3) representatives from the major branches of government - the Chief
Justice as ex-officio Chairman (representing the Judicial Department), the Secretary of
Justice (representing the Executive Department), and a representative of the Congress
(representing the Legislative Department). The total is seven (7), not eight. In so providing,
the Framers simply gave recognition to the Legislature, not because it was in the interest
of a certain constituency, but in reverence to it as a major branch of government.
In this regard, the scholarly dissection on the matter by retired Justice Consuelo YnaresSantiago, a former JBC consultant, is worth reiterating. Thus:
A perusal of the records of the Constitutional Commission reveals that the composition of
the JBC reflects the Commission’s desire "to have in the Council a representation for the
major elements of the community." xxx The ex-officio members of the Council consist of
representatives from the three main branches of government while the regular members
are composed of various stakeholders in the judiciary. The unmistakeable tenor of Article
VIII, Section 8(1) was to treat each ex-officio member as representing one co-equal branch
of government. xxx Thus, the JBC was designed to have seven voting members with the
three ex-officio members having equal say in the choice of judicial nominees.
FRANCISCO I. CHAVEZ vs. JUDICIAL AND BAR COUNCIL, SEN. FRANCIS JOSEPH
G. ESCUDERO AND REP. NIEL C. TUPAZ, JR.
G.R. No. 202242 | July 17, 2012 | Mendoza, J.
Congress may designate only one (1) representative to the JBC. A single vote may not be
divided into half (1/2), between two representatives of Congress, or among any of the sitting
members of the JBC for that matter.
Facts:
The case is in relation to the process of selecting the nominees for the vacant seat of
Supreme Court Chief Justice following Renato Corona’s unexpected departure.
Prompted by the clamor to rid the process of appointments to the Judiciary from political
pressure and partisan activities, the members of the Constitutional Commission saw the
need to create a separate, competent and independent body to recommend nominees to
the President. Thus, it conceived of a body representative of all the stakeholders in the
judicial appointment process and called it the Judicial and Bar Council (JBC).
In particular, Section 8, Article VIII of the Constitution states that “(1) A Judicial and Bar
Council is hereby created under the supervision of the Supreme Court composed of the
Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the
Congress as ex officio Members, a representative of the Integrated Bar, a professor of law,
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a retired Member of the Supreme Court, and a representative of the private sector. xxx” In
compliance therewith, Congress, from the moment of the creation of the JBC, designated
one representative from the Congress to sit in the JBC to act as one of the ex officio
members.
In 1994, however, the composition of the JBC was substantially altered. Instead of having
only seven (7) members, an eighth (8th) member was added to the JBC as two (2)
representatives from Congress began sitting in the JBC – one from the House of
Representatives and one from the Senate, with each having one-half (1/2) of a vote. Then,
curiously, the JBC En Banc, in separate meetings held in 2000 and 2001, decided to allow
the representatives from the Senate and the House of Representatives one full vote each.
During the existence of the case, Sen. Escudero and Cong. Tupas, Jr. (respondents)
simultaneously sat in JBC as representatives of the legislature. It is this practice that
petitioner has questioned in this petition.
ISSUE Whether JBC’s practice of having members from the Senate and the House of
Representatives making 8 instead of 7 sitting members unconstitutional. YES.
RULING
From a simple reading of the Section 8, Article VIII of the 1987 Constitution, it can readily
be discerned that the provision is clear and unambiguous. The first paragraph calls for the
creation of a JBC and places the same under the supervision of the Court. Then it goes to
its composition where the regular members are enumerated: a representative of the
Integrated Bar, a professor of law, a retired member of the Court and a representative from
the private sector. On the second part lies the crux of the present controversy. It
enumerates the ex officio or special members of the JBC composed of the Chief Justice, who
shall be its Chairman, the Secretary of Justice and “a representative of Congress.”
The use of the singular letter “a” preceding “representative of Congress” is unequivocal and
leaves no room for any other construction. It is indicative of what the members of the
Constitutional Commission had in mind, that is, Congress may designate only one (1)
representative to the JBC. Had it been the intention that more than one (1) representative
from the legislature would sit in the JBC, the Framers could have, in no uncertain terms, so
provided.
It is a well-settled principle of constitutional construction that the language employed in
the Constitution must be given their ordinary meaning except where technical terms are
employed. As much as possible, the words of the Constitution should be understood in the
sense they have in common use. Verba legis non est recedendum – from the words of a
statute there should be no departure.
Moreover, under the maxim noscitur a sociis, where a particular word or phrase is
ambiguous in itself or is equally susceptible of various meanings, its correct construction
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may be made clear and specific by considering the company of words in which it is founded
or with which it is associated.
Applying the foregoing principle to this case, it becomes apparent that the word “Congress”
used in Article VIII, Section 8(1) of the Constitution is used in its generic sense. No
particular allusion whatsoever is made on whether the Senate or the House of
Representatives is being referred to, but that, in either case, only a singular representative
may be allowed to sit in the JBC.
It is worthy to note that the seven-member composition of the JBC serves a practical
purpose, that is, to provide a solution should there be a stalemate in voting. This underlying
reason leads the Court to conclude that a single vote may not be divided into half (1/2),
between two representatives of Congress, or among any of the sitting members of the JBC
for that matter. This unsanctioned practice can possibly cause disorder and eventually
muddle the JBC’s voting process, especially in the event a tie is reached. The aforesaid
purpose would then be rendered illusory, defeating the precise mechanism which the
Constitution itself created. While it would be unreasonable to expect that the Framers
provide for every possible scenario, it is sensible to presume that they knew that an odd
composition is the best means to break a voting deadlock.
It is evident that the definition of “Congress” as a bicameral body refers to its primary
function in government – to legislate. In the passage of laws, the Constitution is explicit in
the distinction of the role of each house in the process. The same holds true in Congress’
non-legislative powers. An inter-play between the two houses is necessary in the realization
of these powers causing a vivid dichotomy that the Court cannot simply discount. This,
however, cannot be said in the case of JBC representation because no liaison between the
two houses exists in the workings of the JBC. No mechanism is required between the Senate
and the House of Representatives in the screening and nomination of judicial officers.
Hence, the term “Congress” must be taken to mean the entire legislative department. A
fortiori, a pretext of oversight cannot prevail over the more pragmatic scheme which the
Constitution laid with firmness, that is, that the JBC has a seat for a single representative
of Congress, as one of the co-equal branches of government.
Notwithstanding its finding of unconstitutionality in the current composition of the JBC,
all its prior official actions are nonetheless valid. In the interest of fair play under the
doctrine of operative facts, actions previous to the declaration of unconstitutionality are
legally recognized. They are not nullified.
CONSTITUTIONAL COMMISSIONS
THE COMMISSION OF AUDIT
Powers
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TERESITA P. DE GUZMAN, in her capacity as former General Manager;
BERNADETTE B. VELASQUEZ, in her capacity as Finance Manager; ATTY.
RODOLFO T. TABANGIN, ATTY. ANTONIO A. ESPIRITU, ATTY. MOISES P.
CATING, in their capacities as former members of the Baguio Water District
(BWD) Board of Directors; and SONIA A. DAOAS and ENGR. FELINO D. LAGMAN,
in their capacities as incumbent members of the Board of Directors, Petitioners
vs. COMMISSION ON AUDIT, CENTRAL OFFICE, represented by its Chairperson
MICHAEL G. AGUINALDO, Commissioner JUANITO G. ESPINO, JR.,
Commissioner HEIDI MENDOZA, and NILDA B. PLARAS, Director IV, Commission
Secretary, Respondents
G.R. No. 217999, July 26, 2016
Facts:
Petitioners Atty. Rodolfo T. Tabangin (Tabangin), Atty. Antonio A. Espiritu (Espiritu), Atty.
Moises P. Cating (Cating), Sonia A. Daoas (Daoas) and Engr. Felino D. Lagman (Lagman)
were members of the board of the Baguio Water District (BWD). For the month of
September 2004, they received per diems amounting to ₱33,600 each.
Following a routine audit of the BWD, the COA-Cordillera Administrative Region (COACAR) issued Audit Observation Memorandum No. 04-003 pointing out that petitioners' per
diems exceeded the limit prescribed under Sec. 3 (c) (ii) of Administrative Order No. (AO)
103, entitled: Directing The Continued Adoption of Austerity Measures in The
Government. AO 103 was issued on August 31, 2004 by then President Gloria MacapagalArroyo and limits the per diems of the members of the governing board of governmentowned and controlled corporations to ₱20,000.
Thereafter, COA-CAR issued Notice of Disallowance No. 06-026 disapproving the per
diems of the BWD directors in excess of the ₱20,000 prescribed by AO 103, or a total
aggregate amount of ₱68,000, for the month of September 2004.2 Under the Notice of
Disallowance, petitioners De Guzman and Velasquez were liable as the approving officers
for the per diems, while petitioners Lagman, Espiritu, Tabangin, Daoas and Cating were
liable as payees thereof.
Petitioners appealed the Notice of Disallowance claiming that the per diems they received
were approved by the Local Water Utilities Administration (LWUA) through
Memorandum Circular No. (MC) 004-02 issued on May 21, 2002. MC 004-02 prescribed per
diems of ₱8,400.00 for each director every meeting, not exceeding four (4) meetings in a
month.3 For the petitioners, the LWUA was authorized to lay down the per diems of the
BWD directors pursuant to Presidential Decree No. (PD) 198 or the Provincial Water
Utilities Act of 1973, as amended by Republic Act No. (RA) 9286.
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COA-CAR, however, sustained the Notice of Disallowance in its Decision No. 2009-0124 and
disposed of the petitioners' appeal.
In the presently assailed September 25, 2012 Decision, the COA-Commission Proper
similarly affirmed the Notice of Disallowance and sustained the Regional Office's decision.
Issue:
First, did the COA commit grievous error in relying on AO 103 instead of PD 198?
And second, should petitioners refund the alleged excess per diems they received in the
total amount of ₱68,000?
Ruling:
It is a basic principle in statutory construction that when faced with apparently
irreconcilable inconsistencies between two laws, the first step is to attempt to harmonize
the seemingly inconsistent laws.6 In other words, courts must first exhaust all efforts to
harmonize seemingly conflicting laws and only resort to choosing which law to apply when
harmonization is impossible.7
In the present case, petitioners posit that AO 103 and PD 198 are conflicting and so maintain
that PD 198, a law, must prevail over AO 103, a mere executive issuance. This Court,
however, need not choose between PD 198 and AO 103 as there is no irreconcilable conflict
between them.
Section 13 of PD 198, as amended by RA 9286, provides:
Sec. 13. Compensation. - Each director shall receive per diem to be determined by the Board,
for each meeting of the Board actually attended by him, but no director shall receive per
diems in any given month in excess of the equivalent of the total per diem of four meetings
in any given month.
Any per diem in excess of One hundred fifty pesos (₱150.00) shall be subject to the
approval of the Administration. In addition thereto, each director shall receive
allowances and benefits as the Board may prescribe subject to the approval of the
Administration. (emphasis supplied)
Meanwhile, Section 3(c) of AO 103 states:
SEC. 3. All NGAs, SUCs, GOCCs, GFis and OGCEs, whether exempt from the Salary
Standardization Law or not, are hereby directed to:
xxxx
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(c) For other non-full-time officials and employees, including members of their governing
boards, committees, and commissions: (i) suspend the grant of new or additional benefits,
such as but not limited to per diems, honoraria, housing and miscellaneous allowances, or
car plans; and (ii) in the case of those receiving per diems, honoraria and other fringe
benefits in excess of Twenty Thousand Pesos (₱20,000.00) per month, reduce the
combined total of said per diems, honoraria and benefits to a maximum of Twenty
Thousand Pesos (₱20,000.00) per month.(emphasis supplied)
Plainly stated, PD 198 allows the BWD to prescribe per diems greater than ₱l50 per member
for each meeting, subject to the approval of the LWUA, while AO 103 prescribes a limit on
the total amount of per diems a director can receive in a month. There is clearly no conflict
between PD 198 and AO 103, as AO 103 does not negate the power of the LWUA to approve
applications for per diems greater than ₱l50.
The conflict lies between AO 103 and MC 004-02, which prescribed a per diem of ₱8,400
for each director every meeting, not exceeding four (4) meetings in a month-way beyond
the ₱20,000 cap provided under AO 103. Thus, the question is begged: can the President
overrule MC 004-02 by issuing AO 103? The answer is a resounding yes.
Section 17, Article VII of the 1987 Constitution provides:
Section 17. The President shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed. (emphasis supplied)
The President's power of control was explained in Province of Negros Occidental v.
Commissioners, Commission on Audit8as "the power to alter or modify or set aside what a
subordinate officer had done in the performance of his duties and to substitute the
judgment of the President over that of the subordinate officer."
As the LWUA is a government-owned and controlled corporation,9 it is subject to the
control of the President and its rulings and issuances can be modified and set aside by the
President.10 MC 004-02 was, thus, effectively abrogated when President Arroyo limited the
monthly per diems to ₱20,000 in AO 103. Necessarily, directors of GOCCs can no longer
receive per diems in excess of ₱20,000 in a month after AO 103 took effect.
With that said, petitioners argue that they received the excessive per diems in good faith
and, following this Court's rulings in Blaquera v. Alcala11 and De Jesus v. Commission on
Audit,12 they should not be made to reimburse the subject amounts.
The COA refutes petitioners' claim of good faith,13 asserting that AO 103 was published in
Malaya Newspaper on September 3, 2004 and petitioners admitted receiving a copy of the
same on September 16, 2004. Yet, petitioners still accepted the fourth check for the fourth
board meeting in the amount of ₱8,400 each. For the COA, this negates petitioners' defense
of good faith.14
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Preliminarily, it bears pointing out that Section 7 of AO 103 requires the publication of the
administrative order in two (2) newspapers of general circulation for its effectivity, viz:
SEC. 7. This Administrative Order shall take effect immediately upon its publication in two
(2) newspapers of general circulation.
Clearly, the effectivity of AO 103 does not hinge upon the receipt of a copy thereof by the
affected offices. Whether or not the LWUA actually received a copy of the AO is of no
moment. AO 103 is unequivocal that it "shall take effect IMMEDIATELY upon its
publication in two (2) newspapers of general circulation." Thus, AO 103 became effective
upon its publication on September 3, 2004. This means that AO 103 was already effective
when the third and fourth checks were issued on September 15 and 16, 2004. As.
correctly pointed out by the COA, petitioners' claim of good faith is, therefore, unfounded.
Further, the cases cited by petitioners in support of their position are inapplicable.
Consider:
In Blaquera, the disallowed amounts were released prior to the issuance of AO 29 which
regulated the release of the incentive awards. Meanwhile, in the instant case, AO 103 was
issued after the effectivity of PD 198 and MC 004-02. Thus, the more recent Casal v.
Commission on Audit15is more apt where the Court stressed that:
First, while the incentive benefits in Blaquera were for CY 1992 and paid prior to the
issuance of A.O. 29 on January 19, 1993, the incentive awards subject of the instant
petition were released in December of 1993. When, therefore, the heads of departments
and agencies in Blaquera erroneously authorized the incentive benefits to the
employee, they did not then have the benefit of the categorical pronouncement of
the President in A.O. 29 x x x. (emphasis supplied)
Plainly, in the case at bar, the payment of the per diems was uncalled for inasmuch as AO
103 was issued after and superseded MC 004-02.
In like manner, our ruling in De Jesus relied upon by petitioners finds no application in the
present case. The main issue in De Jesus was whether in the prohibition under PD 198 that
"[ n Jo director shall receive other compensation for services to the district," the term
"compensation" also includes "Representation and Transportation Allowance, bonuses and
other benefits disallowed therein." In clarifying, the Court held that petitioners cannot be
made accountable given the previously unclarified ambiguity in the decree. We held:
At the time petitioners received the additional allowances and bonuses, the Court had not
yet decided Baybay Water District. Petitioners had no knowledge that such payment
was without legal basis.Thus, being in good faith, petitioners need not refund the
allowances and bonuses they received but disallowed by the COA.16 (emphasis supplied)
Such is not the case here where AO 103 categorically and clearly ordered the discontinuance
of per diems in excess of ₱20,000. There is no room for interpretation and so petitioners'
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failure to adhere to AO 103 is unwarranted and cannot be countenanced. Petitioners BWD
directors each received ₱33,600 for the month of September 2004. Petitioners must,
therefore, reimburse the amount they received in excess of the allowed ₱20,000, that is,
₱13,600 each or the aggregate amount of ₱68,000.
DR. WENIFREDO T. OÑATE, Petitioner, vs. COMMISSION ON AUDIT, Respondent.
G.R. No. 213660, July 5, 2016
Facts:
Sometime in June 2009, a retainership contract was entered into by and between Atty. Alex
A. Arejola and Camarines Norte State College (CNSC), as represented by its President, Dr.
Oñate. Pursuant thereto, Atty. Arejola was engaged to act as the legal counsel of CNSC for
a period of one (1) year, renewable every year, at a monthly retainer fee of Pl0,000.00 net
of tax and appearance fee of P500.00 and P1,500.00 for every hearing attended within and
outside, respectively, "of Camarines Norte.
In a letter dated July 8, 2010, the Office of the Solicitor General (OSG) granted the request
for deputation of Atty. Arejola as special attorney of the OSG authorized to represent CNSC
and/or its officials and employees in all civil, criminal and administrative cases, but subject
to the existing rules and regulations of the Department of Budget and Management (DBM)
and respondent COA. However, in COA Legal Retainer Review (LRR) No. 2010-1586 dated
December 2, 2010, Dr. Oñate's request for written concurrence was denied for violation of
COA Circular No. 86-2557 dated April 2, 1986, as amended by COA Circular No. 95-0118
dated December 4, 1995, which was espoused in Polloso v. Hon. Gangan. Accordingly, on
February 15, 2011, the COA issued a Notice of Disallowance, which found the following
persons liable for the disallowed amount of P184,649.25:
Atty. Alex A. Arejola - Claimant/Legal Counsel
Arthur Z. Elizes - Acountant III
Madelon B. Lee - Acountant III
Yodelito Icaro - MAA III
Ela Regondola - VP for Admin
Emma Sumaway - Budget Officer
Yolanda Gahol - Budget Officer
Dr. Wenifredo T. Oñate – College President
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Dr. Oñate moved to reconsider the decision, but the COA Commissioners affirmed the
questioned LRR.
Issue:
Whether the COA was correct in issuing the Notice of Disallowance.
Ruling:
Camarines Norte State College was created by Republic Act No. 7352. Under Executive
Order (E. 0.) No. 292, or the Administrative Code of 1987, a state college is classified as a
chartered institution. As such, only the OSG is authorized to represent CNSC and its
officials "and agents in any litigation, proceeding, investigation or matter requiring the
services of lawyers.
COA Circular No. 95-011 stresses that public funds shall not be utilized for the payment of
services of a private legal counsel or law firm to represent government agencies in court or
to render legal services for them. Despite this, the same circular provides that in the event
that such legal services cannot be avoided or is justified under extraordinary or exceptional
circumstances, the written conformity and acquiescence of the OSG or the Office of the
Government Corporate Counsel (OGCC), as the case may be, and the written concurrence
of the COA shall first be secured before the hiring or employment of a private lawyer or
law firm. The prohibition covers the hiring of private lawyers to render any form of legal
service - whether or not the legal services to be performed involve an actual legal
controversy or court litigation. The purpose is to curtail the unauthorized and unnecessary
disbursement of public funds to private lawyers for services rendered to the government,
which is in line with the COA's constitutional mandate to 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.
The Court has invariably sustained the statutory authority of the OSG and the OGCC as
well as the necessity of COA concurrence in the cases of government-owned and/or
controlled corporations, local government units, and even a state college like the CNSC.
We see no legal justification to deviate from the settled jurisprudence. Here, the COA
noted, and Dr. Oñate never disputed, that while the OSG authorization was obtained the
CNSC belatedly requested for the COA's concurrence on May 27, 2010, which is less than a
week prior to the expiration of the contract on June 1, 2010. The rule is absolute; partial
compliance or honest mistake due to ignorance of the law is not and can never be a valid
defense.
Nonetheless, petitioner must not be entirely accountable for the refund of the disallowed
amount. Evidence on record indubitably shows that he was properly armed with the
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necessary CNSC Board approval before he secured the legal services of Atty. Arejola.
Consistent with COA Circular No. 86-255, as amended, in relation to Section 103 of
Presidential Decree No. 1445 (Government Auditing Code of the Philippines) as well as
Section 52, Chapter 9, Title I-B, Book V and Section 43, Chapter V, Book VI of the
Administrative Code, the board of trustees who approved Board Referendum No. 2, s. 2009,
which granted authority to Dr. Oñate to enter into a retainer's contract with Atty. Arejola
but did not require the prior conformity of the OSG and written concurrence of the COA,
should also be held liable for the· unauthorized disbursement of public funds. Indeed,
when a government entity engages the legal services of private counsel or law firm, it must
do so with the necessary authorization required by law; otherwise, its officials bind
themselves to be personally liable for compensating such legal services. Moreover, while
the private counsel or law firm, in this case Atty. Arejola, is likewise responsible for
receiving the subject amount, such liability is without prejudice to the filing an action, if
necessary, against the parties involved in the unlawful release of public funds.
TECHNICAL EDUCATION AND SKILLS DEVELOPMENT AUTHORITY v. THE
COMMISSION ON AUDIT CHAIRPERSON MA. GRACIA PULIDO TAN,
COMMISSIONER JUANITO G. ESPINO, JR. AND COMMISSIONER HEIDI L.
MENDOZA
G.R. No. 204869. March 11, 2014
J. Carpio
No money shall be paid out of the Treasury except in pursuance of an appropriation
made by law. The Constitution vests COA, as guardian of public funds, with enough
latitude to determine, prevent and disallow irregular, unnecessary, excessive, extravagant
or unconscionable expenditures of government funds. The COA is generally accorded
complete discretion in the exercise of its constitutional duty and the Court generally
sustains its decisions in recognition of its expertise in the laws it is entrusted to enforce.
Facts:
Upon post audit, the TESDA audit team leader discovered that for the calendar years 20042007, TESDA paid Extraordinary and Miscellaneous Expenses (EME) twice each year to its
officials from two sources: (1) the General Fund for locally-funded projects, and (2) the
Technical Education and Skills Development Project (TESDP) Fund for the foreign-assisted
projects. Because of this, the audit team issued Notice of Disallowance disallowing the
payment of EME for being in excess of the amount allowed in the 2004-2007 General
Appropriation Acts (GAAs) and for paying such to TESDA officials whose positions were
not of equivalent ranks as authorized by the DBM.
TESDA, through its then Director-General Augusto Boboy Syjuco, Jr., filed an Appeal
Memorandum arguing that the 2004-2007 GAAs allowed the grant of EME provided the
legal ceiling was not exceeded for each fund. According to TESDA, the General Fund and
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the TESDP Fund are distinct from each other, and TESDA officials who were designated as
project officers concurrently with their regular functions were entitled to separate EME
from both funds. The COA Cluster Director, Cluster VII, denied the appeal for lack of merit.
TESDA, through its Director-General, filed a petition for review with COA. In its Decision
dated 15 November 2012, COA denied TESDA’s petition for lack of merit. The COA
adopted the findings of both the TESDA audit team and the COA Cluster Director that the
grant of EME exceeded the allowable limit in the 2004-2007 GAAs. The COA emphasized
that the provision in the 2004-2007 GAAs that granted EME clearly provided a ceiling for
its grant. Accordingly, the COA ruled that the failure of the TESDA officials to adhere to
the 2004-2007 GAAs negated their claim of good faith.
Issue:
Whether or not the COA gravely erred in disallowing the payments made by TESDA to its
officials of their EME from both General Fund and TESDP Fund
Ruling:
The petition is partly meritorious.
The Court did not find any grave abuse of discretion when COA disallowed the
disbursement of EME to TESDA officials for being excessive and unauthorized by law,
specifically the 2004-2007 GAAs. The GAA provisions are clear that the EME shall not
exceed the amounts fixed in the GAA. The GAA provisions are also clear that only the
officials named in the GAA, the officers of equivalent rank as may be authorized by the
DBM, and the offices under them are entitled to claim EME not exceeding the amount
provided in the GAA. The COA merely complied with its mandate when it disallowed the
EME that were reimbursed to officers who were not entitled to the EME, or who received
EME in excess of the allowable amount.
Second, the TESDA insists on its interpretation justifying its payment of EME out of the
TESDP Fund. It argues that the 2004-2007 GAAs did not prohibit its officials from receiving
additional EME chargeable against an authorized funding, the TESDP Fund in this case, for
another office to which they have been designated. The Court did not agree. TESDA is an
instrumentality of the government established under Republic Act No. 7796 or the TESDA
Act of 1994. Under Section 33 of the TESDA Act, the TESDA budget for the implementation
of the Act is included in the annual GAA; hence, the TESDP Fund, being sourced from the
Treasury, are funds belonging to the government, or any of its departments, in the hands
of public officials. The Constitution provides, “No money shall be paid out of the Treasury
except in pursuance of an appropriation made by law. The State Audit Code, which
prescribes the guidelines in disbursing public funds, reiterates this important
Constitutional provision that there should be an appropriation law or other statutes
specifically authorizing payment out of any public funds. his case. TESDA failed to point
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out the law specifically authorizing it to grant additional reimbursement for EME from the
TESDP Fund, contrary to the explicit requirement in the Constitution and the law.
Lastly, on the issue whether the TESDA officials should refund the excess EME granted to
them, the Court applied the ruling in the case Casal v. COA where the Court held that the
approving officials are liable for the refund of the incentive award due to their patent
disregard of the law of and the directives of COA. Accordingly, the Director-General's
blatant violation of the clear provisions of the Constitution, the 2004-2007 GAAs and the
COA circulars is equivalent to gross negligence amounting to bad faith. He is required to
refund the EME he received from the TESDP Fund for himself. As for the TESDA officials
who had no participation in the approval of the excessive EME, they acted in good faith
since they had no hand in the approval of the unauthorized EME.
DENNIS A.B. FUNA v. MANILA ECONOMIC AND CULTURAL OFFICE AND COA
G.R. No. 193462. February 4, 2014
J. Perez
Under Section 2(1) of Article IX-D of the Constitution, the COA was vested with the
“power, authority and duty” to “examine, audit and settle” the “accounts” of the following
entities: XXX (5).Non-governmental entities receiving subsidy or equity, directly or
indirectly, from or through the government). Complementing this power is Section
29(1) of the Audit Code, which grants the COA visitorial authority over the following nongovernmental entities: XXX (2)Non-governmental entities “required to pay levy or
government share”; XXX
Facts:
The aftermath of the Chinese civil war left the country of China with two (2)
governments- on one hand is the communist People’s Republic of China which controls
the mainland territories, and on the other hand is the nationalist Republic of China (ROC)
which controls the island of Taiwan. The Philippines in 1975 established their commitment
to the One China policy of the PROC, however, it did not preclude the country from
keeping unofficial relations with ROC. As a consequence of such relation, MECO was
organized as a non-stock, non-profit corporation under the Corporation Code. It became
an entity entrusted in fostering friendly and unofficial relations with the people of Taiwan,
particularly in the areas of trade, economic cooperation. etc. To enable it to carry out such
responsibility, the MECO was authorized by the government to perform certain “consular
and other functions” that relates to the promotion, protection and facilitation of
Philippine interests in Taiwan.
Petitioner sent a letter to the COA requesting for a copy of the latest financial and audit
report of the MECO invoking, for that purpose, his “constitutional right to information
on matters of public concern.” The petitioner made the request on the belief that the
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MECO, being under the operational supervision of the Department of Trade and Industry
(DTI), is a government owned and controlled corporation (GOCC) and thus subject to
the audit jurisdiction of the COA. MECO prays for the dismissal of the mandamus petition
on procedural and substantial grounds. On procedure, the MECO argues that the
mandamus petition was prematurely filed since there was no refusal yet on its part and on
COA. On the merits, the MECO denies the petitioner’s claim that it is a GOCC or a
government instrumentality. While performing public functions, the MECO maintains that
it is not owned or controlled by the government, and its funds are private funds. For its
part, COA maintains that the MECO is a non-governmental entity however despite being
a non-governmental entity, the MECO may still be audited with respect to the “verification
fees” for overseas employment documents that it collects from Taiwanese employers on
behalf of the DOLE.
Issue:
Whether the COA is, under prevailing law, mandated to audit the accounts of the MECO.
Conversely, are the accounts of the MECO subject to the audit jurisdiction of the COA?
Ruling:
Preliminary Issues on Mootness and Locus Standi
The COA claims that by issuing Office Order No. 2011-698, it had already conceded its
jurisdiction over the accounts of the MECO and so fulfilled the objective of the instant
petition. The COA thus urges that the instant petition be dismissed for being moot and
academic. The Court did not agree. Allowing the petition for mandamus is within the
exception of the moot and academic principle. The Court believes that the mandamus
petition was able to craft substantial issues presupposing the commission of a grave
violation of the Constitution and involving paramount public interest, which need to be
resolved for the formulation of controlling principles for the education of the bench, bar
and the public in general. On the issue of locus standi, the Court ruled that rule that the
instant petition raises issues of transcendental importance, involved as they are with
the performance of a constitutional duty, allegedly neglected, by the COA. Hence, the
petitioner, as a concerned citizen, has the requisite legal standing to file the instant
mandamus petition
The MECO Is Not a GOCC or Government Instrumentality
To qualify as GOCC, three requisites are needed- (1) the agency must be organized as a
stock or non-stock corporation, (2) vested with functions relating to public needs whether
governmental or proprietary in nature, and (3) owned by the Government of the
Republic of the Philippines directly or through its instrumentalities either wholly or,
where applicable as in the case of stock corporations, to the extent of at least a majority
of its outstanding capital stock.
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In this case, there is not much dispute that the MECO possesses the first and second
attributes. It is the third attribute, which the MECO lacks. The organization of the MECO
as a non-stock corporation cannot at all be denied. e fact of the incorporation of the
MECO under the Corporation Code is key. The MECO was correct in postulating that, as
a corporation organized under the Corporation Code, it is governed by the appropriate
provisions of the said code, its articles of incorporation and its by-laws. It is the by-laws
of MECO that stipulates that its directors are elected by its members; its officers are elected
by its directors; and its members, other than the original incorporators, are admitted by
way of a unanimous board resolution. Indeed, none of the members, officers or board of
directors of the MECO, from its incorporation up to the present day, were established as
government appointees or public officers designated by reason of their office.
The MECO Is Not a Government Instrumentality; It Is a Sui Generis Entity
Indeed, from hindsight, it is clear that the MECO is uniquely situated as compared with
other private corporations. From its over-reaching corporate objectives, its special duty
and authority to exercise certain consular functions, up to the oversight by the
executive department over its operations—all the while maintaining its legal status as a
non-governmental entity—the MECO is, for all intents and purposes, sui generis.
Certain Accounts of the MECO May Be Audited By the COA
The Court held that the accounts of the MECO pertaining to its collection of “verification
fees” is subject to the audit jurisdiction of the COA. However, upon careful evaluation of
the information made available by the records vis-à-vis the spirit and the letter of the laws
and executive issuances applicable, the Court finds that the accounts of the MECO
pertaining to the fees it was authorized to collect under Section 2(6) of EO No. 15, s. 2001,
are likewise subject to the audit jurisdiction of the COA. Such fees under Section 2(6) of
EO No. 15, s. 2001 are “consular fees,” or fees it collects from the exercise of its delegated
consular functions.
Conclusion
The MECO is not a GOCC or government instrumentality. It is a sui generis private entity
especially entrusted by the government with the facilitation of unofficial relations with the
people in Taiwan without jeopardizing the country’s faithful commitment to the One China
policy of the PROC. However, despite its non-governmental character, the MECO handles
government funds in the form of the “verification fees” it collects on behalf of the DOLE
and the “consular fees” it collects under Section 2(6) of EO No. 15, s. 2001. Hence, under
existing laws, the accounts of the MECO pertaining to its collection of such “verification
fees” and “consular fees” should be audited by the COA.
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ARNALDO M. ESPINAS, LILLIAN N. ASPRER, and ELEANORA R. DE JESUS, vs.
COMMISSION ON AUDIT
G.R. No. 198271, April 1, 2014, J. Perlas-Bernabe
Since the Extraordinary and Miscellaneous Expenses (EME) of Government-Owned
and Controlled Corporations (GOCCs), Government Financial Institutions (GFIs) and their
subsidiaries, are, pursuant to law, allocated by their own internal governing boards, as
opposed to the EME of National Government Agencies (NGAs) which are appropriated in the
annual General Appropriations Act (GAA) duly enacted by Congress, there is a perceivable
rational impetus for the Commission on Audit (CoA) to impose nuanced control measures to
check if the EME disbursements of GOCCs, GFIs and their subsidiaries constitute irregular,
unnecessary, excessive, extravagant, or unconscionable government expenditures.
Facts:
The Local Water Utilities Administration (LWUA) is a government-owned and
controlled corporation (GOCC) created pursuant to Presidential Decree No. (PD) 198, as
amended, otherwise known as the “Provincial Water Utilities Act of 1973.”
Petitioners are department managers of the LWUA who, together with 28 other
LWUA officials, sought reimbursement of their extraordinary and miscellaneous expenses
for the period January to December 2006. According to petitioners, the reimbursement
claims were within the ceiling provided under the LWUA Calendar Year 2006 Corporate
Operating Budget approved by the LWUA Board of Trustees and the Department of Budget
and Management.
The Office of the CoA Auditor, through Priscilla DG. Cruz, the Supervising Auditor
assigned to the LWUA (SA Cruz), issued Audit Observation Memorandum (AOM) No.
AOM-2006-27, revealing that the 31 LWUA officials were able to reimburse P16,900,705.69
in EME, including expenses for official entertainment, service awards, gifts and plaques,
membership fees, and seminars/conferences. Out of the said amount, P13,110,998.26 was
reimbursed only through an attached certification attesting to their claimed incurrence
(“certification”). According to the AOM, this violated CoA Circular No. 200601 dated
January 3, 2006 (CoA Circular No. 2006-01), which pertinently states that the “claim for
reimbursement of such expenses shall be supported by receipts and/or other documents
evidencing reimbursements.”
During the CoA Exit Conference held sometime in April 2007, LWUA management
officials, including herein petitioners, manifested that they were unaware of the existence
of CoA Circular No. 2006-01, particularly during the period January to December 2006.
After the post-audit of the LWUA EME account for the same period, SA Cruz issued
Notice of Disallowance dated July 21, 2009, disallowing the EME reimbursement claims of
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the 31 LWUA officials, in the total amount of P13,110,998.26, for the reason that they “were
not supported by receipts and/or other documents evidencing disbursements.
Pursuant to the CoA’s 2009 Revised Rules of Procedure, petitioners appealed the
notice of disallowance to the CoA Cluster Director, contending that the “certification” they
attached in support of their EME reimbursement claims was originally allowed under
Section 397 of the Government Accounting and Auditing Manual, Volume I (GAAM-Vol.
I), which provides that in lieu of receipts and/or other documents evidencing
disbursement, a certification executed by the official concerned that the expenses sought
to be reimbursed have been incurred is allowed.
Further, petitioners alleged that CoA Circular No. 2006-01 is violative of the equal
protection clause since officials of GOCCs, such as the LWUA officials, are, among others,
prohibited by virtue of the same issuance from supporting their reimbursement claims with
“certifications,” unlike officials of the national government agencies (NGAs) who have been
so permitted. To this end, petitioners argued that the employees of NGAs and GOCCs are
similarly situated and that there exists no substantial distinction between them.
Finally, petitioners submitted that CoA Circular No. 2006-01 was not duly published
in the Official Gazette, or in a newspaper of general circulation and thus, unenforceable.
Petitioners’ appeal was denied by CoA Cluster Director which was later on affirmed
by CoA.
Issues:
1. Whether or not the certification that expenses were incurred is sufficient proof
to warrant reimbursement of the said expenses.
2. Whether CoA Circular No. 2006-01 is violative of the equal protection clause.
Ruling:
1. No. They are not sufficient.
The Supreme Court concurs with the CoA’s conclusion that the “certification”
submitted by petitioners cannot be properly considered as a supporting document within
the purview of Item III(3) of CoA Circular No. 2006-01 which pertinently states that a “claim
for reimbursement of [EME] expenses shall be supported by receipts and/or other
documents evidencing disbursements.” Similar to the word “receipts,” the “other
documents” pertained to under the above-stated provision is qualified by the phrase
“evidencing disbursements.”
However, an examination of the sample “certification” attached to the petition does
not, by any means, fit this description. The signatory therein merely certifies that he/she
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has spent, within a particular month, a certain amount for meetings, seminars, conferences,
official entertainment, public relations, and the like, and that the certified amount is within
the ceiling authorized under the LWUA corporate budget. Accordingly, since petitioners’
reimbursement claims were solely supported by this “certification,” the CoA properly
disallowed said claims for failure to comply with CoA Circular No. 2006-01.
2. No. CoA Circular No. 2006-01 is not violative of the equal protection clause.
The Supreme Court upholds the CoA’s finding that there exists a substantial
distinction between officials of NGAs and the officials of GOCCs, GFIs and their
subsidiaries which justify the peculiarity in regulation. Since the EME of GOCCs, GFIs and
their subsidiaries, are, pursuant to law, allocated by their own internal governing boards,
as opposed to the EME of NGAs which are appropriated in the annual GAA duly enacted
by Congress, there is a perceivable rational impetus for the CoA to impose nuanced control
measures to check if the EME disbursements of GOCCs, GFIs and their subsidiaries
constitute irregular, unnecessary, excessive, extravagant, or unconscionable government
expenditures. Case in point is the LWUA Board of Trustees which, pursuant to Section 69
of PD 198, as amended, is “authorized to appropriate out of any funds of the
Administration, such amounts as it may deem necessary for the operational and other
expenses of the Administration including the purchase of necessary equipment.” Indeed,
the Court recognizes that denying GOCCs, GFIs and their subsidiaries the benefit of
submitting a secondary-alternate document in support of an EME reimbursement, such
as the “certification” discussed herein, is a CoA policy intended to address the disparity in
EME disbursement autonomy.
THE LAW FIRM OF LAGUESMA MAGSALIN CONSULTA AND GASTARDO vs. THE
COMMISSION ON AUDIT AND/OR REYNALDO A. VILLAR AND JUANITO G.
ESPINO, JR. IN THEIR CAPACITIES AS CHAIRMAN AND COMMISSIONER,
RESPECTIVELY
G.R. No. 185544, January 13, 2015, J. Leonen
To fill the gap created by the amendment of COA Circular No. 86-255, respondents
correctly held that the officials of CDC who violated the provisions of Circular No. 98-002 and
Circular No. 9 should be personally liable to pay the legal fees of Laguesma, as previously
provided for in Circular No. 86-255.
This finds support in Sec. 103 of the Government Auditing Code of the Philippines,
which states that “expenditures of government funds or uses of government property in
violation of law or regulations shall be a personal liability of the official or employee found to
be directly responsible therefore”.
This court has also previously held in Gumaru vs. Quirino State College that “the fee
of the lawyer who rendered legal service to the government in lieu of the OSG or the OGCC is
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the personal liability of the government official who hired his services without the prior
written conformity of the OSG or the OGCC, as the case may be.”
Facts:
In 2001, officers of Clark Development Corporation (CDC), a GOCC, approached the
law firm of Laguesma Magsalin Consulta and Gastardo for its possible assistance in
handling of CDC’s labor cases. CDC sought from the Office of the Government Corporate
Counsel (OGCC) its approval for the engagement of the Laguesma Firm as external counsel.
Initially, the OGCC denied this request but later on it approved the same. In the meantime,
Laguesma Magsalin Consulta and Gastardo commenced rendering legal services to CDC.
CDC assured Laguesma that it was undertaking the authorization and clearance from the
OGCC or the concurrence of the COA of the retainership contract.
In July 2005, CDC requested COA for concurrence of the retainership contract it
exe-cuted with Laguesma Magsalin Consulta and Gastardo. State Auditor IV Punzalan
informed CDC that its request for clearance could not be acted upon until the OGCC
approves the retainership contract with finality. In December 2006, OGCC sent an
indorsement categorically denying the retention of Laguesma as external counsel of CDC.
For its part, COA issued the assailed decision that states that CDC Audit Circular No. 98002 and OP Memorandum Circular No. 9 when it engaged the legal services of Laguesma
Magsalin Consulta and Gastardo without the final approval and written concurrence of the
COA.
After the filing of motions for reconsideration, Laguesma raised the foregoing
matter thru this instant petition for certiorari.
Issue:
Whether or not COA’s contentions in denying the request of CDC are in accordance
with law.
Ruling:
YES, COA’s denial of the subject request was pursuant to pertinent auditing laws.
The precursory circular to COA Circular No. 98-002 which is “COA Circular No. 86255… previously stated that:
“Accordingly, it is hereby directed that, henceforth, the payment out of public
funds of retainer fees to private law practitioners who are so hired or employed
without the prior written conformity and acquiescence of the [SOLGEN] or the
[OGCC], as the case may be, as well as the written concurrence of the [COA] shall
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be disallowed in audit and the same shall be a personal liability of the officials
concerned.”
However, when COA Circular No. 86-255 was amended by COA Circular No. 98-002
on June 9, 1998, it failed to retain the liability of the officials who violated the circular. This
gap in the law paves the way for both the erring officials of the GOCCs to disclaim any
responsibility for the liabilities owing to private practitioners.
It cannot be denied that Laguesma rendered legal services to CDC. It assisted the
corporation in litigating numerous labor cases during the period of its engagement. It
would be an injustice for Laguesma not to be compensated for services rendered even if the
engagement was unauthorized.
The fulfillment of the requirements of the rules and regulations was CDC’s responsibility, not Laguesma. The Board of Directors, by its irresponsible actions, unjustly procured
for themselves petitioner’s legal services without compensation.
To fill the gap created by the amendment of COA Circular No. 86-255, respondents
correctly held that the officials of CDC who violated the provisions of Circular No. 98-002
and Circular No. 9 should be personally liable to pay the legal fees of Laguesma, as
previously provided for in Circular No. 86-255.
This finds support in Sec. 103 of the Government Auditing Code of the Philippines,
which states that “[e]xpenditures of government funds or uses of government property in
violation of law or regulations shall be a personal liability of the official or employee found to
be directly responsible therefore”.
This court has also previously held in Gumaru vs. Quirino State College that “the fee
of the lawyer who rendered legal service to the government in lieu of the OSG or the OGCC is
the personal liability of the government official who hired his services without the prior
written conformity of the OSG or the OGCC, as the case may be.”
ZAMBOANGA CITY WATER DISTRICT, represented by its General Manager,
Leonardo Rey D. Vasquez, ZAMBOANGA CITY WATER DISTRICT-EMPLOYEES
UNION, represented by its President, Noel A. Fabian, LOPE IRINGAN, ALEJO S.
ROJAS, JR., EDWIN N. MAKASIAR, RODOLFO CARTAGENA, ROBERTO R.
MENDOZA, GREGORIO R. MOLINA, ARNULFO A. ALFONSO, LUCENA R. BUSCAS,
LUIS A. WEE, LEILA M. MONTEJO, FELECITA G. REBOLLOS, ERIC A. DELGADO,
NORMA L. VILLAFRANCA, ABNER C. PADUA, SATURNINO M. ALVIAR, FELIPE S.
SALCEDO, JULIUS P. CARPITANOS, HANLEY ALBANA, JOHNY D. DEMAYO,
ARCHILES A. BRAULIO, ELIZA MAY R. BRAULIO, TEDILITO R. SARMIENTO,
SUSANA C. BONGHANOY, LUZ A. BIADO, ERIC V. SALARITAN, RYAN ED C.
ESTRADA, NOEL MASA KAWAGUCHI, TEOTIMO REYES, JR., EUGENE DOMINGO,
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and ALEX ACOSTA, represented by LUIS A. WEE, Petitioners, vs. COMMISSION
ON AUDIT, Respondent.
January 26, 2016, G.R. No. 213472
Facts:
Petitioner Zamboanga City Water District (ZCWD) is a govemment-owned and/and
controlled corporation (GOCC) which was created pursuant to the provisions of
Presidential Decree (P.D.) No. 198 or the Provincial Water Utilities Act of 1973 (PWUA), as
amended by Republic Act (R.A.) No. 9286.
On January 9, 2007, Catalino S. Genel, Audit Team Leader for ZCWD, Zamboanga City,
issued Notices of Disallowance (ND) for ZCWD's various payments.
The NDs covered the disbursements made during the tenure of then General Manager
Juanita L. Bucoy (GM Bucoy).7 On April 12, 2007, ZCWD filed its omnibus appeal before
the LAO.
On October 14, 2008, the LAO rendered a decision upholding all the NDs in the aggregate
amount of P27,293,621.40.
Undaunted, ZCWD appealed before the COA.
On October 28, 2010, the COA rendered the assailed decision affirming the LAO ruling.
Ruling:
Limited power of the BOD to fix the salary of the GM
ZCWD's contention that, pursuant to Section 23 of P.D. No. 198, as amended by R.A. No.
9286, the BOD has the discretion to fix the compensation of the GM is misplaced. As held
in Mendoza v. COA16 (Mendoza), unless specifically exempted by its charter, GOCCs are
covered by the provisions of the SSL. The Court in Mendoza recognized the power of the
BOD to fix the compensation of the GM but limited the same to the extent that the rates
approved must be in accordance with the position classification system under the SSL. Here
in this case, the salary increase of GM Bucoy, including the corresponding increase in her
monetized leave credits, was properly disallowed for being in excess of the amounts
allowed under the SSL.
Payment of RATA and RA based on the rates under LOI No. 97 is improper
The Court agrees with ZCWD that LWDs are within the coverage of LOI No. 97.
Nevertheless, the payment of RA TA and RA in favor of the GM and Assistant GMs of ZCWD
based on the rates under LOI No. 97 is inappropriate. In Ambros v. COA (Ambros),17 the
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Court stated that nonintegrated benefits, such as the RAT A, are allowed to be continued
only for (1) for incumbents of positions as of July 1, 1989; and (2) those who were actually
receiving the said allowances as of the said date, in consonance with Section 1218 of the SSL.
In the case at bench, GM Bucoy and the assistant GMs of ZCWD, although incumbent as
of July 1, 1989, were not receiving RATA, a non-integrated benefit, based on the rates
provided in LOI No. 97. Consequently, they are no longer entitled to enjoy the RATA
benefit given by LOI No. 97. In Philippine Ports Authority v. COA (PPA),19 the Court
explained:
Now, under the second sentence of Section 12, first paragraph, the RATA enjoyed by these
PPA officials shall continue to be authorized only if they are "being received by incumbents
only as of July 1, 1989." RA 6758 has therefore, to this extent, amended LOI No. 97. By
limiting the benefit of the RATA granted by LOI No. 97 to incumbents, Congress has
manifested its intent to gradually phase out this RATA privilege under LOI No. 97 without
upsetting its policy of non-diminution of pay.
xxxx
We have earlier classified the petitioners officials into two. The first category is composed
of those who, pursuant to LOI No. 97 and Memorandum Circular No. 57-87 dated October
1, 1987, were granted and were receiving RATA equivalent to 40% salary prior to July 1, 1989,
the effectivity of RA 6758. The second category consists of those who as of July 1, 1989 were
not receiving the RATA privilege under LOI No. 97. These officials were given RATA after
July 1, 1989, pursuant to Memorandum Circular No. 36-89 dated October 23, 1989. Said
circular, however, provided for a retroactive grant of RATA from June 1, 1989. Under
Memorandum Circular No. 46-90 dated November 14, 1990, the RATA of this second set of
officials was increased from 20% to 40% of standardized salary.
Applying the provisions of Section 12 to the petitioners' case, we rule that only the first
category officials are entitled to the continued RATA benefit under LOI No. 97. The first
category officials were incumbents as of July 1, 1989 and more importantly, they were
receiving the RATA provided by LOI No. 97 as of July 1, 1989.
While the second category officials were incumbents as of July 1, 1989, they were not
receiving RATA as of July 1, 1989.
True, LOI No. 97 provides that these second category officials may likewise be given RATA
not exceeding 40% basic salary, but this provision did not create a vested right in their
favor. xxx The grant of RATA under LOI No. 97 to these officials was still discretionary on
the part of the PP A management. It was not absolute nor was it unconditional.
Unfortunately, when the PPA management finally authorized the giving of RATA to these
second category officials, such was no longer allowed under RA 6758.
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Similarly, the ZCWD officials were not entitled to the benefit of RATA based on the rates
provided in LOI No. 97. They fail to meet the criteria set in Ambros because although they
were incumbents as of July 1, 1989, they were not receiving their RATA based on the rates
under LOI No. 97 on the said date.
ZCWD employees not entitled to back payment of COLA and AA
Pursuant to Section 12 of the SSL, employee benefits, save for some exceptions, are deemed
integrated into the salary. In Maritime Industry Authority v. COA (MIA),21 the Court
emphasized that the general rule was that all allowances were deemed included in the
standardized salary and the issuance of the DBM was required only if additional nonintegrated allowances would be identified. In accordance with the MIA ruling, the COLA
and AA were already deemed integrated in the standardized salary.
Further, ZCWD cannot rely on the case of PPA Employees. As clarified by MIA, the PPA
Employees ruling was only limited to distinguishing the benefits that may be received by
government employees who were hired before and after the effectivity of the SSL, to wit:
Petitioner Maritime Industry Authority's reliance on Philippine Ports Authority Employees
Hired After July 1, 1989 v. Commission on Audit is misplaced. As this court clarified in
Napocor Employees Consolidated Union v. National Power Corporation, the ruling in
Philippine Ports Authority Employees Hired After July 1, 1989 was limited to distinguishing
the benefits that may be received by government employees who were hired before and
after the effectivity of Republic Act No. 6758. Thus:
[t]he Court has, to be sure, taken stock of its recent ruling in Philippine Ports Authority
(PPA) Employees Hired After July 1, 1989 vs. Commission on Audit. Sadly, however, our
pronouncement therein is not on all fours applicable owing to the differing factual milieu.
There, the Commission on Audit allowed the payment of back cost of living allowance
(COLA) and amelioration allowance previously withheld from PP A employees pursuant to
the heretofore ineffective DBM - CCC No. 10, but limited the back payment only to
incumbents as of July 1, 1989 who were already then receiving both allowances. COA
considered the COLA and amelioration allowance of PPA employees as "not integrated"
within the purview of the second sentence of Section 12 of Rep. Act No. 6758, which,
according to COA confines the payment of "not integrated" benefits only to July 1, 1989
incumbents already enjoying the allowances.
In setting aside COA's ruling, we held in PPA Employees that there was no basis to use the
elements of incumbency and prior receipt as standards to discriminate against the
petitioners therein. For, DBM-CCC No. 10, upon which the incumbency and prior receipt
requirements are contextually predicated, was in legal limbo from July 1, 1989 (effective
date of the unpublished DBM-CCC No. 10) to March 16, 1999 (date of effectivity of the
heretofore unpublished DBM circular). And being in legal limbo, the benefits otherwise
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covered by the circular, if properly published, were likewise in legal limbo as they cannot
be classified either as effectively integrated or not integrated benefits.
Similar to what was stated in Napocor Employees Consolidated Union, the "element of
discrimination between incumbents as of July 1, 1989 and those joining the force thereafter
is not obtaining in this case." The second sentence of the first paragraph of Section 12,
Republic Act No. 6758 is not in issue.
In the case at bench, the incumbency of the employees was not contested, rather, the back
payment of COLA and AA was not properly justified as payable obligations, which ZCWD
paid after its financial conditions improved in 2005. Clearly, the PPA Employees case is
inapplicable.
Disallowance of CAN Incentives correct
PSLMC Resolution No. 2 provides for the guidelines in connection with the payment of
CNA incentives to rank-and-file employees of GOCCs. Section 2 thereof requires that the
CNA must include cost-cutting measures that shall be undertaken by both the
management and the union.
The COA was correct in finding that ZCWD failed to identify the specific cost-cutting
measures undertaken, pursuant to the CNA. The Certification22 issued by ZCWD merely
stated that there was a decrease in expenses but it did not specify the cost-cutting measures
resorted to. Moreover, the said certification, as well as the Certification of Savings,23 did
not cover the period in which the CNA incentives were supposedly given, which ran
contrary to Section 824 of PSLMC Resolution No. 2. ZCWD failed to establish that there
were savings in 2005 to justify the payment of CNA incentives during the said year.
ZCWD employees not entitled to 14th month pay
The COA disallowed the 14th month pay on the ground that ZCWD failed to prove that it
had granted the same to its employees since July 1, 1989 and even it were true, it could not
be extended to employees hired after the said date. ZCWD is adamant that it submitted
documentary evidence to support the payment of 14th month pay even before July 1, 1989.
It asserts that the documents it presented showed that what was paid to the employees was
the "Year-end Christmas Bonus" but it claims that the same was the 14th month pay.
The Court agrees with the COA that the documents presented by ZCWD did not
unequivocally show that it had paid its employees the 14th month pay because the "Yearend Christmas Bonus" could have referred to the usual year-end benefit equivalent to one
(1) month salary as provided by Memorandum Order No. 324.
Even if ZCWD could prove that it had granted the 14th month pay to its employees, it could
not insist that the same should be given to the employees hired after July 1, 1989. The 14th
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month pay was in the nature of an additional benefit, a non-integrated benefit, which had
been given on top of an employee's usual salary. As discussed above, in order for a nonintegrated benefit to be continuously enjoyed, it must have been given since July 1, 1989 to
incumbents as of the said date. It could not be extended to employees hired after July 1,
1989 or to those which had replaced the incumbents as of July 1, 1989.
ZCWD is mistaken in arguing that such treatment violated the equal protection clause
enshrined in the Constitution. The equal protection clause allows classification provided
that it is based on real and substantial differences having a reasonable relation to the
subject of the particular legislation.25 As explained in Aquino v. Philippine Ports
Authority,26 the distinction between employees hired before and after July 1, 1989 was
based on reasonable differences which was germane to the objective of the SSL to
standardize the salaries of government employees, to wit:
As explained earlier, the different treatment accorded the second sentence (first paragraph)
of Section 12 of RA 6758 to the incumbents as of 1 July 1989, on one hand, and those
employees hired on or after the said date, on the other, with respect to the grant of nonintegrated benefits lies in the fact that the legislature intended to gradually phase out the
said benefits without, however, upsetting its policy of non-diminution of pay and benefits.
The consequential outcome under Sections 12 and 17 is that if the incumbent resigns or is
promoted to a higher position, his successor is no longer entitled to his predecessor's RATA
privilege or to the transition allowance. After 1 July 1989, the additional financial incentives
such as RATA may no longer be given by the GOCCs with the exemption of those which
were authorized to be continued under Section 12 of RA 6758.
Therefore, the aforesaid provision does not infringe the equal protection clause of the
Constitution as it is based on reasonable classification intended to protect the rights of the
incumbents against diminution of their pay and benefits.
Per diems granted to the Board beyond the amount allowed by law
ZCWD asserts that pursuant to R.A. No. 9286, it is the LWUA which is authorized to fix
the per diem of its BOD and that A.O. No. 103 did not impliedly repeal R.A. No. 9286, hence,
the latter remains to be in effect. It insists that it could rely on LWUA Board Resolution
No. 120, which approved the per diem beyond the rates allowed by A.O. No. 103.
Although ZCWD is correct in arguing that A.O. No. 103 did not repeal R.A. No. 9286, it is,
however, mistaken, that the LWUA resolution is a sufficient basis to justify the grant of per
diem in the amount beyond what is allowed under A.O. No. 103. Section 3 of A.O. No. 103
instructs all GOCCs to reduce the combined total of per diems, honoraria and benefits to a
maximum of P20,000.00.
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The said provision did not divest LWUA of its authority to fix the per diem of BODs of
LWDs. It, nonetheless, limits the same in order to implement austerity measures, as
directed by A.O. No. 103, to meet the country's fiscal targets. Under R.A. No. 9275, the
LWUA is an attached agency of the Department of Public Works and Highway (DPWH).
The President, exercising his power of control over the executive department, including
attached agencies, may limit the authority of the LWUA over the amounts of per diem it
may allow.
Refund not necessary if the disbursements were made in good faith
Although the disbursements made by ZCWD may have been made without legal basis, the
petitioner may be absolved from refunding the disbursements if it is shown that they were
made in good faith. Good faith, in relation to the requirement of refund of disallowed
benefits or allowances, is "that state of mind denoting 'honesty of intention, and freedom
from knowledge of circumstances which ought to put the holder upon inquiry; an honest
intention to abstain from taking any unconscientious advantage of another, even though
technicalities of law, together with absence of all information, notice, or benefit or belief of
facts which render transactions unconscientious. ' "27
It is noteworthy that in Mendoza, the Court excused the GM therein from refunding the
amounts he received, which were the subject of the ND, to wit:
The salaries petitioner Mendoza received were fixed by the Talisay Water District's board
of directors pursuant to Section 23 of the Presidential Decree No. 198. Petitioner Mendoza
had no hand in fixing the amount of compensation he received. Moreover, at the time
petitioner Mendoza received the disputed amount in 2005 and 2006, there was no
jurisprudence yet ruling that water utilities are not exempted from the Salary
Standardization Law.
Pursuant to De Jesus v. Commission on Audit, petitioner Mendoza received the disallowed
salaries in good faith. He need not refund the disallowed amount.
Similar to Mendoza, the increase in GM Bucoy's salary was disallowed by the COA for being
in excess of the maximum amount allowed under the SSL. When the disbursements were
made, no categorical pronouncement similar to that in Mendoza had been made that the
LWDs were subject to the provisions of the SSL. As such, GM Bucoy is excused from
refunding the amount she received corresponding to her salary and increased monetized
leave credits on the basis of good faith.
Further, a thorough reaching of Mendoza and the cases cited therein would lead to the
conclusion that ZCWD officers who approved the increase of GM Bucoy's are also not
obliged either to refund the same. In de Jesus v. Commission on Audit,28 the Court
absolved the petitioner therein from refunding the disallowed amount on the basis of good
faith, pursuant to de Jesus and the Interim Board of Directors, Catbalogan Water District
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v. Commission on Audit.29 In the latter case, the Court absolved the Board of Directors
from refunding the allowances they received because at the time they were disbursed, no
ruling from the Court prohibiting the same had been made. Applying the ruling in Blaquera
v. Alcala (Blaquera),30 the Court reasoned that the Board of Directors need not make a
refund on the basis of good faith, because they had no knowledge that the payment was
without a legal basis.
In Blaquera, the Court did not require government officials who approved the disallowed
disbursements to refund the same on the basis of good faith, to wit:
Untenable is petitioners' contention that the herein respondents be held personally liable
for the refund in question. Absent a showing of bad faith or malice, public officers are not
personally liable for damages resulting from the performance of official duties.
Every public official is entitled to the presumption of good faith in the discharge of official
duties. Absent any showing of bad faith or malice, there is likewise a presumption of
regularity in the performance of official duties.
xxxx
Considering, however, that all the parties here acted in good faith, we cannot countenance
the refund of subject incentive benefits for the year 1992, which amounts the petitioners
have already received. Indeed, no indicia of bad faith can be detected under the attendant
facts and circumstances. The officials and chiefs of offices concerned disbursed such
incentive benefits in the honest belief that the amounts given were due to the recipients
and the latter accepted the same with gratitude, confident that they richly deserve such
benefits.
A careful reading of the above-cited jurisprudence shows that even approving officers may
be excused from being personally liable to refund the amounts disallowed in a COA audit,
provided that they had acted in good faith. Moreover, lack of knowledge of a similar ruling
by this Court prohibiting a particular disbursement is a badge of good faith.
In the case at bench, there are several items that need not be refunded based on good faith.
First, the BOD of ZCWD are not obliged to refund the amounts corresponding to GM
Bucoy's salary and monetized leaved credits because at the time they were paid, no ruling
similar to Mendoza -unequivocally declaring that L WDs are bound by the provisions of
the SSL- had been made.
Second, the back payment of the COLA and AA need not be refunded because at the time
they were paid, there was no similar ruling like the MIA case, where it was held that
integration was the general rule and, therefore, benefits were deemed integrated
notwithstanding the absence of a DBM issuance. Prior to MIA, there had been no
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categorical pronouncement that, by virtue of Section 12 of the SSL, benefits were deemed
integrated, without a need of a subsequent issuance from the DBM. Consequently, the
officers who authorized the back payment of the COLA and AA and the employees who
received them believing to be entitled thereto need not refund the same. They were in good
faith as they were oblivious that the said payments were improper.
Lastly, ZCWD cannot be faulted for paying the midyear incentives granted under its
PRAISE Program because it merely relied on the authorization granted by the CSC, which
found the same compliant with the CSC guidelines and approved its implementation. The
same need not be refunded on the basis of good faith. The BOD of ZCWD allowed the
payment of mid-year incentives believing that the supposed CSC authorization was
sufficient basis, while the employees received them under the impression that they
rightfully deserved them.<1âwphi1/p>
Good faith, however, cannot be appreciated in the other release of funds made by ZCWD.
First, it is noteworthy that as early as 1992, the Court has ruled in PPA that the RATA under
the rates provided in LOI No. 97 must have been enjoyed since July 1, 1989 by incumbent
employees as of the said date. ZCWD admitted that its employees were receiving RATA not
based on the rates provided by LOI No. 97.
Second, ZCWD authorized the release of CNA incentives, in spite of its failure to strictly
comply with PSLMC Resolution No. 2. ZCWD also failed to justify why it paid for a separate
life insurance program other than the GSIS. Therefore, officers of ZCWD who were
responsible for the release the aforementioned disbursements are bound to refund the
same.
Lastly, good faith cannot absolve the ZCWD from refunding the per diems granted to the
BOD. ZCWD insists that it merely relied on the LWUA Board Resolution which authorized
the payment of the per diems that exceed the amount authorized under A.O. No. 103. The
justification falls short of the standard of good faith required to be exempt from refunding
disallowed benefits or allowances. ZCWD does not deny its awareness of the limits
provided under A.O. No. 103. It nonetheless opted to simply depend on the LWUA issuance.
In order for good faith to be appreciated, ZCWD must be without any knowledge of
circumstances that would have placed it on guard.
ZCWD, being aware of the existence of A.O. No. 103 which placed a cap on the maximum
per diems granted to the BOD of GOCCs, could have been more prudent to discontinue
the grant of per diems based on the rates provided by the L WUA resolution, and instead,
complied with the limitations set by A.O. No. 103. Thus, its BOD is bound to refund the
amount of the surplus per diems, which they had authorized and received.
The ZCWD employees who merely received the disallowed amounts, are not obliged to
refund the same because they had no participation in approving the release of the per diem.
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In Silang v. Commission on Audit,31 the Court cleared the employees who received the
disallowed benefits on the basis of good faith, to wit:
In this case, the majority of the petitioners are the LGU of Tayabas, Quezon's rank-and-file
employees and bona.fide members of UNGKAT (named-below) who received the 2008 and
2009 CNA Incentives on the honest belief that UNGKAT was fully clothed with the
authority to represent them in the CNA negotiations. As the records bear out, there was no
indication that these rank-and-file employees, except the UNGKAT officers or members of
its Board of Directors named below, had participated in any of the negotiations or were, in
any manner, privy to the internal workings related to the approval of said incentives; hence,
under such limitation, the reasonable conclusion is that they were mere passive recipients
who cannot be charged with knowledge of any irregularity attending the disallowed
disbursement. Verily, good faith is anchored on an honest belief that one is legally entitled
to the benefit, as said employees did so believe in this case. Therefore, said petitioners
should not be held liable to refund what they had unwittingly received.
[Emphasis Supplied]
Unlike the officers of ZCWD who authorized the payment of the disallowed disbursements,
these employees were merely passive recipients who honestly believed they were entitled
to the said benefits as their payment was ratified by their officers. They were in good faith
as they were unaware that the benefits they received were either without basis or had failed
to comply with the requirements of the law. Thus, the employees who received the CNA
incentives and the 14th month pay and the employees who were covered by the life
insurance program other than the GSIS need not refund the amounts paid out for these
benefits.
Jurisdiction
METROPOLITAN NAGA WATER DISTRICT, VIRGINIA I. NERO, JEREMIAS P. ABAN
JR., AND EMMA A. CUYO, Petitioners, v. COMMISSION ON AUDIT, Respondent.
G.R. No. 218072, March 08, 2016
Facts:
On August 20, 2002, the Board of Directors (the Board) of petitioner MNWD passed a
resolution4 granting the payment of accrued COLA covering the period from 1992 to 1999
in favor of qualified MNWD personnel. The Board issued the said resolution on the basis
of the Court's ruling in de Jesus v. COA5 and its subsequent rulings, and the series of
opinions of the Office of the Government Corporate Counsel (OGCC). The MNWD
employees began receiving their respective accrued COLA in installment basis starting
2002.6
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During the post-audit, the Audit Team Leader Jaime T. Posada, Jr. (Posada) observed that
the payment of COLA in the amount of P3,499,681.14 in 2007 lacked documentation. Thus,
Posada required MNWD to submit its payroll as of June 30, 1989 for COLA and its payroll
as of July 31, 1989 for salary and other benefits including COLA. The purpose was to
determine whether the COLA was received by MNWD employees prior to the effectivity of
the Salary Standardization Law (SSL).7 MNWD failed to submit the requested documents.
On June 15, 2009 Posada issued Notice of Disallowance (ND) No. 2009-0018 disallowing the
COLA paid in 2007 amounting to P3,499,681.14 and directing the named MNWD officers
to immediately settle the disallowance. On October 8, 2009, MNWD filed a notice of appeal
with the COA Regional Office.
In its October 24, 2011 decision, the COA Regional Office upheld the ND covering the
disbursement of COLA in 2007 amounting to P3,499,681.14. It opined that MNWD could
not rely on the case of PPA Employees hired after July 1, 1989 v. COA (PPA Employees)9
because the circumstances were dissimilar considering that MNWD was unable to prove
that it had granted COLA to its employees since July 1, 1989. Moreover, the COA Regional
Office ruled that MWND could not assert that its employees were entitled to COLA by
virtue of Letter of Implementation (LOI) No. 9710 because the latter did not include water
districts in its coverage.
Undaunted, MWND appealed before the COA.
On September 10, 2014, the COA rendered the assailed decision affirming the ruling of the
COA Regional Office. It agreed with the COA Regional Office that there was substantial
distinction between the case of Philippine Ports Authority (PPA) and that of MNWD which
warranted the difference in the treatment of the back payment of COLA. The COA noted
that in PPA Employees, it was established that the PPA had been paying COLA to its
employees even prior to July 1, 1989. MNWD, on the other hand, admitted that it had not
previously paid the COLA and merely disbursed the same after the passage of a board
resolution in 2002. The COA also negated the argument of MNWD that its personnel were
entitled to COLA as a matter of right. The COA ruled that water districts were not within
the coverage of LOI No. 97.
Aggrieved, MNWD moved for reconsideration, but its motion was denied by the COA in
its assailed resolution, dated March 9, 2015.
Issues:
A. WHETHER COA GRAVELY ABUSED ITS DISCRETION TANTAMOUNT TO LACK OR
EXCESS OF JURISDICTION IN NOT RECOGNIZING WATER DISTRICT EMPLOYEES'
ENTITLEMENT TO ACCRUED COLA FOR THE PERIOD 1992-1999 AS A MATER OF
RIGHT IN ACCORDANCE WITH LOI 97.
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B. WHETHER COA GRAVELY ABUSED ITS DISCRETION TANTAMOUNT TO LACK OR
EXCESS OF JURISDICTION WHEN IT FAILED TO APPLY EXISTING JURISPRUDENCE IN
FAVOR OF MNWD'S EMPLOYEES FOR COLA ENTITLEMENT.
Ruling:
LWDs are among those included in the scope of LOI No. 97. A local water utility is defined
as any district, city, municipality, province, investor-owned public utility or cooperative
corporation which owns or operates a water system serving an urban center in the
Philippines, except that the said term shall not include the Metropolitan Waterworks and
Sewerage System (MWSS) or any system operated by the Bureau of Public Works.17 It is,
therefore, categorical that MNWD, as a LWD, is included in the coverage of LOI No. 97.
So although it is correct for MNWD to insist that LWDs were subject to the provisions of
LOI No. 97, it is erroneous for it to claim that LWDs started to be covered by LOI No. 97
only in 1991 when the Court promulgated Davao City Water District. In the said case, it was
ruled that LWDs, created pursuant to Presidential Decree (P.D.) No. 198, were GOCCs with
original charter. It must be remembered that the interpretation of a law by this Court
constitutes part of that law from the date it was originally passed, as it merely establishes
the contemporaneous legislative intent that the interpreted law carried into effect.18 Thus,
when P.D. No. 198 was enacted in 1973, LWDs were already GOCCs included in the coverage
of LOI No. 97.
No need to establish that the benefits in question were received since July 1, 1989 by
incumbent employees as of the said date
MNWD correctly argues that the elements of incumbency and prior receipts are
inapplicable in determining the propriety of its COLA back payments. In Ambros v. COA,19
as cited in Aquino, the Court explained that in order for non-integrated benefits to be
continued, they must have been received as of July 1, 1989 by incumbents as of the said
date. Thus, when the benefit in question is not among the non-integrated benefits
enumerated under Section 12 of the SSL or added by a subsequent issuance of the
Department of Budget and Management (DBM), the twin requirements of incumbency and
prior receipt find no application. Hence, in resolving the propriety of the COLA back
payments, a resort to the abovementioned requirements is unnecessary.
Integration is the rule and not the exception
The Court, nevertheless, finds that the back payment of the COLA to MNWD employees
was rightfully disallowed. Pertinent to the issue is Section 12 of the SSL, which provides:
SECTION 12. Consolidation of Allowances and Compensation. — All allowances, except for
representation and transportation allowances; clothing and laundry allowances;
subsistence allowance of marine officers and crew on board government vessels and
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hospital personnel; hazard pay; allowances of foreign service personnel stationed abroad;
and such other additional compensation not otherwise specified herein as may be
determined by the DBM, shall be deemed included in the standardized salary rates herein
prescribed. Such other additional compensation, whether in cash or in kind, being received
by incumbents only as of July 1, 1989 not integrated into the standardized salary rates shall
continue to be authorized.
The consolidation of allowances in the standardized salary as stated in the above-cited
provision is a new rule in Philippine position classification and compensation system. In
Maritime Industry Authority v. COA (MIA),20 the Court explained that, in line with the
clear policy of standardization set forth in Section 12 of the SSL, all allowances, including
the COLA, were generally deemed integrated in the standardized salary received by
government employees, and an action from the DBM was only necessary if additional nonintegrated allowances would be identified. Accordingly, MNWD was without basis in
claiming COLA back payments because the same had already been integrated into the
salaries received by its employees.
Moreover, MNWD's reliance in PPA Employees is misplaced. The circumstances in the case
at bench clearly differ from those in PPA Employees to warrant its application. In Napocor
Employees Consolidated Union v. The National Power Corporation (Napocor),21 as cited
in MIA, the Court clarified that the PPA Employees was inapplicable where there was no
issue as to the incumbency of the employees, to wit:
In setting aside COA's ruling, we held in PPA Employees that there was no basis to use the
elements of incumbency and prior receipt as standards to discriminate against the
petitioners therein. For, DBM-CCC No. 10, upon which the incumbency and prior receipt
requirements are contextually predicated, was in legal limbo from July 1, 1989 (effective
date of the unpublished DBM-CCC No. 10) to March 16, 1999 (date of effectivity of the
heretofore unpublished DBM circular). And being in legal limbo, the benefits otherwise
covered by the circular, if properly published, were likewise in legal limbo as they cannot
be classified either as effectively integrated or not integrated benefits.
There lies the difference.
Here, the employee welfare allowance was, as above demonstrated, integrated by NPC into
the employees' standardized salary rates effective July 1, 1989 pursuant to Rep. Act No. 6758.
Unlike in PPA Employees, the element of discrimination between incumbents as of July 1,
1989 and those joining the force thereafter is not obtaining in this case. And while after July
1, 1989, PPA employees can rightfully complain about the discontinuance of payment of
COLA and amelioration allowance effected due to the incumbency and prior receipt
requirements set forth in DBM-CCC No. 10, NPC cannot do likewise with respect to their
welfare allowance since NPC has, for all intents and purposes, never really discontinued
the payment thereof.
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To stress, herein petitioners failed to establish that they suffered a diminution in pay as a
consequence of the consolidation of the employee welfare allowance into their
standardized salary. There is thus nothing in this case which can be the subject of a back
pay since the amount corresponding to the employee welfare allowance was never in the
first place withheld from the petitioners.
In PPA Employees, the crux of the issue was whether it was appropriate to distinguish
between employees hired before and after July 1, 1989 in allowing the back payment of the
COLA. In the said case, the Court ruled that there was no substantial difference between
employees hired before July 1, 1989 and those hired thereafter to warrant the exclusion of
the latter from COLA back payment. It is important to highlight that, in PPA Employees,
the COLA was paid on top of the salaries received by the employees therein before it was
discontinued.
The COA noted that the MNWD employees never received the COLA prior to 2002. Thus,
following the ruling in Napocor, there is nothing in this case which could be the subject of
back payment considering that the COLA was never withheld from MNWD employees in
the first place. In PPA Employees, the Court allowed the back payment of the COLA
because the employees hired after July 1, 1989 would suffer a diminution in pay if the back
payment would be limited to employees hired before the said date. Here, no diminution
would take place as the MNWD employees only received the COLA in 2002.
Refund not necessary when there is a showing of good faith
MNWD, nonetheless, is not required to return the disallowed amount on the basis of good
faith. Good faith, in relation to the requirement of refund of disallowed benefits or
allowances, is a "state of mind denoting honesty of intention, and freedom from knowledge
of circumstances which ought to put the holder upon inquiry; an honest intention to
abstain from taking any unconscientious advantage of another, even through technicalities
of law, together with absence of all information, notice, or benefit or belief of facts which
render transaction unconscientious."23
MNWD employees need not refund the amounts corresponding to the COLA they received.
They had no participation in the approval thereof and were mere passive recipients without
knowledge of any irregularity. Hence, good faith should be appreciated in their favor for
receiving benefits to which they thought they were entitled.24
Further, good faith may also be appreciated in favor of the MNWD officers who approved
the same. They merely acted in accordance with the resolution passed by the Board
authorizing the back payment of COLA to the employees. Moreover, at the time the
disbursements were made, no ruling similar to MIA was yet made declaring that the COLA
was deemed automatically integrated into the salary notwithstanding the absence of a DBM
issuance. In Mendoza v. COA, the Court considered the same circumstances as badges of
good faith.
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ALMA G. PARAISO-ABAN, Petitioner, vs. COMMISSION ON AUDIT, Respondent.
January 12, 2016, G.R. No. 217948
Facts:
During the l1th Congress (1998 to 2001), the Senate's Committees on Accountability of
Public Officers and Investigations and on National Defense and Security held various
hearings to investigate the alleged anomalous acquisitions of land by the Armed Forces of
the Philippines Retirement and Separation Benefits System (AFP-RSBS) in Calamba,
Laguna and Tanauan, Batangas. Acting on resolutions passed by the said Senate
committees, the Deputy Ombudsman for the Military and Other Law Enforcement Offices
on April 29, 2004 requested the COA to conduct an audit of the past and present
transactions of the AFP-RSBS.
Thus, per COA Legal and Adjudication Office Order No. 2004-125 dated December 29,
2004, a special audit team (SAT) was constituted, which found that in August 1996 the AFPRSBS purchased from the Concord Resources, Inc. (Concord) four (4) parcels of land
located in Calamba, Laguna with a total area of 227,562 square meters, but that the
purchase was covered by two deeds of sale for different amounts; and, that the sale which
was registered with the Register of Deeds (RD) of Calamba indicated a total price of P9 l
,024,800.00 and bore the signatures of both vendor and vendee, whereas the deeds of sale
found in the records of the AFP-RSBS, which was executed by Concord alone and which
was entered in the books of accounts of AFP-RSBS, showed that the AFP-RSBS actually paid
P341,343,000.00 for the lots, or a difference of P250,318,200.00.
The SAT issued Audit Observation Memorandum Nos. 2005-017 and 2005-02, which were
received by AFP-RSBS on October 12, 2005 and October 20, 2005, respectively. It elicited
no response from the latter, hence, its conclusion that for all legal intents the true deed of
sale was the one filed with the RD.
On July 28, 2010, the SAT issued ND No. 2010-07-084-(1996) for P250,318,200.00
representing the excess in the price paid for the above lots. It named the petitioner, then
the Acting Head of the Office of Internal Auditor of the AFP-RSBS, as among the persons
liable for the said disallowance, on the basis of her participation in the transaction through
her "verifying the correctness of payment.” The other persons found liable and also named
in the ND were Elizabeth C. Liang, President of Concord, for representing Concord and
receiving payment for the land; Jesus S. Garcia, Treasurer of Concord, for representing
Concord; Jose S. Ramiscal, Jr., President of AFP-RSBS, for approving the payment for the
land; and Oscar O. Martinez, Vice President-Comptroller of AFP-RSBS, for recommending
the approval of the said payment.
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The petitioner appealed to the COA Proper (COA en banc), where she reiterated that she
had no knowledge of the above transactions prior to her department's conduct of the postaudit; that the payments had been made by the AFP-RSBS even before her verification and
approval; that the documents supporting the payments were found to be complete; that
until the COA audit she was not aware that there were two versions of the deeds of sale,
nor did she have knowledge why two versions of the deeds of sale were executed; that she
did not benefit in any way from the transaction; and, that she signed "verified correct" on
the vouchers in good faith and only after the post-audit by.the Audit Staff, Marilou R.
Narzabal (Narzabal), and the review by the Head of the Financial Audit Branch, Dahlia B.
Peña (Peña), which were undertaken several months after the payments were released to
Concord.
On November 5, 2012, the COA en banc denied the petitioner's request for exclusion from
liability under ND No. 2010-07-084-(1996). On February 27, 2015, the COA en banc also
denied her motion for reconsideration.
Ruling:
The Court finds no grave abuse of discretion on the part of the COA in rendering its assailed
decision, which disregarded the petitioner's defense that she had no knowledge of the
above transaction, or of the two versions of the deed of sale, prior to her post-audit, or that
the payments for the lots were made long before she signed "verified correct" after
completing the post-audit process and finding the supporting documents to be complete,
or that she did not benefit from the transaction in any way.
It is well to be reminded that the exercise by COA of its general audit power is among the
mechanisms of check and balance instituted under the 1987 Constitution on which our
democratic form of government is founded. Article IX-D, Section 2(1) of the 1987
Constitution provides that the COA has "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 or
controlled corporations with original charters." Corollary to the COA's audit power, Section
2(2) of Article IX-D further provides:
Sec. 2(2). The Commission shall have exclusive authority, subject to the limitations in this
Article, to define the scope of its audit and examination, establish the techniques and
methods required therefor, 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.
(Emphasis supplied)
In a recent case, Delos Santos v. COA, wherein the Court upheld the COA's disallowance
of irregularly disbursed Priority Development Assistance Fund, the Court explained that:
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At the outset, it must be emphasized that the
determine, prevent, and disallow irregular,
unconscionable expenditures of government
conscientious in safeguarding the proper use
people's, property. The exercise of its general
mechanisms that gives life to the check and
government.
CoA is endowed with enough latitude to
unnecessary, excessive, extravagant or
funds. It is tasked to be vigilant and
of the government's, and ultimately the
audit power is among the constitutional
balance system inherent in our form of
Corollary thereto, it is the general policy of the Court to sustain the decisions of
administrative authorities, especially one which is constitutionally-created, such as the
CoA, not only on the basis of the doctrine of separation of powers but also for their
presumed expertise in the laws they are entrusted to enforce. Findings of administrative
agencies are accorded not only respect but also finality when the decision and order are
not tainted with unfairness or arbitrariness that would amount to grave abuse of discretion.
It is only when the CoA has acted without or in excess of jurisdiction, or with grave abuse
of discretion amounting to lack or excess of jurisdiction, that this Court entertains a
petition questioning its rulings. x x x. (Citation omitted and emphasis supplied)
By reason of their special knowledge and expertise over matters falling under their
jurisdiction, administrative agencies are in a better position to pass judgment thereon, and
their findings of fact are generally accorded great respect, if not finality, by the courts. Such
findings must be respected as long as they are supported by substantial evidence, even if
such evidence is not overwhelming or even preponderant. It is not the task of the appellate
court or this Court to once again weigh the evidence submitted before and passed upon by
the administrative body and to substitute its own judgment regarding the sufficiency of the
evidence. It is only when the agency has acted without or in excess of jurisdiction, or with
grave abuse of discretion amounting to lack or excess of jurisdiction, that this Court
entertains a petition questioning the agency's rulings.
In its assailed decision, the COA cited Title II, Vol. III of the Government Accounting and
Auditing Manual to point out that internal audit is part of internal control which the
responsible agency officers must exercise over its transactions.19 As Section 123 of
Presidential Decree (P.D.) No. 1445 also provides:
Sec. 123. Definition of internal control. Internal control is the plan of organization and all
the coordinate methods and measures adopted within an organization or agency to
safeguard its assets, check the accuracy and reliability of its accounting data, and encourage
adherence to prescribed managerial policies.
As further provided in Section 124 of P.D. No. 1445, it is the direct responsibility of the head
of agency to install, implement, and monitor a sound system of internal control. Needless
to state, however, the agency head must rely on the diligent assistance and sound expertise
of the internal audit head and staff in installing and operating a sound internal control
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system. In the case before this Court, the petitioner admitted that to verify the correctness
of the subject transaction, all that she did was to check the same against AFP-RSBS 's
"approved" planned purchases and "approved" budgets, further pointing out that she
"signed correct" on the vouchers months after payments had been released to Concord, and
only after the post-audit by the audit staff, Narzabal, and the review by the head of the
Financial Audit Branch, Peña. The petitioner consulted no independent sources, such as
the documents submitted to the Bureau of Internal Revenue (BIR) and the RD, or any data
of prevailing real estate prices. Had she done so, she could conceivably have discovered the
loss.
The Court agrees with the COA that the internal audit and verification conducted by the
petitioner, as head of the AFP-RSBS Internal Auditor Office, failed to demonstrate the
degree of diligence and good faith required in the performance of her sworn duty to
safeguard the assets of AFP-RSBS. She admitted that she relied merely on the post-audit
performed by her subordinates, who may be presumed to be less competent and
responsible than she is. Considering the amount involved in the purchase, and indeed the
very likelihood of padded prices so common in such a deal, the petitioner miserably failed
to perform any necessary personal verification of the correctness of the prices paid for the
lots purchased, which is surely demanded as part of her internal audit function.
The petitioner insists that she did not know about the purchase until the vouchers and
supporting documents were submitted to her for verification.1âwphi1 Yet, as head of
internal audit, it is surely part of her duties to require that she be apprised beforehand of
such planned significant transactions. Moreover, because of the huge amount involved, it
would not be too onerous and unrealistic to have expected her to verify the correctness of
the amounts involved against the documents submitted to the RD and the BIR to effect the
transfer of Concord's titles to AFP-RSBS. Has she done so, she easily could have discovered
that there are two deeds of sale showing wide discrepancies in the prices for the same lots.
The Court is convinced that the petitioner neglected to exercise due care and diligence in
preventing such huge loss to AFP-RSBS. Several months had elapsed from the time the
payments were made to when she verified the sale, and meanwhile the petitioner and her
staff could have procured independent data and documents such as those in the possession
of the BIR and the RD.
But as the petitioner admitted, in attesting in the payment vouchers that the subject
purchase was correct and duly authorized, she merely relied on the so-called approval
sheets for the "land banking" investment planned by the AFP-RSBS 's Board of Trustees.
The approval sheet of the AFP-RSBS Investment Committee recommended the purchase
of 611 hectares of land in Calamba, Laguna for "land banking" for Pl ,576, 100,000.00, while
the approval sheet for the purchase of the subject right-of-way covering 22. 725 hectares
contained an estimate of Pl ,500.00 per sq m. The petitioner failed to reckon that these
prices were mere estimates for the proposed purchases.21 In her own appeal memorandum,
it is clear that she performed no other significant verification or examination to ensure that
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the budgets approved for the planned investment would be reflective of the prevailing
values of similar real estate in Calamba.
Surely, the approved budget for the land acquisition did not in itself constitute an authority
for the AFP-RSBS to exhaust the entire amount of the budget set aside. As it now turns out,
the deed of sale executed by both the AFP-RSBS and Concord and registered with the RD
of Calamba shows that both the AFP-RSBS and Concord attested that P91,024,800.00 was
the correct price, whereas the deed of sale on file with AFP-RSBS was signed by Concord
alone, and it bore the amount of P341,343,000.00 actually paid by AFP-RSBS to Concord.
On the basis of these two deeds of sale, the COA concluded that the AFP-RSBS squandered
up to P250,318,200.00 in savings for the government.
Section 16 of the 2009 Rules and Regulations on Settlement of Accounts, as prescribed in
COA Circular No. 2009-006, on who are liable for audit disallowances, provides:
Section 16.1 The Liability of public officers and other persons for audit
disallowances/charges shall be determined on the basis of (a) the nature of the
disallowance/charge; (b) the duties and responsibilities or obligations of
officers/employees concerned; (c) the extent of their participation in the
disallowed/charged transaction; and (d) the amount of damage or loss to the government,
thus:
16.1.1 Public officers who are custodians of government funds shall be liable for their failure
to ensure that such funds are safely guarded loss or damage; that they are expended,
utilized, disposed of or transferred in accordance with law and regulations, and on the basis
of prescribed documents and necessary records.
16.1.2 Public officers who certify as to the necessity, legality and availability of funds or
adequacy of documents shall be liable according to their respective certifications.
16.1.3 Public officers who approve or authorize expenditures shall be held liable for losses
arising out of their negligence or failure to exercise the diligence of a good father of a family.
x x x x (Emphasis supplied)
By signing the verification in the check vouchers to "attest" to the "correctness" of AFPRSBS's land banking purchase after merely comparing the same against the approved
investment budgets, but without however performing appropriate additional internal audit
procedures to allow her to conduct further verification of the true amounts involved, the
petitioner rendered herself liable upon the loss incurred by AFP-RSBS because she is
thereby said to have lent her approval to the anomalous purchase.
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THE PROVINCE OF AKLAN vs. JODY KING CONSTRUCTION AND DEVELOPMENT
CORP.
G.R. Nos. 197592 & 20262, November 27, 2013
J. Villarama
Under Commonwealth Act No. 327, as amended by Section 26 of Presidential Decree
No. 1445, it is the COA which has primary jurisdiction over money claims against
government agencies and instrumentalities.
The scope of the COA’s authority to take cognizance of claims is however
circumscribed to mean only liquidated claims, or those determined or readily determinable
from vouchers, invoices, and such other papers within reach of accounting officers.
Facts:
The Province of Aklan and Jody King Construction entered into a contract for the design
and construction of the Caticlan Jetty Port and Terminal in Malay, Aklan. The total project
cost is P38,900,000: P 18,700,000 for the design and construction of passenger terminal,
and P20,200,000 for the design and construction of the jetty port facility. In the course of
construction, petitioner issued variation/change orders for additional works. The scope of
work under these change orders were agreed upon by petitioner and respondent.
Petitioner further entered into a negotiated a P2,475,345.54 contract with respondent for
the construction of Passenger Terminal Building (Phase II) also at Caticlan Jetty Port in
Malay, Aklan.
Respondent made a demand for an amount of P22,419,112.96 covering items which
petitioner allegedly failed to settle. Respondent sued petitioner in the RTC Marikina to
collect the amounts. The trial court issued a writ of preliminary attachment. Petitioner on
the otherhand denied any unpaid balance and interest due to respondent. It asserted that
the sums being claimed by respondent were not indicated in Change Order No. 3 as
approved by the Office of Provincial Governor. After trial, the trial court rendered its
Decision in favor of plaintiff Jody King Construction And Development Corporation and
against defendant Province of Aklan.
Petitioner filed its motion for reconsideration but the trial court denied the same. The trial
court then issued a writ of execution ordering Sheriff to demand from petitioner the
immediate payment of P67,027,378.34 and tender the same to the respondent.
Consequently, Sheriff Gamboa served notices of garnishment on Land Bank of the
Philippines, Philippine National Bank and Development Bank of the Philippines at their
branches in Kalibo, Aklan for the satisfaction of the judgment debt from the funds
deposited under the account of petitioner. Said banks, however, refused to give due course
to the court order, citing the relevant provisions of statutes, circulars and jurisprudence on
the determination of government monetary liabilities, their enforcement and satisfaction.
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Petitioner filed in the CA a petition for certiorari with application for TRO and preliminary
injunction assailing the Writ of Execution docketed as CA-G.R. SP No. 111754. By Decision
CA’s First Division dismissed the petition as it found no grave abuse of discretion in the
lower court’s issuance of the writ of execution. A motion for reconsideration was likewise
denied by the CA.
On December 7, 2009, the trial court denied petitioner’s notice of appeal filed on December
1, 2009. Petitioner’s motion for reconsideration of the December 7, 2009 Order was likewise
denied. On May 20, 2010, petitioner filed another petition for certiorari in the CA
questioning the aforesaid orders denying due course to its notice of appeal, docketed as
CA-G.R. SP No. 114073.The CA’s Sixteenth Division dismissed the petition. The CA said that
petitioner failed to provide valid justification for its failure to file a timely motion for
reconsideration.The CA also held that petitioner is estopped from invoking the doctrine of
primary jurisdiction as it only raised the issue of COA’s primary jurisdiction after its notice
of appeal was denied and a writ of execution was issued against it.
Issue:
In G.R. No. 197592: Whether the decision rendered by the RTC Marikina and the Writ of
Execution should be rendered void for lack of jurisdiction over the subject matter of the
case.
In G.R. No. 202623: Whether the petitioner is not estopped in questioning the jurisdiction
of the Regional Trial Court Marikina City over the subject matter of the case.
Ruling:
The petitions granted.
COA has primary jurisdiction over private respondent’s money claims Petitioner is not
estopped from raising the issue of jurisdiction
The doctrine of primary jurisdiction holds that if a case is such that its determination
requires the expertise, specialized training and knowledge of the proper administrative
bodies, relief must first be obtained in an administrative proceeding before a remedy is
supplied by the courts even if the matter may well be within their proper jurisdiction. It
applies where a claim is originally cognizable in the courts, and comes into play whenever
enforcement of the claim requires the resolution of issues which, under a regulatory
scheme, have been placed within the special competence of an administrative agency. In
such a case, the court in which the claim is sought to be enforced may suspend the judicial
process pending referral of such issues to the administrative body for its view or, if the
parties would not be unfairly disadvantaged, dismiss the case without prejudice.
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The objective of the doctrine of primary jurisdiction is to guide the court in determining
whether it should refrain from exercising its jurisdiction until after an administrative
agency has determined some question or some aspect of some question arising in the
proceeding before the court.
As can be gleaned, respondent seeks to enforce a claim for sums of money allegedly owed
by petitioner, a local government unit. Under Commonwealth Act No. 327, as amended by
Section 26 of Presidential Decree No. 1445, it is the COA which has primary jurisdiction
over money claims against government agencies and instrumentalities.
Pursuant to its rule-making authority conferred by the 1987 Constitution and existing laws,
the COA promulgated the 2009 Revised Rules of Procedure of the Commission on Audit.
Rule II, Section 1 specifically enumerated those matters falling under COA’s exclusive
jurisdiction, which include "money claims due from or owing to any government agency.
In Euro-Med Laboratories Phil., Inc. v. Province of Batangas, It was ruled that it is the COA
and not the RTC which has primary jurisdiction to pass upon petitioner’s money claim
against respondent local government unit. Such jurisdiction may not be waived by the
parties’ failure to argue the issue nor active participation in the proceedings.
This case is one over which the doctrine of primary jurisdiction clearly held sway for
although petitioner’s collection suit for P487,662.80 was within the jurisdiction of the RTC,
the circumstances surrounding petitioner’s claim brought it clearly within the ambit of the
COA’s jurisdiction.
First, petitioner was seeking the enforcement of a claim for a certain amount of money
against a local government unit. This brought the case within the COA’s domain to pass
upon money claims against the government or any subdivision thereof under Section 26 of
the Government Auditing Code of the Philippines.
The scope of the COA’s authority to take cognizance of claims is circumscribed, however,
by an unbroken line of cases holding statutes of similar import to mean only liquidated
claims, or those determined or readily determinable from vouchers, invoices, and such
other papers within reach of accounting officers. Petitioner’s claim was for a fixed amount
and although respondent took issue with the accuracy of petitioner’s summation of its
accountabilities, the amount thereof was readily determinable from the receipts, invoices
and other documents. Thus, the claim was well within the COA’s jurisdiction under the
Government Auditing Code of the Philippines.
Second, petitioner’s money claim was founded on a series of purchases for the medical
supplies of respondent’s public hospitals. Both parties agreed that these transactions were
governed by the Local Government Code provisions on supply and property management
and their implementing rules and regulations promulgated by the COA pursuant to Section
383 of said Code. Petitioner’s claim therefore involved compliance with applicable auditing
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laws and rules on procurement. Such matters are not within the usual area of knowledge,
experience and expertise of most judges but within the special competence of COA auditors
and accountants. Thus, it was but proper, out of fidelity to the doctrine of primary
jurisdiction, for the RTC to dismiss petitioner’s complaint.
Petitioner argues, however, that respondent could no longer question the RTC’s
jurisdiction over the matter after it had filed its answer and participated in the subsequent
proceedings. To this, we need only state that the court may raise the issue of primary
jurisdiction sua sponte and its invocation cannot be waived by the failure of the parties to
argue it as the doctrine exists for the proper distribution of power between judicial and
administrative bodies and not for the convenience of the parties.
Respondent’s collection suit being directed against a local government unit, such money
claim should have been first brought to the COA. Hence, the RTC should have suspended
the proceedings and refer the filing of the claim before the COA. Moreover, petitioner is
not estopped from raising the issue of jurisdiction even after the denial of its notice of
appeal and before the CA.
The doctrine of primary jurisdiction does not warrant a court to arrogate unto itself
authority to resolve a controversy the jurisdiction over which is initially lodged with an
administrative body of special competence. All the proceedings of the court in violation of
the doctrine and all orders and decisions rendered thereby are null and void.
Writ of Execution issued in violation of COA’s primary jurisdiction is void
Since a judgment rendered by a body or tribunal that has no jurisdiction over the subject
matter of the case is no judgment at all, it cannot be the source of any right or the creator
of any obligation. All acts pursuant to it and all claims emanating from it have no legal
effect and the void judgment can never be final and any writ of execution based on it is
likewise void.
Clearly, the CA erred in ruling that the RTC committed no grave abuse of discretion when
it ordered the execution of its judgment against petitioner and garnishment of the latter’s
funds. The RTC's orders implementing its judgment rendered without jurisdiction must be
set aside because a void judgment can never be validly executed.
THE SPECIAL AUDIT TEAM, COMMISSION ON AUDIT vs. COURT OF APPEALS
and GOVERNMENT SERVICE INSURANCE SYSTEM
G.R. No. 174788, April 11, 2013
C.J. Sereno
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When a government agency is subject to audit, the said agency cannot claim that
the formulation of a special audit team is violative of the Constitution. The Commission on
Audit has been granted by the Constitution the authority to establish a special audit group
when a transaction warrants the formulation of the same and the authority to determine
the scope of its audit and examination as well as the methods and techniques to be used
therefor.
Facts:
COA created the Special Audit Team to conduct a special audit of specific GSIS
transactions. Accordingly, the SAT immediately initiated a conference with GSIS
management and requested copies of pertinent auditable documents, which the latter
initially agreed to furnish. However, due to the objection of GSIS to the actions of SAT
during the conference, the request went unheeded.
The GSIS, through its President and General Manager Winston F. Garcia, argued that while
it did recognize the authority of COA to constitute a team to conduct a special audit, that
team should not be the SAT, whose members were biased, partial, and hostile and that the
creation of the SAT did not have any force and effect of law because the 1987 Constitution
did not give COA the power to reorganize itself.
The SAT then employed "alternative audit procedures" due GSIS’ refusal to cooperate by
gathering documents from the Office of the Auditor of GSIS, the House of Representatives,
and others. The GSIS filed a petition for prohibition with the CA. Hence, this petition.
Issue:
Whether or not the Special Audit Team was validly constituted
Ruling:
The petition is granted.
As previously discussed, the COA has "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, instrumentalities, including government-owned and
controlled corporations with original charter. x x x."
The Constitution further provides as follows:
The Commission shall have exclusive authority, subject to the
limitations in this Article, to define the scope of its audit and
examination, establish the techniques and methods required therefor,
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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.
The Constitution grants the COA the exclusive authority to define the scope of its audit
and examination, and establish the techniques and methods therefor. Pursuant to this
authority, COA Memorandum No. 2002-053 was promulgated, giving the General Counsel
the authority to deputize a special audit team, viz:
In case the Director, Legal and Adjudication Office for the sector in the
Central Office finds that the transaction/event is a proper subject of
special or fraud audit, he shall recommend the creation of a special
audit team for approval of the General Counsel who shall sign the office
order for the purpose. This memorandum shall constitute authority for
the General Counsel to deputize the team pursuant to the provisions of
Section 40 of P.D. 1445.
This Memorandum, in turn, draws its force from COA Resolution No. 2002-005,90 the
preamble of which states:
WHEREAS, the Constitution (Article IX, D (2) ) invests the Commission
on Audit with the exclusive authority to define the scope of its audit and
examination as well as establish the techniques and methods required
therefor;
WHEREAS, inherent in this authority is the prerogative of COA to
organize its manpower in such a manner that would be appropriate to
cope with its defined scope of audit as well as the methods and
techniques it prescribes or adopts;
WHEREAS, since such scope of audit, methods and techniques vary
from time to time as the exigencies of the situation may demand, COA
is impelled to continually restructure its organization to keep abreast of
the necessary changes;
WHEREAS, invoking the independence and fiscal autonomy which the
Constitution guarantees, COA has in the past successfully effected
various changes in its organizational structure within the limits of its
appropriations; x x x.
The validity of the SAT, therefore, cannot be contested on the grounds claimed by GSIS. If
ever it has a cause for complaint, it should refer to the conduct of the audit, and not to the
validity of the auditing body. And since the COA itself provides for the procedure to contest
such audit, the Court must not interfere. Simplifying it once and for all,
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The increasing pattern of law and legal development has been to entrust "special cases" to
"special bodies" rather than the courts. As we have also held, the shift of emphasis is
attributed to the need to slacken the encumbered dockets of the judiciary and so also, to
leave "special cases" to specialists and persons trained therefor.
BASES CONVERSION AND DEVELOPMENT AUTHORITY (BCDA),
vs. COMMISSION ON AUDIT CHAIRPERSON MA. GRACIA M. PULIDO-TAN,
COMMISSIONER HEIDI L. MENDOZA AND COMMISSIONER ROWENA V.
GUANZON, THE COMMISSIONERS, COMMISSION ON AUDIT
G.R. No. 209219, December 02, 2014, J. Reyes
The case tackles the decision of COA for denying allegation of BCDA that COA gravely
abused its discretion when it when it declared that disbursement made covering the
remuneration pursuant to the extension of CMS is without legal basis. The court ruled in
favor of COA.It is the general policy of the Court to sustain the decisions of administrative
authorities, especially one which is constitutionally-created not only on the basis of the
doctrine of separation of powers but also for their presumed expertise in the laws they are
entrusted to enforce. Findings of administrative agencies are accorded not only respect but
also finality when the decision and order are not tainted with unfairness or arbitrariness that
would amount to grave abuse of discretion. It is only when the COA has acted without or in
excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, that this Court entertains a petition questioning its rulings.
Facts:
BCDA and Design Science, Inc. (DSI) executed the document denominated as
Contract for Construction Management Services (CMS) for the Two-Storey Philippine
Army Officers’ Clubhouse Building, by which DSI was engaged as the construction manager
for the building project to be erected at Fort Bonifacio in Metro Manila. As construction
manager, DSI was to ensure that the project would be completed within the required time
frame, budget and quality standard. The agreed consideration for DSI’s services was
P2,350,500.00, subject to the terms and conditions stated in the CMS agreement. The
contract was for seven months, with the project slated to be completed by November 1,
2001. Members of the CMS team were to serve for different lengths of time within the
project’s five-month construction period and two-month post-construction period.
The project was later extended to December 1, 2001, given a time extension of 30calendar days granted to the project’s main contractor, Kanlaon Construction Enterprise
Company, Inc. (KCECI).Accordingly, the contract with DSI was also extended for one
month. The extension was covered by Supplemental Agreement No. 1signed by BCDA and
DSI, and which provided for a corresponding increase of P560,320.00 in the original
contract amount.
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A consultancy contract review conducted by the COA’s Technical Services Office
(TSO), however, disclosed that the remuneration cost for the contract extension was higher
by P101,200.00 or 39.08% than the remuneration cost that was estimated by COA. The
difference stemmed from the excess extension of one man-month each for the following
DSI personnel: Project Manager, Residential Cost/Quantity/Specs Engineer and
Clerk/Encoder. The TSO then recommended that the amount of P101,200.00 be deducted
from the service fee that was to be paid to DSI.ASB decided in affirmation with TSO and
COA affirmed decision of ASB.
Issue:
Whether or not COA gravely abused its discretion when it declared that
disbursement made covering the remuneration pursuant to the extension of CMS is
without legal basis
Ruling:
No. The Court finds no grave abuse of discretion on the part of the COA in issuing
the assailed decision.
The Court highlights the fact that the project was originally slated to be completed
within seven months. Under the main CMS contract, DSI’s service as construction manager
was to coincide with this period. Per its original plan, DSI intended to retain the five subject
personnel’s services only until the end of the project’s construction phase in month five.
They were then no longer needed during the project’s post-construction phase. The project
was later extended by only one month. In the revised manning schedule prepared by DSI,
it however claimed to need the five subject personnel’s services for two months more, or
until months six and seven of the revised schedule totaling eight (8) months. As the COA
correctly pointed out, no additional compensation should be allowed for the excess of one
man-month each of the five personnel because all services rendered within the original
period were already intended, covered or included in the scope of works in the original
contract. These were then already compensated under the contract dated July 9, 2001.
BCDA’s argument that the disallowed five man-months were not part of the original
scope of works fails to persuade. It offered no clear and sufficient explanation as to how
and why the five members of the CMS team needed to extend working for two more months
than originally intended, when the project itself was extended for only a month. Given such
failure, the Court finds no cogent reason to disturb the COA’s finding that the services of
the five personnel were not needed for the extra one month. Considering that BCDA and
DSI’s supplemental agreement only provided for a one-month project extension, there was
in truth no basis, factual or legal, for the disallowed amounts.
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DSI’s case did not fall under any of these exceptions under the NEDA-IRR and the
main CMS agreement that could justify an increase in remuneration. The original contract
between BCDA and DSI clearly limited the services that may be allowed via a supplemental
agreement to be signed by the parties. The Court reiterates the BCDA’s failure to
sufficiently establish that the subject five man-month extensions were not yet covered by
the original scope of work. It was also not adequately explained why the services of the five
employees became necessary during the post construction phase when under the original
manning schedule, they were to serve only until the termination of the project’s
construction phase.
It is the general policy of the Court to sustain the decisions of administrative
authorities, especially one which is constitutionally-created not only on the basis of the
doctrine of separation of powers but also for their presumed expertise in the laws they are
entrusted to enforce. Findings of administrative agencies are accorded not only respect but
also finality when the decision and order are not tainted with unfairness or arbitrariness
that would amount to grave abuse of discretion. It is only when the COA has acted without
or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, that this Court entertains a petition questioning its rulings.
THE CIVIL SERVICE COMMISSION
ALLEGED LOSS OF VARIOUS BOXES OF COPY PAPER DURING THEIR TRANSFER
FROM THE PROPERTY DIVISION, OFFICE OF ADMINISTRATIVE SERVICES (OAS),
TO THE VARIOUS ROOMS OF THE PHILIPPINE JUDICIAL ACADEMY
A.M. No. 2008-23-SC, November 10, 2014, J. Bersamin
There is grave misconduct when the elements of corruption, clear intent to violate the
law, or flagrant disregard of established rule are present. Dishonesty is defined as a
disposition to lie, cheat, deceive or defraud; untrustworthiness; lack of integrity; lack of
honesty, probity or integrity in principle; lack of fairness and straight forwardness. Both gross
misconduct and dishonesty are grave offenses that are punishable by dismissal even for the
first offense. Conduct prejudicial to the best interest of the service is also classified as a grave
offense under Section 22(t) of the Omnibus Rules Implementing Book V of Executive Order
No. 292 and other pertinent Civil Service laws, with the penalty for the first offense being
suspension for six (6) months and one (1) day to one (1) year, and for the second offense being
dismissal. The Civil Service laws and rules contain no description of what specific acts
constitute the grave offense of conduct prejudicial to the best interest of the service. However,
jurisprudence has been instructive, with the Court having considered the following acts or
omissions as constitutive of conduct prejudicial to the best interest of the service, namely: (a)
misappropriation of public funds; (b) abandonment of office; (c) failure to report back to work
without prior notice; (d) failure to keep public records and property safe; (e) making false
entries in public documents; and (f) falsification of court orders. For making false statements,
committing perjury and stealing the copy paper, Austria and Glor are guilty of grave
misconduct, gross dishonesty, and conduct prejudicial to the best interest of the service. Their
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dismissal from the service is the proper penalty, with forfeiture of retirement benefits, except
accrued leave credits, and perpetual disqualification from reemployment in the Government.
In addition, the records of the case should be referred to the Department of Justice for
investigation with a view to the filing, if warranted, of the appropriate criminal proceedings.
Facts:
Boc’s Trading Co., Inc. delivered 1,300 reams of short copy paper and 1,100 reams of
long copy paper to the Supreme Court intended for the Philippine Judicial Academy
(PHILJA). As instructed by Administrative Officer Ma. Christina M. Recio, the delivery was
initially accepted by Ryan Orcullo, the Property Custodian of the PHILJA, because Supply
Officer II Isidro Austria and Store Keeper IV Lenin Mario Ordoñez, both of the Property
and Supply Section, PHILJA Administrative Office, were then not around. The first batch
of copy paper, consisting of 300 reams long copy paper and 800 reams of short copy paper,
were unloaded under the supervision of Orcullo and brought directly to the stock rooms
and available spaces at the premises of the PHILJA. When Orcullo left for his lunch break,
Ordoñez took over. The rest of the delivery were unloaded from the delivery truck at the
Centennial Building of the Court upon the instruction of Ordoñez.
With the help of Judicial Staff Employee II Elizalde S. Carmona, Ordoñez then
initiated the transfer of the copy paper to the stockroom and the Reproduction Room
(Repro Room) of the Office of the Court Administrator (OCA) in the Supreme Court
Multipurpose Building. In the afternoon of October 23, 2008, Orcullo informed
Administrative Officer Recio that 400 reams of short copy paper and 40 reams of long copy
paper were missing.
Later, Atty. Rodel O. Hernandez formally reported the missing boxes of copy paper
belonging to the PHILJA to PHILJA Vice Chancellor Justice Justo P. Torres, Jr., disclosing
that the preliminary investigation conducted by Administrative Officer Recio and HR
Officer III Ma. Lourdes Pelaus revealed that: (a) Austria had admitted having used the SC’s
Lite Ace van with Plate No. SEF 868 to unload 50 reams of short bond paper contained in
five boxes in Intramuros to pay his outstanding personal debt of P5,000.00; but had denied
any involvement in the loss of the other boxes of copy paper; (b) Ordoñez had claimed that
he supervised and made the transfer of 300 reams in 30 boxes of long bond paper to the
OCA stock room, but the verification had shown only 270 reams in 27 boxes; he had
admitted riding the PHILJA van with Plate No. SFV 785 to deliver the reams of copy paper
to the Repro Room without the proper trip ticket, leaving the boxes of copy paper there
without padlocking the stockrooms; (c) driver Eusebio M. Glor of the Administrative
Division had admitted driving the Lite Ace van with Plate No. SEF 868 to Intramuros with
Austria on board, and had acknowledged facilitating the unlawful transfer of 50 reams of
copy paper in 50 boxes; but had denied knowledge of the remaining missing boxes of copy
paper; and (d) Carmona had driven the PHILJA van with Plate No. SFV 785 upon the
request of Ordoñez without the corresponding trip ticket, and had assisted Ordoñez only
in the transfer of the boxes from the OCA stockroom to the Repro Room.
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After conducting the investigation, the OAS concluded that Ordoñez had failed to
exercise the required diligence in the performance of his task in overseeing the delivery of
the copy paper by not seeing to the safe storage of the copy paper, and by not properly
endorsing the copy paper to his office or to the security guard assigned in the area where
he had left the reams of copy paper. The OAS pointed out that the loss of the copy paper
from the OCA stockroom had been Ordoñez’s fault, because he was the person in charge
of the stockroom; that Ordoñez’s negligence had facilitated the theft of the 50 reams by
Austria and Glor; and that the theft had resulted in the loss of approximately P27, 000.00
by the Court.
The OAS found that Austria and Glor had committed perjury by giving false
statements, as borne outby the incongruence of their initial narration of facts and their
subsequent statements blaming each other as the perpetrator of the theft of the copy paper;
that it was clear that their act of taking the copy paper without authority constituted theft;
that they were liable for serious dishonesty considering that their acts were attended by
certain circumstances that rendered their offense serious, namely: (a) damage and
prejudice to the Government; (b) moral depravity; and (c) employment of fraud or
falsification of official documents in committing the dishonest acts.
Ultimately, the OAS made the following recommendations, to wit:
For having been found guilty of Gross Dishonesty, Grave Misconduct and
Conduct Prejudicial to the Best Interest of the Service, Mesrs. Isidro T. Austria
and Eusebio M. Glor, be meted with the penalty of DISMISSAL from the service
with forfeiture of benefits except accrued leave credits;
II.
For having been found guilty of Gross Neglect of Duty, Mr. Lenin Mario M.
Ordoñez, be meted the penalty of DISMISSAL from the service with forfeiture of
benefits except accrued leave credits;
III.
Mesrs. Austria, Glor and Ordoñez, be directed to restitute to the Court the copy
papers stolen; and
IV.
For driving without a trip ticket to the PHILJA Reproduction Room, Mr. Elizalde
S. Carmona, be WARNED that a repetition of similar acts in the future shall be
dealt with more severely.
I.
Issue:
Whether or not the OAS is correct in finding them administratively liable.
Ruling:
After reviewing the records, the Court is satisfied with and adopt the findings of the
OAS.
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There is grave misconduct when the elements of corruption, clear intent to violate
the law, or flagrant disregard of established rule are present. Dishonesty is defined as a
disposition to lie, cheat, deceive or defraud; untrustworthiness; lack of integrity; lack of
honesty, probity or integrity in principle; lack of fairness and straight forwardness. Both
gross misconduct and dishonesty are grave offenses that are punishable by dismissal even
for the first offense. Conduct prejudicial to the best interest of the service is also classified
as a grave offense under Section 22(t) of the Omnibus Rules Implementing Book V of
Executive Order No. 292 and other pertinent Civil Service laws, with the penalty for the
first offense being suspension for six (6) months and one (1) day to one (1) year, and for the
second offense being dismissal. The Civil Service laws and rules contain no description of
what specific acts constitute the grave offense of conduct prejudicial to the best interest of
the service. However, jurisprudence has been instructive, with the Court having considered
the following acts or omissions as constitutive of conduct prejudicial to the best interest of
the service, namely: (a) misappropriation of public funds; (b) abandonment of office; (c)
failure to report back to work without prior notice; (d) failure to keep public records and
property safe; (e) making false entries in public documents; and (f) falsification of court
orders.
For making false statements, committing perjury and stealing the copy paper,
Austria and Glor are guilty of grave misconduct, gross dishonesty, and conduct prejudicial
to the best interest of the service. Their dismissal from the service is the proper penalty,
with forfeiture of retirement benefits, except accrued leave credits, and perpetual
disqualification from reemployment in the Government. In addition, the records of the case
should be referred to the Department of Justice for investigation with a view to the filing,
if warranted, of the appropriate criminal proceedings.
The fact that Austria meanwhile reached the compulsory retirement age did not
render A.M. No. 2008-23-SC moot, let alone release him from whatever liability he had
incurred while in the active service. The jurisdiction acquired by the Court continues
despite his compulsory retirement. Indeed, the Court retains its jurisdiction to declare a
respondent either innocent or guilty of the charge even in the extreme case of the
respondent’s supervening death. If innocent, the respondent receives the vindication of his
name and integrity by declaring his service in the Government to be well and faithful; if
guilty in anyway, he deserves the sanction just and appropriate for his administrative sin.
Where a respondent is found guilty of a grave offense but the penalty of dismissal is
no longer possible because of his compulsory retirement, the Court has nevertheless
imposed the just and appropriate disciplinary measures and sanctions by decreeing the
forfeiture of all benefits to which he may be entitled, except accrued leave credits, with
prejudice to reemployment in any branch or instrumentality of the Government, including
Government-owned and Government-controlled corporations, and by imposing a fine to
be deducted from the retirement benefits. In Orfila v. Arellano, respondent Human Rights
Resource Management Officer II, being guilty of misconduct, was meted a fine equivalent
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to her salary for six (6) months to be deducted from whatever leave and retirement benefits
or privileges she was entitled to.
Austria is now being held guilty of the grave offenses of gross dishonesty and grave
misconduct, (either of which is punishable by dismissal for the first offense), as well as of
conduct prejudicial to the best interest of the service, but since the penalty of dismissal
could no longer be imposed on him, the Court forfeits all benefits to which he could be
entitled, except accrued leave credits, with prejudice to re-employment in any branch or
instrumentality of the Government, including Government-owned and Governmentcontrolled corporations, and fines him in the amount equivalent to his salary for his last six
(6) months in the service to be deducted from whatever accrued leave benefits remained
for him. Hence, his request in A.M. No. 2014-025-Ret. for the release of his compulsory
retirement benefits under R.A. No. 8291 is denied.
Ordoñez is guilty of gross neglect of duty. Even if he did not have a direct hand in
the theft of the copy paper, his negligence facilitated the theft. As correctly found by the
OAS, he failed to safely store and to endorse the copy paper to the assigned security
personnel; and that he did not also conduct an actual count and make a record of all the
reams of copy paper delivered to his safekeeping. Had he been diligent in performing his
tasks and responsibilities as a Storekeeper IV, Austria and Glor would not have managed
to take out the reams of copy paper out of the stockroom, of which he was then in charge.
Indeed, he so admitted this during the investigation.
Neglect of duty is the failure to give one’s attention to a task expected of him. Gross
neglect is such neglect that, from the gravity of the case or the frequency of instances,
becomes so serious in its character as to endanger or threaten the public welfare. The term
does not necessarily include willful neglect or intentional official wrongdoing. Those
responsible for such act or omission cannot escape the disciplinary power of this Court.
The imposable penalty for gross neglect of duty is dismissal from the service.
The recommended sanction for Cardona is warning. Such sanction is sufficient
considering that Ordoñez merely solicited the help of Cardona in transferring the reams of
copy paper from the OCA stockroom to the Repro Room in the SC New Building. Although
Carmona admittedly used a trip ticket not authorized for the transfer, the Court cannot
appreciate that fact against him because the rule on securing trip tickets was not yet strictly
implemented at that time. At any rate, it nowhere appeared that Carmona directly
participated in the theft.
Jurisdiction
HON. CESAR D. BUENAFLOR vs. JOSE R. RAMIREZ, JR.
G.R. No. 201607 | February 15, 2017 | Bersamin, J.
FACTS:
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On August 27, 2001, Chairman Domingo of the Presidential Anti-Graft Commission (PAGC)
appointed respondent Ramirez, Jr. as Executive Assistant III and concurrently designated
him as Assistant Accountant. On September 28, 2001, Chairman Domingo resigned, and
petitioner Buenaflor succeeded him. The petitioner terminated Ramirez as of the same date
as Chairman Eugenio's resignation on the ground that his tenure had expired by virtue of
the position of Executive Assistant being personal and confidential, and, hence, coterminous with that of the appointing authority.
Believing that his appointment had been contractual in nature, Ramirez sued in the RTC
to declare his dismissal null and void. Buenaflor, represented by the OSG, filed his answer,
wherein he contended, among others, that Ramirez had failed to exhaust administrative
remedies and should have instead filed an administrative complaint in the Civil Service
Commission (CSC). The RTC ruled in favor of Ramirez and declared Buenaflor guilty of
unlawful termination because he had not discharged his burden of proving that Ramirez's
employment was coterminous with that of Chairman Domingo. The CA denied Buenaflor’s
petition for certiorari.
ISSUE: Whether or not the CA committed grave abuse of discretion in not declaring that
the RTC has no jurisdiction to hear and decide the instant civil service related case, which
is under the sole jurisdiction of the CSC. YES.
RULING:
The Regional Trial Court (RTC) has no jurisdiction over a case involving the validity of the
termination of employment of an officer or employee of the Civil Service.
It cannot be disputed that Ramirez's complaint was thereby challenging the validity of his
termination from the service, and that he thereby wanted the RTC to pry into the
circumstances of the termination. Such challenge was outside of the RTC's sphere of
authority. Instead, it was the CSC that was vested by law with jurisdiction to do so.
Disciplinary cases and cases involving personnel actions affecting employees in the
Civil Service, like appointment or separation from the service, are within the
exclusive jurisdiction of the CSC. Indeed, the Constitution vests in the CSC the
jurisdiction over all employees of the Government, including all its branches,
subdivisions, instrumentalities, and agencies, as well as government-owned or
controlled corporations with original charters.
Ramirez was one such employee. The agency in which he had been appointed by Chairman
Domingo was the PAGC, an office established by President Macapagal-Arroyo through
Executive Order No. 1225 as an agency under the Office of the President. His complaint
thus came under the jurisdiction of the CSC. We reiterate that any question regarding the
appointment or separation from the service of a civil servant was lodged in
the CSC as the sole arbiter of controversies relating to the Civil Service.
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It is clarified that the CSC has jurisdiction over a case involving a civil servant if it can be
regarded as equivalent to a labor dispute resoluble under the Labor Code; conversely, the
regular court has jurisdiction if the case can be decided under the general laws, such as
when the case is for the recovery of private debts, or for the recovery of damages due to
slanderous remarks of the employer, or for malicious prosecution of the employees.
The mere fact that the parties are members of the Civil Service should not remove the
controversy from the general jurisdiction of the courts of justice and place them under the
special jurisdiction of the CSC. Jurisdiction over the subject matter is conferred only by the
Constitution or the law; it cannot be acquired through a waiver; it cannot be enlarged by
the omission of the parties; it cannot be conferred by the acquiescence of the court.
MARY LOU GETURBOS TORRES, Petitioner, vs. CORAZON ALMA G. DE LEON, in
her capacity as Secretary General of the Philippine National Red Cross and THE
BOARD OF GOVERNORS of the PHILIPPINE NATIONAL RED CROSS, National
Headquarters, Respondents.
January 18, 2016, G.R. No. 199440
Facts:
When petitioner was the Chapter Administrator of the PNRC, General Santos City Chapter,
the PNRC Internal Auditing Office conducted an audit of the funds and accounts of the
PNRC, General Santos City Chapter for the period November 6, 2002 to March 14, 2006,
and based on the audit report submitted to respondent Corazon Alma G. De Leon (De
Leon), petitioner incurred a "technical shortage" in the amount of P4,306,574.23.
Hence, respondent De Leon in a Memorandum dated January 3, 2007, formally charged
petitioner with Grave Misconduct for violating PNRC Financial Policies on
Oversubscription, Remittances and Disbursement of Funds.
After the completion of the investigation of the case against petitioner, respondent issued
a Memorandum dated June 12, 2007 imposing upon petitioner the penalties of one month
suspension effective July 1-31, 2007 and transfer to the National Headquarters effective
August 1, 2007.
Petitioner filed a motion for reconsideration, but it was denied in a Memorandum dated
June 28, 2007.
Thereafter, petitioner filed a Notice of Appeal addressed to the Board of Governors of the
PNRC through respondent and furnished a copy thereof to the CSC. Petitioner addressed
her appeal memorandum to the CSC and sent copies thereof to the PNRC and the CSC.
Respondent, in a memorandum dated August 13, 2007, denied petitioner's appeal.
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The CSC, on April 21, 2008, promulgated a Resolution dismissing petitioner's appeal and
imposing upon her the penalty of dismissal from service. Petitioner filed a motion for
reconsideration with the CSC, but the same was denied.
Thus, petitioner filed a petition for review under Rule 43 with the CA, and in its assailed
Decision dated June 30, 2011, the CA denied the said petition. Petitioner's motion for
reconsideration was likewise denied on October 6, 2011.
Ruling:
As ruled by this Court in Liban, et al. v. Gordon, the PNRC, although not a GOCC, is sui
generis in character, thus, requiring this Court to approach controversies involving the
PNRC on a case-to-case basis. As discussed:
A closer look at the nature of the PNRC would show that there is none like it not just in
terms of structure, but also in terms of history, public service and official status accorded
to it by the State and the international community. There is merit in PNRC's contention
that its structure is sui generis.
xxxx
National Societies such as the PNRC act as auxiliaries to the public authorities of their own
countries in the humanitarian field and provide a range of services including disaster relief
and health and social programmes.
The International Federation of Red Cross (IFRC) and Red Crescent Societies (RCS)
Position Paper, submitted by the PNRC, is instructive with regard to the elements of the
specific nature of the National Societies such as the PNRC, to wit:
National Societies, such as the Philippine National Red Cross and its sister Red Cross and
Red Crescent Societies, have certain specificities deriving from the 1949 Geneva Convention
and the Statutes of the International Red Cross and Red Crescent Movement (the
Movement). They are also guided by the seven Fundamental Principles of the Red Cross
and Red Crescent Movement: Humanity, Impartiality, Neutrality, Independence,
Voluntary Service, Unity and Universality.
A National Society partakes of a sui generis character. It is a protected component of the
Red Cross movement under Articles 24 and 26 of the First Geneva Convention, especially
in times of armed conflict. These provisions require that the staff of a National Society shall
be respected and protected in all circumstances. Such protection is not ordinarily afforded
by an international treaty to ordinary private entities or even non-governmental
organizations (NGOs). This sui generis character is also emphasized by the Fourth Geneva
Convention which holds that an Occupying Power cannot require any change in the
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personnel or structure of a National Society. National societies are therefore organizations
that are directly regulated by international humanitarian law, in contrast to other ordinary
private entities, including NGOs.
xxxx
In addition, National Societies are not only officially recognized by their public authorities
as voluntary aid societies, auxiliary to the public authorities in the humanitarian field, but
also benefit from recognition at the International level. This is considered to be an element
distinguishing National Societies from other organizations (mainly NGOs) and other forms
of humanitarian response.
x x x No other organization belongs to a world-wide Movement in which all Societies have
equal status and share equal responsibilities and duties in helping each other. This is
considered to be the essence of the Fundamental Principle of Universality.
Furthermore, the National Societies are considered to be auxiliaries to the public
authorities in the humanitarian field. x x x.
The auxiliary status of [a] Red Cross Society means that it is at one and the same time a
private institution and a public service organization because the very nature of its work
implies cooperation with the authorities, a link with the State. In carrying out their major
functions, Red Cross Societies give their humanitarian support to official bodies, in general
having larger resources than the Societies, working towards comparable ends in a given
sector.
x x x No other organization has a duty to be its government's humanitarian partner while
remaining independent.
It is in recognition of this sui generis character of the PNRC that R.A. No. 95 has remained
valid and effective from the time of its enactment in March 22, 1947 under the 1935
Constitution and during the effectivity of the 1973 Constitution and the 1987 Constitution.
The PNRC Charter and its amendatory laws have not been questioned or challenged on
constitutional grounds, not even in this case before the Court now.
xxxx
By requiring the PNRC to organize under the Corporation Code just like any other private
corporation, the Decision of July 15, 2009 lost sight of the PNRC's special status under
international humanitarian law and as an auxiliary of the State, designated to assist it in
discharging its obligations under the Geneva Conventions. Although the PNRC is called to
be independent under its Fundamental Principles, it interprets such independence as
inclusive of its duty to be the government's humanitarian partner. To be recognized in the
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International Committee, the PNRC must have an autonomous status, and carry out its
humanitarian mission in a neutral and impartial manner.
However, in accordance with the Fundamental Principle of Voluntary Service of National
Societies of the Movement, the PNRC must be distinguished from private and profitmaking entities. It is the main characteristic of National Societies that they "are not inspired
by the desire for financial gain but by individual commitment and devotion to a
humanitarian purpose freely chosen or accepted as part of the service that National
Societies through its volunteers and/or members render to the Community."
The PNRC, as a National Society of the International Red Cross and Red Crescent
Movement, can neither "be classified as an instrumentality of the State, so as not to lose its
character of neutrality" as well as its independence, nor strictly as a private corporation
since it is regulated by international humanitarian law and is treated as an auxiliary of the
State.
Based on the above, the sui generis status of the PNRC is now sufficiently established.
Although it is neither a subdivision, agency, or instrumentality of the government, nor a
government-owned or -controlled corporation or a subsidiary thereof, as succinctly
explained in the Decision of July 15, 2009, so much so that respondent, under the Decision,
was correctly allowed to hold his position as Chairman thereof concurrently while he
served as a Senator, such a conclusion does not ipso facto imply that the PNRC is a "private
corporation" within the contemplation of the provision of the Constitution, that must be
organized under the Corporation Code. As correctly mentioned by Justice Roberto A. Abad,
the sui generis character of PNRC requires us to approach controversies involving the
PNRC on a case-to-case basis.4
In this particular case, the CA did not err in ruling that the CSC has jurisdiction over the
PNRC because the issue at hand is the enforcement of labor laws and penal statutes, thus,
in this particular matter, the PNRC can be treated as a GOCC, and as such, it is within the
ambit of Rule I, Section 1 of the Implementing Rules of Republic Act 67135, stating that:
Section 1. These Rules shall cover all officials and employees in the government, elective
and appointive, permanent or temporary, whether in the career or non-career service,
including military and police personnel, whether or not they receive compensation,
regardless of amount.
Thus, having jurisdiction over the PNRC, the CSC had authority to modify the penalty and
order the dismissal of petitioner from the service. Under the Administrative Code of 1987,
as well as decisions of this Court, the CSC has appellate jurisdiction on administrative
disciplinary cases involving the imposition of a penalty of suspension for more than thirty
(30) days, or fine in an amount exceeding thirty (30) days salary. The CA, therefore, did not
err when it agreed with the CSC that the latter had appellate jurisdiction, thus:
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The Court cites with approval the disquisition of the CSC in this regard:
The Commission is fully aware that under the Civil Service Law and rules and
jurisprudence, it has appellate jurisdiction only on administrative disciplinary cases
involving the imposition of a penalty of suspension for more than thirty (30) days, or fine
in an amount exceeding thirty (30) days' salary.
In the instant case, although the decision appealed from states that Torres was imposed
the penalty of "one month" suspension from the service, it is unequivocally spelled out
therein that the period of her suspension is from July 1-31, 2007." This specifically written
period unmistakably indicates that Torres was actually imposed the penalty of thirty-one
(31) days and not merely thirty (30) days or one (1) month.
Petitioner submits that the actual duration of the period of her suspension was only thirty
(30) days since July 1, 2007 was a legal holiday, it being a Sunday. This submission, however,
is flawed considering that she was imposed the penalty of "One Month Suspension effective
July 1-31, 2007" or for a period of thirty-one (31) days.
Even granting that petitioner was imposed the penalty of suspension for thirty (30) days
only, it should be noted that she was also imposed another penalty of "Transfer to the NHQ
effective August 01, 2007." Hence, the CSC would still have appellate jurisdiction.8
Neither can it be considered that the CSC had lost its appellate jurisdiction because, as
claimed by petitioner, she voluntarily served the sentence of one month suspension and
transfer of assignment before her counsel filed the notice of appeal, hence, the decision of
the PNRC was already final even before a notice of appeal was filed with the CSC. The CA
was correct in finding that petitioner's appeal was properly and timely made with the CSC
under the Uniform Rules on Administrative Cases in the Civil Service (URACCS). It ruled:
As enunciated in the cases cited by petitioner, a decision becomes final even before the
lapse of the fifteen-day period to appeal when the defendant voluntarily submits to the
execution of the sentence. In the present case, however, it cannot be said that she
voluntarily served her penalty in view of the fact that she appealed therefrom. Moreover,
the service of the penalty is pursuant to Section 47 of the Uniform Rules on Administrative
Cases in the Civil Service (URACCS) which reads:
Section 47. Effect of filing. - An appeal shall not stop the decision from being executory,
and in case the penalty is suspension or removal, the respondent shall be considered as
having been under preventive suspension during the pendency of the appeal, in the event
he wins the appeal.
Petitioner's claim that the Notice of Appeal and the Appeal Memorandum were filed with
the PNRC and not with the CSC deserves scant consideration. Section 43 of the URACCS
pertinently provides:
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Section 43. Filing of Appeals. xxx
A notice of appeal including the appeal memorandum shall be filed with the appellate
authority, copy furnished the disciplining office. The latter shall submit the records of the
case, which shall be systematically and chronologically arranged, paged and securely bound
to prevent loss, with its comment, within fifteen (15) days, to the appellate authority.
An examination of the Notice of Appeal shows that the same was addressed to the PNRC
and copy furnished the CSC. On the other hand, an examination of the Appeal
Memorandum shows that the same was addressed to the CSC and copies thereof were sent
to both the PNRC and the CSC. It is thus clear that a copy of the Notice of Appeal was
furnished the CSC and the Appeal Memorandum was filed with it. While the rules required
that the notice of appeal including the appeal memorandum shall be filed with the CSC, it
is undeniable that furnishing a copy of the Notice of Appeal with the CSC and filing with it
the Appeal Memorandum substantially complied with the rule. The important thing is that
the Appeal Memorandum was clearly addressed to the CSC.9
Anent the issue that respondents' Comment filed before the CA lacks verification and a
certificate of non-forum shopping, such is inconsequential because a comment is not an
initiatory pleading but a responsive pleading. [T]he required certification against forum
shopping is intended to cover an "initiatory pleading," meaning an "incipient application
of a party asserting a claim for relief."10 A comment, required by an appellate tribunal, to a
petition filed with it is not a pleading but merely an expression of the views and
observations of the respondent for the purpose of giving the court sufficient information
as to whether the petition is legally proper as a remedy to the acts complained of.11
Based on the above disquisitions, all other issues presented by petitioner are rendered
immaterial.
ALBERTO PAT-OG, SR. vs. CIVIL SERVICE COMMISSION
G.R. No. 198755, June 5, 2013
J.Mendoza
When a public school teacher is subject of an administrative action, concurrent
jurisdiction exists in the Civil Service Commission (CSC), the Department of Education
(DepEd) and the Board of Professional Teachers-Professional Regulatory Commission
(PRC). Hence, the body that first takes cognizance of the complaint shall exercise
jurisdiction to the exclusion of the others.
Facts:
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Alberto Pat-og is a MAPEH teacher of Antadao National High School and Robert Bang-on,
then a second year high school student from the same school. Bang-on filed a complaint
against Pat-og with the Civil Service Commission-Cordillera Administrative Region (CSCCAR). Bang-on claimed that he was punched by Pat-og in the stomach after failing to follow
his instructions to form two lines and he was hospitalized, as evidenced by a medico-legal
certificate, for contusion hemotoma in the hypogastric area. Bang-on also filed a criminal
case against Pat-og with the RTC for Less Serious Physical Injuries.
Pat-og contended that he only scolded the students who failed to follow his instructions to
form two lines. He also presented his witnesses, a teacher from another school, who stated
that Pat-og is a person of good moral standing and a student who said that Pat-og was not
angry when the incident happened.
The RTC rendered its judgment in the criminal case and found Pat-og guilty of the offense
of slight physical injury. He was meted the penalty of imprisonment from eleven (11) to
twenty (20) days. Following his application for probation, the decision became final and
executory and judgment was entered. The CSC-CAR found Pat-og guilty of Simple
Misconduct but due to the gravity of the injury inflicted to Bang-on, he was penalized of
suspension of six months without pay.
In the appeal with the CSC, it affirmed the decision of the CSC-CAR but modified the
penalty which was dismissal from service. The CSC noted that Pat-og did not question but,
instead, fully acquiesced in his conviction in the criminal case for slight physical injury,
which was based on the same set of facts and circumstances, and involved the same parties
and issues. It, thus, considered his prior criminal conviction as evidence against him in the
administrative case.
Pat-og then appealed with the CA and questioned the jurisdiction of the CSC over the case
and claimed that it should have been heard by a committee pursuant to the Magna Carta
for Public Teachers. The CA affirmed the decision of the CSC. Hence, this petition.
Issue:
Whether or not the CSC has jurisdiction over Pat-og’s case
Ruling:
Pat-og contends that Section 9 of Republic Act (R.A.) No. 4670, otherwise known as the
Magna Carta for Public School Teachers, provides that administrative charges against a
public school teacher shall be heard initially by a committee constituted under said section.
As no committee was ever formed, the petitioner posits that he was denied due process and
that the CSC did not have the jurisdiction to hear and decide his administrative case. He
further argues that notwithstanding the fact that the issue of jurisdiction was raised for the
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first time on appeal, the rule remains that estoppel does not confer jurisdiction on a
tribunal that has no jurisdiction over the cause of action or subject matter of the case.
The Court cannot sustain his position.
The petitioner’s argument that the administrative case against him can only proceed under
R.A. No. 4670 is misplaced.
In Puse v. Santos-Puse, it was held that the CSC, the Department of Education (DepEd) and
the Board of Professional Teachers-Professional Regulatory Commission (PRC) have
concurrent jurisdiction over administrative cases against public school teachers.
Under Article IX-B of the 1987 Constitution, the CSC is the body charged with the
establishment and administration of a career civil service which embraces all branches and
agencies of the government. Executive Order (E.O.) No. 292 (the Administrative Code of
1987) and Presidential Decree (P.D.) No. 807 (the Civil Service Decree of the
Philippines) expressly provide that the CSC has the power to hear and decide
administrative disciplinary cases instituted with it or brought to it on appeal. Thus, the
CSC, as the central personnel agency of the government, has the inherent power to
supervise and discipline all members of the civil service, including public school teachers.
Concurrent jurisdiction is that which is possessed over the same parties or subject matter
at the same time by two or more separate tribunals. When the law bestows upon a
government body the jurisdiction to hear and decide cases involving specific matters, it is
to be presumed that such jurisdiction is exclusive unless it be proved that another body is
likewise vested with the same jurisdiction, in which case, both bodies have concurrent
jurisdiction over the matter.
Where concurrent jurisdiction exists in several tribunals, the body that first takes
cognizance of the complaint shall exercise jurisdiction to the exclusion of the others. In
this case, it was CSC which first acquired jurisdiction over the case because the complaint
was filed before it. Thus, it had the authority to proceed and decide the case to the exclusion
of the DepEd and the Board of Professional Teachers.
In CSC v. Alfonso, it was held that special laws, such as R.A. No. 4670, do not divest the
CSC of its inherent power to supervise and discipline all members of the civil service,
including public school teachers. Pat-og, as a public school teacher, is first and foremost, a
civil servant accountable to the people and answerable to the CSC for complaints lodged
against him as a public servant. To hold that R.A. No. 4670 divests the CSC of its power to
discipline public school teachers would negate the very purpose for which the CSC was
established and would impliedly amend the Constitution itself.
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DENNIS A. B. FUNA vs. THE CHAIRMAN, CIVIL SERVICE COMMISSION,
FRANCISCO T. DUQUE III, EXECUTIVE SECRETARY LEANDRO R. MENDOZA,
OFFICE OF THE PRESIDENT
G.R. No. 191672, November 25, 2014, J. Lucas P. Bersamin
Funa filed the instant petition questioning the designation of Duque as a member of
the Board of Directors or Trustees of the GSIS, PHIC, ECC and HDMF for being violative of
Sections 1 and 2 of Article IX-A of the 1987 Constitution which prohibits the Chairmen and
Members of the Constitutional Commissions from holding any other office or employment
during their tenure. Ruling in favor of Funa the SC ruled that Section 14, Chapter 3, Title I-A,
Book V of EO 292 is clear that the CSC Chairman’s membership in a governing body is
dependent on the condition that the functions of the government entity where he will sit as
its Board member must affect the career development, employment status, rights, privileges,
and welfare of government officials and employees.
The concerned GOCCs are vested by their respective charters with various powers and
functions to carry out the purposes for which they were created. While powers and functions
associated with appointments, compensation and benefits affect the career development,
employment status, rights, privileges, and welfare of government officials and employees, the
concerned GOCCs are also tasked to perform other corporate powers and functions that are
not personnel-related. All of these powers and functions, whether personnel-related or not,
are carried out and exercised by the respective Boards of the concerned GOCCs. Hence, when
the CSC Chairman sits as a member of the governing Boards of the concerned GOCCs, he
may exercise these powers and functions, which are not anymore derived from his position as
CSC Chairman. Such being the case, the designation of Duque was unconstitutional.
Facts:
On January 11, 2010, then President Gloria Macapagal-Arroyo appointed respondent
Duque as Chairman of the CSC. The Commission on Appointments confirmed Duque’s
appointment on February 3, 2010. Thereafter, on February 22, 2010, President Arroyo issued
EO 864 which designated Duque as an Ex-Officio member of the Board of Trustees of the
GSIS, ECC and the HDMF and the Board of Directors of the PHILHEALTH pursuant to
Section 14, Chapter 3, Title I-A, Book V of EO 292 also known as the Administrative Code
of 1987.
Subsequently, petitioner Dennis A.B. Funa, in his capacity as taxpayer, concerned
citizen and lawyer, filed the instant petition challenging the constitutionality of EO 864, as
well as Section 14, Chapter 3, Title I-A, Book V of EO 292 and the designation of Duque as
a member of the Board of Directors or Trustees of the GSIS, PHIC, ECC and HDMF for
being clear violations of Section 1 and Section 2, Article IX-A of the 1987 Constitution.
Funa asserts that EO 864 and Section 14, Chapter 3, Title I-A, Book V of EO 292
violate the independence of the CSC, which was constitutionally created to be protected
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from outside influences and political pressures due to the significance of its government
functions. He further asserts that such independence is violated by the fact that the CSC is
not a part of the Executive Branch of Government while the concerned GOCCs are
considered instrumentalities of the Executive Branch of the Government. In this situation,
the President may exercise his power of control over the CSC considering that the GOCCs
in which Duque sits as Board member are attached to the Executive Department.
Funa further argues that EO 864 and Section 14, Chapter 3, Title I-A, Book V of EO
292 violate the prohibition imposed upon members of constitutional commissions from
holding any other office or employment. A conflict of interest may arise in the event that a
Board decision of the GSIS, PHILHEALTH, ECC and HDMF concerning personnel-related
matters is elevated to the CSC considering that such GOCCs have original charters, and
their employees are governed by CSC laws, rules and regulations.
Respondents on the other hand argue that the prohibition against holding any other
office or employment under Section 2, Article IX-A of the 1987 Constitution does not cover
positions held without additional compensation in ex officio capacities. Relying on the
pronouncement in Civil Liberties Union v. Executive Secretary, they assert that since the
1987 Constitution, which provides a stricter prohibition against the holding of multiple
offices by executive officials, allows them to hold positions in ex officio capacities, the same
rule is applicable to members of the Constitutional Commissions. Moreover, the mandatory
tenor of Section 14, Chapter 3, Title I-A, Book V of EO 292 clearly indicates that the CSC
Chairman’s membership in the governing bodies mentioned therein merely imposes
additional duties and functions as an incident and necessary consequence of his
appointment as CSC Chairman.
Issue:
Does the designation of Duque as member of the Board of Directors or Trustees of
the GSIS, PHILHEALTH, ECC and HDMF, in an ex officio capacity, impair the
independence of the CSC and violate the constitutional prohibition against the holding of
dual or multiple offices for the Members of the Constitutional Commissions?
Ruling:
Yes, it does.
The Court partially grants the petition. The Court upholds the constitutionality of
Section 14, Chapter 3, Title I-A, Book V of EO 292, but declares unconstitutional EO 864
and the designation of Duque in an ex officio capacity as a member of the Board of Directors
or Trustees of the GSIS, PHILHEALTH, ECC and HDMF.
The underlying principle for the resolution of the present controversy rests on the
correct application of Section 1 and Section 2, Article IX-A of the 1987 Constitution, which
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provide:
Section 1. The Constitutional Commissions, which shall be independent, are the
Civil Service Commission, the Commission on Elections, and the Commission on Audit.
Section 2. No Member of a Constitutional Commission shall, during his tenure, hold
any other office or employment. Neither shall he engage in the practice of any profession
or in the active management or control of any business which in any way may be affected
by the functions of his office, nor shall he be financially interested, directly or indirectly, in
any contract with, or in any franchise or privilege granted by the Government, any of its
subdivisions, agencies, or instrumentalities, including government-owned or controlled
corporations or their subsidiaries.
Section 1, Article IX-A of the 1987 Constitution expressly describes all the
Constitutional Commissions as “independent.” Although their respective functions are
essentially executive in nature, they are not under the control of the President of the
Philippines in the discharge of such functions. Each of the Constitutional Commissions
conducts its own proceedings under the applicable laws and its own rules and in the
exercise of its own discretion. Its decisions, orders and rulings are subject only to review
on certiorari by the Court as provided by Section 7, Article IX-A of the 1987
Constitution. To safeguard the independence of these Commissions, the 1987 Constitution,
among others, imposes under Section 2, Article IX-A of the Constitution certain inhibitions
and disqualifications upon the Chairmen and members to strengthen their integrity, to wit:
(a) Holding any other office or employment during their tenure;
(b) Engaging in the practice of any profession;
(c) Engaging in the active management or control of any business which in any way
may be affected by the functions of his office; and
(d) Being financially interested, directly or indirectly, in any contract with, or in any
franchise or privilege granted by the Government, any of its subdivisions, agencies
or instrumentalities, including government-owned or –controlled corporations or
their subsidiaries.
The issue herein involves the first disqualification abovementioned, which is the
disqualification from holding any other office or employment during Duque’s tenure as
Chairman of the CSC. The Court finds it imperative to interpret this disqualification in
relation to Section 7, paragraph (2), Article IX-B of the Constitution and the Court’s
pronouncement in Civil Liberties Union v. Executive Secretary. Section 7, paragraph (2),
Article IX-B reads:
Section 7. xxx
Unless otherwise allowed by law or the primary functions of his position, no
appointive official shall hold any other office or employment in the Government or any
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subdivision, agency or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries.
In Funa v. Ermita, where Funa challenged the concurrent appointment of Elena H.
Bautista as Undersecretary of the Department of Transportation and Communication and
as Officer-in-Charge of the Maritime Industry Authority, the Court reiterated the
pronouncement in Civil Liberties Union v. The Executive Secretary on the intent of the
Framers on the foregoing provision of the 1987 Constitution, to wit:
Thus, while all other appointive officials in the civil service are allowed to hold other
office or employment in the government during their tenure when such is allowed by law
or by the primary functions of their positions, members of the Cabinet, their deputies and
assistants may do so only when expressly authorized by the Constitution itself. In other
words, Section 7, Article IX-B is meant to lay down the general rule applicable to all elective
and appointive public officials and employees, while Section 13, Article VII is meant to be
the exception applicable only to the President, the Vice-President, Members of the Cabinet,
their deputies and assistants.
Being an appointive public official who does not occupy a Cabinet position (i.e.,
President, the Vice-President, Members of the Cabinet, their deputies and assistants),
Duque was thus covered by the general rule enunciated under Section 7, paragraph (2),
Article IX-B. He can hold any other office or employment in the Government during his
tenure if such holding is allowed by law or by the primary functions of his position.
The term ex officio means “from office; by virtue of office.” It refers to an “authority
derived from official character merely, not expressly conferred upon the individual
character, but rather annexed to the official position.” Ex officio likewise denotes an “act
done in an official character, or as a consequence of office, and without any other
appointment or authority other than that conferred by the office.” An ex officio member of
a board is one who is a member by virtue of his title to a certain office, and without further
warrant or appointment.
The ex officio position being actually and in legal contemplation part of the principal
office, it follows that the official concerned has no right to receive additional compensation
for his services in the said position. The reason is that these services are already paid for
and covered by the compensation attached to his principal office.
Section 3, Article IX-B of the 1987 Constitution describes the CSC as the central
personnel agency of the government and is principally mandated to establish a career
service and adopt measures to promote morale, efficiency, integrity, responsiveness,
progressiveness, and courtesy in the civil service; to strengthen the merit and rewards
system; to integrate all human resources development programs for all levels and ranks;
and to institutionalize a management climate conducive to public accountability.
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Section 14, Chapter 3, Title I-A, Book V of EO 292 is clear that the CSC Chairman’s
membership in a governing body is dependent on the condition that the functions of the
government entity where he will sit as its Board member must affect the career
development, employment status, rights, privileges, and welfare of government officials
and employees. Based on this, the Court finds no irregularity in Section 14, Chapter 3, Title
I-A, Book V of EO 292 because matters affecting the career development, rights and welfare
of government employees are among the primary functions of the CSC and are
consequently exercised through its Chairman. The CSC Chairman’s membership therein
must, therefore, be considered to be derived from his position as such. Accordingly, the
constitutionality of Section 14, Chapter 3, Title I-A, Book V of EO 292 is upheld.
However, there is a need to determine further whether Duque’s designation as
Board member of the GSIS, PHILHEALTH, ECC and HDMF is in accordance with the 1987
Constitution and the condition laid down in Section 14, Chapter 3, Title I-A, Book V of EO
292.
The GSIS, PHILHEALTH, ECC and HDMF are vested by their respective charters
with various powers and functions to carry out the purposes for which they were created.
While powers and functions associated with appointments, compensation and benefits
affect the career development, employment status, rights, privileges, and welfare of
government officials and employees, the GSIS, PHILHEALTH, ECC and HDMF are also
tasked to perform other corporate powers and functions that are not personnel-related. All
of these powers and functions, whether personnel-related or not, are carried out and
exercised by the respective Boards of the GSIS, PHILHEALTH, ECC and HDMF. Hence,
when the CSC Chairman sits as a member of the governing Boards of the GSIS,
PHILHEALTH, ECC and HDMF, he may exercise these powers and functions, which are
not anymore derived from his position as CSC Chairman, such as imposing interest on
unpaid or unremitted contributions, issuing guidelines for the accreditation of health care
providers, or approving restructuring proposals in the payment of unpaid loan
amortizations.
The Court also notes that Duque’s designation as member of the governing Boards
of the GSIS, PHILHEALTH, ECC and HDMF entitles him to receive per diem, a form of
additional compensation that is disallowed by the concept of an ex officio position by virtue
of its clear contravention of the proscription set by Section 2, Article IX-A of the 1987
Constitution. This situation goes against the principle behind an ex officio position, and
must, therefore, be held unconstitutional.
Apart from violating the prohibition against holding multiple offices, Duque’s
designation as member of the governing Boards of the GSIS, PHILHEALTH, ECC and
HDMF impairs the independence of the CSC. Under Section 17, Article VII of the
Constitution, the President exercises control over all government offices in the Executive
Branch.
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As provided in their respective charters, PHILHEALTH and ECC have the status of
a government corporation and are deemed attached to the Department of Health and the
Department of Labor, respectively. On the other hand, the GSIS and HDMF fall under the
Office of the President. The corporate powers of the GSIS, PHILHEALTH, ECC and HDMF
are exercised through their governing Boards, members of which are all appointed by the
President of the Philippines. Undoubtedly, the GSIS, PHILHEALTH, ECC and HDMF and
the members of their respective governing Boards are under the control of the President.
As such, the CSC Chairman cannot be a member of a government entity that is under the
control of the President without impairing the independence vested in the CSC by the 1987
Constitution.
THE COMMISSION OF ELECTIONS
Powers
GLENN A. CHONG, et al. vs. SENATE OF THE PHILIPPINES, et al.
G.R. No. 217725 | May 31, 2016 | Reyes, J.
FACTS:
The RA 8436 of 1997, which authorizes the adoption of an automated election
system (AES), was amended by RA 9369. Of particular relevance in this case are those
Sections of the law which calls for the creation of the Advisory Council (AC) and the
Technical Evaluation Committee (TEC).
In Roque, Jr., et al. v. COMELEC, et al., the Court stated that the AC is to recommend,
among other functions, the most appropriate, secure, applicable and cost-effective
technology to be applied to the AES; while the TEC is tasked to certify, through an
established international certification committee, not later than three months before the
elections, by categorically stating that the AES, inclusive of its hardware and software
components, is operating properly and accurately based on defined and documented
standards.
Nevertheless, almost eight years after the passage of RA 9369, and almost six years
after the conclusion of the 2010 elections, and just several months before the 2016 elections,
Chong and Ang Kapatiran Party (petitioners) came to the SC to assail the constitutionality
of the creation of the AC and the TEC.
ISSUE: Whether the sections of RA 8436/9369 which provides for the creation of an
Advisory Council and a Technical Evaluation Committee are unconstitutional. NO.
RULING:
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A careful examination of the assailed provisions would reveal that the AC and the TEC's
functions are merely advisory and recommendatory in nature.
The AC's primordial task is to recommend the most appropriate technology to the
AES, while the TEC's sole function is to certify that the AES, including its hardware and
software components, is operating properly, securely and accurately, in accordance with
the provisions of law.
Evidently, the AC and the TEC were created to aid the COMELEC in fulfilling its
mandate and authority to use an effective AES for free, orderly, honest, peaceful, credible
and informed elections. The actions of the AC and the TEC neither bind nor prohibit
the COMELEC from enforcing and administering election laws.
More so, the AC and the TEC are not permanent in nature. This is evident in Secs. 8
and 11 of RA 8436, as amended. The AC shall be convened not later than 18 months prior to
the next scheduled electoral exercise, and deactivated six months after completion of
canvassing, while the TEC shall be immediately convened within 10 days after the effectivity
of RA 9369; however, the TEC shall make the certification not later than three months
before the date of the electoral exercises.
Lastly, the petitioners have failed to discharge the burden of overcoming the
presumption that the assailed provisions are valid and constitutional since they failed to
present substantial evidence to support their claim.
USEC. AUSTERE A. PANADERO and REGIONAL DIRECTOR RENE K. BURDEOS,
both of the DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT (DILG) vs.
COMMISSION ON ELECTIONS (COMELEC)
USEC.PANADERO AND RD BURDEOS, BOTH OF DILG vs. COMELEC AND
MOHAMMAD EXCHAN GABRIEL LIMBONA
MANGONDAYA ASUM TAGO vs. COMELEC AND LIMBONA
G.R. No. 215548. G.R. No. 215726. G.R. No.216158 | April 5, 2016 | Reyes, J.
FACTS:
In 2009, the Office of the Deputy Ombudsman for Luzon found Mohammad Exchan
Gabriel Limbona (Limbona) to be guilty of grave misconduct, oppression and conduct
prejudicial to the best interest of the service which he committed while he was still the
Chairman of Brgy. Kalanganan Lower, Pantar, Lanao del Norte, andin relation to the killing
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of the former Municipal Vice Mayor of Pantar. Limbona was meted the penalty of dismissal
from public service.
In 2013, the Ombudsman issued an Order forwarding to the DILG Secretary a copy
of its Decision against Limbona for implementation, as it had become final and executory
in 2011. The order indicated that Limbona had been elected as Municipal Mayor of Pantar.
Acting on the order, Usec. Panadero issued, on April 3, 2014, a Memorandum directing RD
Burdeos, as the RD of the DILG Region X Office, to cause the immediate implementation
of the Ombudsman decision insofar as Limbona was concerned.
On April 21, 2014, however, RD Burdeos reported that he received from Limbona’s
counsel a copy of the Resolution issued by the COMELEC First Division dismissing the
petition for disqualification and declaring Limbona to be still qualified to run for public
office in the 2013 elections despite the Ombudsman’s Order in 2009.
On April 30, 2014, Usec. Panadero issued a Memorandum, addressed to RD Burdeos,
directing him to proceed with the implementation of the Ombudsman's decision,
explaining that the decision of the Ombudsman is executory pending appeal and may not
be stayed by the filing of an appeal or the issuance of an injunctive writ.
On May 5, 2014, the DILG served the dismissal order of Limbona, which led to his
removal from office and the assumption to the mayoralty of then Vice Mayor Tago.
Displeased by the DILG's actions, Limbona filed with the COMELEC a petition to cite the
petitioners for indirect contempt. The COMELEC En Banc issued its Resolution citing the
petitioners in indirect contempt, explaining that the violation of the final and executory
resolution of the COMELEC, where it ruled that the Ombudsman Decision cannot be the
cause of the disqualification or ouster of Limbona, constitutes contempt. No penalty for
the contempt was provided in the COMELEC resolution.
Among the petitioners, only Tago filed a motion for reconsideration (MR) before
the COMELEC en banc, assailing the above resolution. In its Resolution of the MR, the
COMELEC en banc denied the same and imposed penalties upon the petitioners for
indirect contempt, and ordered their arrest.
ISSUE: Whether or not the COMELEC committed grave abuse of discretion amounting to
lack or excess of jurisdiction in finding the petitioners in contempt of court and imposing
the penalties of fine and imprisonment. YES.
RULING:
The COMELEC is vested with the power to punish for contempt. Article VII, Section
52(e) of The Omnibus Election Code expressly gives it the power to “[p]unish contempts
provided for in the Rules of Court in the same procedure and with the same penalties
provided therein. Any violation of any final and executory decision, order or ruling of the
Commission shall constitute contempt thereof.”
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For the COMELEC En Banc, the petitioners' contemptuous act pertained to their
alleged “violation of the final and executory resolution of the [COMELEC].” Usec. Panadero
and RD Burdeos, in particular, dismissed Limbona from his post as Municipal Mayor of
Pantar on the basis of the Ombudsman's decision finding him guilty in an administrative
case. As the COMELEC already ruled that the Ombudsman's decision failed to disqualify
Limbona from the mayoralty post, the dismissal of the latter and Tago's resulting
assumption to office were blatant disobedience of a legal order or resolution of the
COMELEC. The contempt was then premised on Section 2(b) of Rule 29 of the COMELEC
Rules of Procedure, i.e., disobedience of or resistance to a lawful writ, process, order,
judgment or command of the Commission or any of its Divisions, or injunction or
restraining order granted by it.
The petitioners are not guilty of indirect contempt.
In serving the dismissal order of Limbona and allowing Tago to assume the vacated
mayoralty post, the petitioners could not be said to have disobeyed the resolutions of the
COMELEC in the disqualification case, much less did so, in a manner that was
characterized with contempt against the COMELEC. Contrary to the COMELEC’s stance,
the COMELEC’s Resolution and the Ombudsman's Decision involved two distinct issues,
such that the implementation of one agency's ruling would not necessarily result in a
violation of the other.
To be specific, the COMELEC’s resolution was instituted to question the
qualification of Limbona as a candidate for the 2013 elections, an issue that was well within
the jurisdiction of the COMELEC. In order to properly resolve such issue, and given the
arguments that were raised to seek his disqualification, the COMELEC was called upon to
refer to Section 40 of the LGC, which reads:
Sec. 40.Disqualifications. – The following persons are disqualified from
running from any elective local position: xxx (b) Those removed from office
as a result of an administrative case;
Notwithstanding Section 40(b) of the LGC, the COMELEC decided in favor of
Limbona's qualification only for the reason that he was not removed from office prior to
2013, but was able to complete his term despite the Ombudsman case that was filed against
him. The Court underscores the fact that the COMELEC's decision to allow
Limbona's candidacy was not a disregard of the Ombudsman's Decision. There was
instead a clear recognition of the fact of conviction in the administrative case,
except that no removal as required by law had transpired during Limbona's prior
tenure as public official. Even as it declared Limbona qualified to run for the 2013
elections, the COMELEC could not have set aside the consequences attached to the
Ombudsman's finding of guilt. More so, the Ombudsman's decision against
Limbona was neither nullified nor set aside by the ruling of the COMELEC.
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The actions of the DILG, in tum, were mere implementation of the Ombudsman's
decision, as records indicated the failure to previously effect the consequences attached to
the finding of guilt. By acting on the Ombudsman's order to implement its decision, the
DILG neither argued nor declared Limbona to be disqualified from the mayoralty. That
Limbona was qualified to run for the 2013 elections, however, did not mean that he
could no longer be dismissed from the service as a result of his administrative case.
The DILG could still implement the Ombudsman's decision, as it did so, with the
service of the dismissal order upon Limbona, without disobeying the COMELEC.
In any case, even granting that the issuances of the COMELEC should have barred
the DILG from the service of the dismissal order, the petitioners could not be considered
guilty of contempt. By jurisprudence, intent and good faith may be crucial in contempt
cases.
Contrary to the COMELEC's finding, the DILG did not blatantly disregard the
resolutions of the COMELEC. Records indicate that it did not simply ignore the COMELEC
issuances, notwithstanding the fact that it only obtained notice thereof through Limbona's
counsel and not directly from the COMELEC. These circumstances show good faith on the
part of the petitioners, and negate a supposed intent to plainly disobey the COMELEC.
GOV. EXEQUIEL B. JAVIER, Petitioner, vs. COMMISSION ON ELECTIONS,
CORNELIO P. ALDON, and RAYMUNDO T. ROQUERO, Respondents.
January 12, 2016, G.R. No. 215847
Facts:
On December 3, 1985, the Batasang Pambansa enacted the Omnibus Election
Code (Election Code). Section 261(d) and (e) of this Code prescribe the following elements
of coercion as an election offense.
Coercion, as an election offense, is punishable by imprisonment of not less than one year
but not more than six years. Notably, Section 68 of the Election Code provides that the
Commission may administratively disqualify a candidate who violates Section 261(d) or (e).
On February 20, 1995, Congress enacted Republic Act No. 7890 amending the definition of
Grave Coercion under the Revised Penal Code. It increased the penalty for coercion
committed in violation of a person’s right to suffrage to prision mayor. Further, Section 3
of R.A. 7890 expressly repealed Section 26, paragraphs (d)(1) and (2) of the Election Code.
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On April 3, 2012, COMELEC issued Resolution No. 9385 fixing the calendar of activities for
the May 2013 elections. The resolution set the election period from January 13, 2013 until
June 12, 2013.
On September 3, 2012, Valderrama Municipal Vice-Mayor Christopher B. Maguad filed an
administrative complaint for Gross Misconduct/Dereliction of Duty and Abuse of
Authority against Valderrama Mayor Mary Joyce U. Roquero (Mayor Roquero). This
complaint was docketed as Administrative Case No. 05-2012.
On November 9, 2012, the Sangguniang Panlalawigan (SP) issued Resolution No. 2912012 recommending to Antique Governor Exequiel Javier (Gov. Javier) the preventive
suspension of Mayor Roquero.
On November 21, 2012, Mayor Roquero filed a petition for certiorari and prohibition with
prayer for the issuance of a temporary restraining order (TRO) before the Regional Trial
Court (RTC), Branch 12, Antique, against Gov. Javier and the members of the SP to restrain
them from proceeding with Administrative Case No. 05-2012. The petition was docketed
as Special Civil Action No. 12-11-86.
The case was re-raffled to the RTC, Branch 11 which issued a writ of preliminary injunction.
Gov. Javier, Vice-Governor Dimamay, and the members of the SP filed a petition
for certiorari with urgent prayer for TRO and preliminary injunction before the CA,
docketed as CA-G.R. SP-07307.
On December 18, 2012, COMELEC issued Resolution No. 9581 prohibiting any public
official from suspending any elective provincial, city, municipal, or barangay officer during
the election period for the May 13, 2013 elections. This resolution implements Section 261
(x) of the Election Code.
On January 15, 2013, the CA issued a TRO in CA-G.R. SP-07307.
On January 16, 2013, the RTC, Branch 11 promulgated its judgment granting certiorari and
prohibition. It ordered the SP to cease and desist from further proceeding with
Administrative Case No. 05-2012. It likewise ordered Gov. Javier to refrain from
implementing SP Resolution No. 291-2012 and from preventively suspending Mayor
Roquero.
On January 23, 2013, Gov. Javier issued Executive Order No. 003, S. 2013, preventively
suspending Mayor Roquero for thirty (30) days.
On February 7, 2013, the SP of Antique issued a decision finding Mayor Roquero guilty
of Grave Misconduct in relation with Section 3(e) of R. A. 3019, the Anti-Graft and Corrupt
Practices Act, and Grave Abuse of Authority in relation with Section 5(e) of R.A. No. 6713.
The SP suspended her for four (4) months.
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Mayor Roquero filed an Election Offense complaint against Gov. Javier for violating Section
261(x) of the Election Code. The case was filed before the COMELEC Law Department and
docketed as Election Offense Case (EOC) No. 13-025.
Meanwhile (or on March 15, 2013), the CA granted the writ of preliminary injunction filed
by Gov. Javier, et al., in CA-G.R. SP-07307. It enjoined Judge Nery Duremdes of the RTC,
Branch 11 from conducting further proceedings in SPL Civil Action No. 12-11-86.
On March 22, 2013, private respondents Cornelio P. Aldon (Aldon) and Raymundo T.
Roquero (Roquero) also filed a petition for disqualification before the Commission against
Gov. Javier, Vice-Governor Rosie A. Dimamay, and the other members of the SP. The case
was docketed as COMELEC Special Action (SPA) No. 13-254 (DC.)
Aldon and Roquero sought to disqualify Gov. Javier and the other incumbent officials from
running in the 2013 elections on the ground that the latter committed the election offenses
of Coercion of Subordinates [Sec. 261(d)] and Threats, Intimidation, Terrorism x x x or
Other Forms of Coercion [Sec. 261(e)] by suspending Mayor Roquero. They alleged that the
suspension was political harassment calculated to intimidate the Roqueros into backing
out of the 2013 elections.
On April 29, 2013, the Clerk of the Commission conducted a conference hearing between
the parties.
On April 30, 2013, Gov. Javier (together with the SP Members) filed a motion to dismiss
with answer ex abundante ad cautelam.
After the May 13, 2013 Elections, only Gov. Javier and SP Members Tobias M. Javier, Edgar
D. Denosta, Teopisto C. Estaris, Jr., and Victor R. Condez were proclaimed winners. Hence,
the Commission considered the disqualification cases against the losing candidates moot.
On October 3, 2014, the COMELEC Second Division issued a resolution in SPA No. 13-254
(DC) disqualifying Gov. Javier and annulling his proclamation as the Governor of Antique.
The resolution was penned by Commissioner Elias R. Yusoph.
The COMELEC held that the preventive suspension of Mayor Roquero under Executive
Order No. 003 violated the election period ban because it was not for the purpose of
applying the Anti-Graft and Corrupt Practices Act. It also considered the Commission’s
findings in EOC No. 13-025 that there was substantial evidence showing that Gov. Javier
acted in bad faith when he suspended Mayor Roquero as a form of punishment for opposing
him.
The COMELEC ruled that Gov. Javier’s act of preventively suspending Mayor Roquero
during the election period ban fell within the contemplation of Section 261(d) of the Election
Code, which is a ground for disqualification under Section 68. It held that while Section
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261(d) of the Election Code was repealed by Republic Act No. 7890, it did not remove
coercion "as a ground per se for disqualification under [Section] 68." In fact, R.A. 7890 made
Coercion (an election offense) a felony with a higher penalty. The COMELEC added that
the general repealing clause of R.A. No. 7890 cannot impliedly repeal Section 68 because
the latter was "not absolutely and irreconcilably incompatible with Article 286."
Commissioner Luie Tito F. Guia dissented from the resolution. Commissioner Guia
reasoned that the legal basis to dismiss Gov. Javier no longer exists because Section 3 of
Republic Act No. 7890 had repealed Section 261(d) of the Election Code. Commissioner
Arthur D. Lim took no part in the vote because he did not participate in the deliberations.
With the votes tied at 1-1-1 (one voted to grant, one dissenting, and one not participating),
the case failed to obtain the necessary majority. Consequently on October 14, 2014, the
COMELEC Second Division issued an order elevating the case to the en banc for its
disposition.
The Commission en banc agreed, as a matter of internal arrangement, to submit their
respective opinions explaining their respective votes or their concurrence with either
Commissioner Yusoph or Commissioner Guia.
Three (3) Commissioners concurred with Commissioner Yusoph: Chairman Sixto
Brillantes, Jr., Commissioner Lucenito Tagle, and Commissioner Arthur Lim.
Commissioner Christian Robert Lim joined Commissioner Guia’s dissent. Commissioner Al
A. Parreño did not participate in the vote as he was away on official business. Thus, the
vote was 4-2-1 in favor of disqualification; in a per curiam order promulgated on January 12,
2015, the Commission en banc disqualified Gov. Javier and annulled his proclamation as the
governor of Antique.
On January 20, 2015, Gov. Javier filed a petition for certiorari under Rule 65 in relation with
Rule 64 of the Rules of Court.
Issues: I. Whether the Commission gravely abused its discretion when it issued Resolution
No. 9581 fixing the 2013 election period from January 13, 2013 until June 12, 2013, for the
purpose of determining administrative and criminal liability for election offenses.
II. Whether the Commission erred in ruling that R.A. No. 7890 did not remove coercion as
a ground for disqualification under Section 68 of the Election Code.
III. Whether the Commission en banc committed grave abuse of discretion in issuing its
Order dated January 12, 2015, disqualifying Gov. Javier and annulling his proclamation as
the governor of Antique.
Ruling:
The COMELEC is expressly authorized to fix a different date of the election period.
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The petitioner contends that the election period for the reckoning of administrative and
criminal liabilities under election laws should always be the same-90 days before and 30
days after an election-fixed in Article IX-C, Section 9 of the Constitution and Section 8 of
Republic Act No. 7056.14 He argues that the Commission’s authority to fix the pre-election
period refers only to the period needed to properly administer and conduct orderly
elections. The petitioner argues that by extending the period for incurring criminal liability
beyond the 90-day period, the Commission encroached on the legislature’s prerogative to
impute criminal and administrative liability on mala prohibita acts. Therefore, COMELEC
Resolution Nos. 9385 and 9581 were issued ultra vires.
We do not find this argument meritorious.
No less than the Constitution authorizes the Commission to fix the dates of the election
period. Article IX-C, Section 9 provides:
Section 9. Unless otherwise fixed by the Commission in special cases, the election period
shall commence ninety days before the day of election and shall end thirty days
thereafter.15
Congress, through the Election Code, explicitly recognizes this authority:
Sec. 3. Election and campaign periods. – Unless otherwise fixed in special cases by the
Commission on Elections, which hereinafter shall be referred to as the Commission, the
election period shall commence ninety days before the day of the election and shall end
thirty days thereafter.16 (emphases supplied)
Evidently, the 120-day period is merely the default election period. The Commission is not
precluded from fixing the length and the starting date of the election period to ensure free,
orderly, honest, peaceful, and credible elections. This is not merely a statutory but a
constitutionally granted power of the Commission.
Contrary to the petitioner’s contention, the Commission’s act of fixing the election period
does not amount to an encroachment on legislative prerogative. The Commission did not
prescribe or define the elements of election offenses. Congress already defined them
through the Omnibus Election Code, the Fair Elections Act, and other pertinent election
laws.
As defined by Congress, some election offenses and prohibited acts can only be committed
during the election period. An element of these offenses (i.e., that it be committed during
the election period) is variable, as election periods are not affixed to a specific and
permanent date. Nevertheless, the definition of the offense is already complete. By fixing
the date of the election period, the Commission did not change what the offense is or how
it is committed. There is thus no intrusion into the legislative sphere.
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There is also no merit in the petitioner’s argument that the extended election period only
applies to pre-election activities other than the determination of administrative or criminal
liability for violating election laws. Neither the law nor the Constitution authorizes the use
of two distinct election periods for the same election. The law does not distinguish between
election offenses and other pre-election activities in terms of the applicable election period.
Where the law does not distinguish, neither should this Court.
The Alleged Lack of Due Process
We find the petitioner’s claim – that the Commission committed grave abuse of discretion
since there was no preliminary investigation as required under Section 265 of the Omnibus
Election Code – to be misplaced.
SPA No. 13-254 was an administrative proceeding for disqualification and not a criminal
prosecution of an election offense. The due process requirements and the procedures for
these are not the same. Section 265 of the Election Code only applies to criminal
prosecutions. Disqualification cases are summary in nature and governed by Rule 25 of the
COMELEC Rules of Procedure.
There is likewise no merit in the petitioner’s allegation that he was denied due process
because the Commission adjudicated the issue without conducting any subsequent
hearings and without requiring the submission of position papers or memoranda, notarized
witness affidavits, or other documentary evidence aside from the annexes included in the
petition and the answer.
Administrative due process cannot be fully equated with due process in its strict judicial
sense. A formal hearing is not always necessary and the observance of technical rules of
procedure is not strictly applied in administrative proceedings.19 The essence of
administrative due process is the right to be heard and to be given an opportunity to explain
one’s side. Where the Commission hears both sides and considers their contentions, the
requirements of administrative due process are complied with.
As we held in Lanot v. Commission on Elections:
The electoral aspect of a disqualification case determines whether the offender should be
disqualified from being a candidate or from holding office. Proceedings are summary in
character and require only clear preponderance of evidence. An erring candidate may be
disqualified even without prior determination of probable cause in a preliminary
investigation. The electoral aspect may proceed independently of the criminal aspect, and
vice versa.
The criminal aspect of a disqualification case determines whether there is probable cause
to charge a candidate for an election offense. The prosecutor is the COMELEC, through its
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Law Department, which determines whether probable cause exists. If there is probable
cause, the COMELEC, through its Law Department, files the criminal information before
the proper court. Proceedings before the proper court demand a full-blown hearing and
require proof beyond reasonable doubt to convict. A criminal conviction shall result in the
disqualification of the offender, which may even include disqualification from holding a
future public office.
Commissioner Arthur Lim’s Participation in the En Banc Voting
The petitioner further argues that the Commission committed grave abuse of discretion by
allowing Commissioner Arthur D. Lim to participate in the proceedings before the
Commission en banc. The petitioner maintains that because Commissioner Arthur Lim
took no part in the proceedings before the COMELEC Second Division, then he should
have inhibited from the en banc proceedings pursuant to the ruling in Estrella v.
COMELEC. If we disregard Commissioner Arthur Lim’s vote, then the Commission would
have failed to attain the necessary majority vote of all the members of the Commission.
The petitioner’s reliance on Estrella is misplaced because the facts of this case are different
from those of the present case. Estrella involved two related election cases between the
same parties: an election protest and an action for certiorari. One party moved for
Commissioner Lantion’s inhibition which the Commission denied. However,
Commissioner Lantion later inhibited himself from the certiorari proceeding and was
substituted by another Commissioner. The substitution order was also adopted in the
election protest case. When the election protest was elevated to the COMELEC en banc,
Commissioner Lantion participated in the deliberations and voted despite his prior
inhibition. This Court granted certiorari and held that Commissioner Lantion’s piecemeal
voluntary inhibition was illegal and unethical.
In the present case, Commissioner Arthur Lim did not inhibit from the proceedings. If the
Commissioner had inhibited, there would have been a need to replace him pursuant to
Rule 3, Section 6 of the COMELEC Rules of Procedure (as what happened in Estrella where
there was an issuance of an order designating Commissioner Borra as Commissioner
Lantion’s substitute). Commissioner Arthur Lim only abstained from voting; he did not
participate in the deliberations. When the Commission en banc, as a matter of internal
arrangement, agreed among themselves to submit their own opinion explaining their
respective vote or merely their concurrence with either Commissioner Elias R. Yusoph or
Commissioner Luie Tito F. Guia’s position on the matter, no legal or ethical impediment
existed preventing him (Commissioner Arthur Lim) from subsequently participating in the
deliberations and from casting his vote.
COMELEC’s Internal Arrangement
The petitioner also maintains that the Commission gravely abused its discretion when it
set aside its own rules and resolved the case through an "internal arrangement." He submits
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that the Commission should have waited for the assigned ponente to write an opinion
before agreeing to vote based on the positions of Commissioner Yusoph and Commissioner
Guia. The petitioner also claims that the assailed Order is a "midnight decision" and cites
the absence of a promulgation date on the front page and of a certification signed by the
Chairman as procedural infirmities.
The petitioner clearly refers to Rule 18 of the COMELEC Rules of Procedure which states:
Part IV
Rule 18 – Decisions
Sec. 1 Procedure in Making Decisions. – The conclusions of the Commission in any case
submitted to it for decision en banc or in Division shall be reached in consultation before
the case is assigned by raffle to a Member for the writing of the opinion of the Commission
or the Division and a certification to this effect signed by the Chairman or the Presiding
Commissioner, as the case may be, shall be incorporated in the decision. Any member who
took no part, dissented, or abstained from a decision or resolution must state the reason
therefor.
Every decision shall express therein clearly and distinctly the facts and the law on which it
is based. (emphasis supplied)
To our mind, the essence of this provision is: (1) that decisions of the Commission, whether
in Division or en banc, must be reached in consultation; and (2) that the decisions must
state their factual and legal bases. Moreover, Rule 18, Section 1 must be read together with
the other provisions of the COMELEC Rules of Procedure, particularly the following related
portions:
Rule 1 – Introductory Provisions
Sec. 3. Construction – These rules shall be liberally construed in order to promote the
effective and efficient implementation of the objectives of ensuring the holding of free,
orderly, honest, peaceful and credible elections and to achieve just, expeditious and
inexpensive determination and disposition of every action and proceeding brought before
the Commission.
Sec. 4. Suspension of the Rules – In the interest of justice and in order to obtain speedy
disposition of all matters pending before the Commission, these rules or any portion
thereof may be suspended by the Commission.
The COMELEC Rules specifically authorize the Commission to suspend the strict
application of its rules in the interest of justice and the speedy disposition of cases. In this
case, the Commission suspended Rule 18, Section 1. The Commission, as a body, dispensed
with the preparation of another ponencia and opted to vote on the legal positions of
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Commissioners Yusoph and Guia. Nevertheless, the decision was evidently reached
through consultation. Then Chairman Sixto Brillantes, Jr., Commissioner Lucenito Tagle,
and Commissioner Arthur Lim concurred with Commissioner Yusoph. Commissioner
Christian Robert Lim joined Commissioner Guia’s dissent. Chairman Brillantes, Jr. and
Commissioner Arthur Lim also wrote separate concurring opinions. The Court does not see
any arbitrariness or infirmity in this internal arrangement that would have deprived the
petitioner of due process.
Moreover, the Commission resorted to this arrangement because, as the petitioner pointed
out, three Commissioners were retiring soon. There was a need to resolve the cases because
the impending vacancies would have resulted in further delay. Contrary to the petitioner’s
insinuations, "midnight decisions" are not illegal. Judges and other quasi-judicial officers
cannot sit back, relax, and refuse to do their work just because they are nearing retirement
or are near the end of their term. As civil servants, they are expected to diligently carry out
their duties until their separation from service. Thus, the Commission’s suspension of its
rules and use of an internal arrangement to expedite its internal proceedings is not at all
unusual in collegial bodies. We note that the vote was divided and dissents were filed,
thereby indicating the absence of any malicious departure from the usual procedures in
arriving at the Commission’s ruling on the case.
Absence of a Promulgated Date and Failure to Serve Advance Copy
With respect to the absence of a promulgation date on the first page of the assailed order,
this Court directs the petitioner’s attention to the last page stating that the Order was
"Given this 12th day of January 2015, Manila, Philippines.”25 Promulgation is the process by
which a decision is published, officially announced, made known to the public, or delivered
to the clerk of court for filing, coupled with notice to the parties or their counsel.26 The
order was evidently promulgated on January 12, 2015.
The Commission does not deny that it failed to serve an advance copy of the order to the
petitioner as required under Rule 18, Section 527 of its Rules. But as we previously held in
the cases of Lindo v. COMELEC28 and Pimping v. COMELEC,29 this kind of procedural
lapse does not affect the validity of the order and is insufficient to warrant the grant of a
writ of certiorari in the absence of any grave abuse of discretion prejudicing the rights of
the parties.
Repeal of Section 261 (d) of Batas Pambansa Blg. 881 by Republic Act No. 7890
No less than the Constitution empowers the Commission to decide all questions affecting
elections except those involving the right to vote.30 It is the sole arbiter of all issues
involving elections. Hence, unless tainted with grave abuse of discretion, simple errors of
judgment committed by COMELEC cannot be reviewed even by this Court.31
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An error of judgment is one that the court may commit in the exercise of its jurisdiction;32
they only involve errors in the court or tribunal’s appreciation of the facts and the law.33
An error of jurisdiction is one where the act complained of was issued by the court without
or in excess of its jurisdiction, or with grave abuse of discretion tantamount to lack or excess
of jurisdiction.
A review of the October 3, 2014 COMELEC Second Division resolution (penned by
Commissioner Yusoph), however, showed that the main thrust of this resolution ‒to which
four Commissioners concurred in when the case was elevated to the en banc – is faulty.35
It considered the repeal of Section 261(d) by R.A. No.7890 to be an implied one, which is
contrary to the wordings of R.A. 7890.
For clarity, we reproduce the pertinent provisions of R.A. No. 7890, thus:
SECTION 1. Article 286, Section Three, Chapter Two, Title Nine of Act No. 3815, as
amended, is hereby further amended to read as follows:
“ART. 286. Grave Coercions. – The penalty of prision correccional and a fine not exceeding
Six thousand pesos shall be imposed upon any person who, without any authority of law,
shall, by means of violence, threats or intimidation, prevent another from doing something
not prohibited by law, or compel him to do something against his will, whether it be right
or wrong.
“If the coercion be committed in violation of the exercise of the right of suffrage, or for the
purpose of compelling another to perform any religious act, to prevent him from exercising
such right or from so doing such act, the penalty next higher in degree shall be imposed."
SEC. 2. Section 261, Paragraphs (d)(1) and (2), Article XXII of Batas Pambansa Blg. 881 is
hereby repealed.
SEC. 3. All other election laws, decrees, executive orders rules and regulations, or parts
thereof inconsistent with the provisions of this Act are hereby repealed.
xxxx
A repeal may be express or implied.36 An express repeal is one wherein a statute declares,
usually in its repealing clause, that a particular and specific law, identified by its number
or title, is repealed.37 An implied repeal, on the other hand, transpires when a substantial
conflict exists between the new and the prior laws. In the absence of an express repeal, a
subsequent law cannot be construed as repealing a prior law unless an irreconcilable
inconsistency and repugnancy exist in the terms of the new and the old laws.38
In the present case, it is clear that R.A. No. 7890 expressly repealed Section 261, paragraphs
(d)(1) and (2) of the Omnibus Election Code. The COMELEC Second Division’s October 3,
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2014 resolution, however, treated this repeal as merely an implied one. Commissioner
Yusoph reasoned out as follows:
Moreover, the general repealing clause in Section 3 of RA 7890 cannot impliedly repeal
Section 68 because the latter is not absolutely and irreconcilably incompatible with Article
286, as amended by RA 7890. Meaning, a case for disqualification due to coercion under
Section 68 can very well stand apart from the criminal case for coercion under Article 286,
as amended. This is so because Section 68 involves an administrative proceeding intended
to disqualify a candidate whereas Article 286, supra, involves a criminal proceeding
intended to penalize coercion. Both laws, therefore, can be given effect without nullifying
the other, hence the inapplicability of implied repeal.
To firm up our stance against implied repeal of coercion as a ground for disqualification,
the following pronouncements of the Supreme Court are guiding:
“Implied repeal by irreconcilable inconsistency takes place when the two statutes cover the
same subject matter; they are so clearly inconsistent and incompatible with each other that
they cannot be reconciled or harmonized; and both cannot be given effect, that is, that one
law cannot be enforced without nullifying the other."
“Well-settled is the rule is statutory construction that implied repeals are disfavored. In
order to effect a repeal by implication, the latter statute must be so irreconcilably
inconsistent and repugnant with the existing law that they cannot be made to reconcile
and stand together. The clearest case possible must be made before the inference of implied
repeal may be drawn, for inconsistency is never presumed. x x x x"39
We point out that this resolution and the dissenting opinion of Commissioner Guia became
the basis of the internal arrangement reached upon by the Commission en banc whereby
the commissioners agreed to submit their respective opinions explaining their votes or
their concurrence with either Commissioner Yusoph or Guia.
As earlier stated, the vote was 4-2-1 in favor of disqualification; in a per curiam order
promulgated on January 12, 2015, the Commission en banc disqualified Gov. Javier and
annulled his proclamation as the governor of Antique. Chairman Brillantes and
Commissioner Arthur Lim wrote their own opinions concurring with the position of
Commissioner Yusoph, while Commissioner Tagle submitted his vote concurring with the
opinions of Commissioner Yusoph and Chairman Brillantes.
In his Separate Opinion, Chairman Brillantes agreed with Commissioner Yusoph that the
repeal of Section 261(d) by R.A. No. 7890 was merely implied, and made the following
disquisition:
xxxx
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The Supreme Court, in a long line of cases, has constantly disfavored and struck down the
use of repeal by implication. Pursuant to jurisprudence, well entrenched is the rule that an
implied repeal is disfavored. The apparently conflicting provisions of a law or two laws
should be harmonized as much as possible, so that each shall be effective. For a law to
operate to repeal another law, the two laws must actually be inconsistent. The former must
be so repugnant as to be irreconcilable with the latter act. Stated plainly, a petition for
disqualification on the ground of coercion shall be taken differently and distinctly from
coercion punishable under the RPC for the two can very well stand independently from
each other. x x x Therefore, unless proven that the two are inconsistent and would render
futile the application and enforcement of the other, only then that a repeal by implication
will be preferred. x x x x
A law that has been expressly repealed ceases to exist and becomes inoperative from the
moment the repealing law becomes effective. The discussion on implied repeals by the
Yusoph resolution, (and the concurring opinion of Chairman Brillantes, Jr.), including the
concomitant discussions on the absence of irreconcilable provisions between the two laws,
were thus misplaced. The harmonization of laws can only be had when the repeal is
implied, not when it is express, as in this case.
The COMELEC’s reasoning that coercion remains to be a ground for disqualification under
Section 68 of the Election Code despite the passage of R.A. No. 7890 is erroneous. To the
point of our being repetitive, R.A. No. 7890 expressly repealed Section 261 d(1) and (2) of
Batas Pambansa Blg. 881, rendering these provisions inoperative. The effect of this repeal
is to remove Section 261(d) from among those listed as ground for disqualification under
Section 68 of the Omnibus Election Code.
In his Memorandum/Concurring Opinion, Commissioner Arthur Lim stated that the
petition for disqualification is anchored not only on violation of Section 261 (d), but also
on the violation of Section 261(e) in relation to Section 68 of the OEC. We point out,
however, that the COMELEC Second Division’s October 3, 2014 resolution in SPA No. 13254 (disqualifying Gov. Javier and annulling his proclamation as the Governor of Antique)
was premised solely on violation of Section 261(d) of the OEC; it did not find that Gov.
Javier – even by substantial evidence - violated the provisions of Section 261(e). For clarity
and accuracy, we quote the pertinent portions of the COMELEC’s (Second Division)
October 3, 2014 resolution:
Ineluctably, the act of Gov. Javier in preventively suspending Mayor Roquero during the
Election period ban falls within the contemplation of Section 261(d) of the Election Code
which is a ground for disqualification under Section 68, Election Code. That is, Gov. Javier
issued Executive Order No. 003 suspending Mayor Roquero to coerce, intimidate, compel,
or influence the latter to collaborate with or campaign for the former, or to punish the
latter for having manifested political opposition against the former. For that, he must be
disqualified.
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With the express repeal of Section 261(d), the basis for disqualifying Javier no longer
existed. As we held in Jalosjos, Jr. v. Commission on Elections, [t]he jurisdiction of the
COMELEC to disqualify candidates is limited to those enumerated in Section 68 of the
Omnibus Election Code. All other election offenses are beyond the ambit of COMELEC
jurisdiction. They are criminal and not administrative in nature. Pursuant to sections 265
and 268 of the Omnibus Election Code, the power of the COMELEC is confined to the
conduct of preliminary investigation on the alleged election offenses for the purpose of
prosecuting the alleged offenders before the regular courts of justice.
There is grave abuse of discretion justifying the issuance of the writ of certiorari when there
is such capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction, where power is exercised arbitrarily or in a despotic manner by reason of
passion, prejudice, or personal hostility amounting to an evasion of positive duty, or to
virtual refusal to perform the duty enjoined, or to act at all in contemplation of law, as
where the power is exercised in an arbitrary and despotic manner by reason of passion and
hostility.
To our mind, the COMELEC gravely abused its discretion when it disqualified Gov. Javier
based on a provision of law that had already been expressly repealed. Its stubborn
insistence that R.A. No. 7890 merely impliedly repealed Section 261 (d) despite the clear
wordings of the law, amounted to an arbitrary and whimsical exercise of judgment.
ARCHBISHOP FERNANDO R. CAPALLA, OMAR SOLITARIO ALI AND MARY ANNE
L. SUSANO, Petitioners, v. THE HONORABLE COMMISSION ON ELECTIONS,
Respondent.
[G.R. No. 201112. 201121. 201127. 201413], June 13, 2012]
Facts:
Pursuant to its authority to use an Automated Election System (AES) under Republic Act
(RA) No. 8436, as amended by RA No. 9369, or the Automation Law and in accordance with
RA No. 9184, otherwise known as the Government Procurement Reform Act, the
Commission on Elections (Comelec) posted and published an invitation to apply for
eligibility and to bid for the 2010 Poll Automation Project (the Project). On March 18, 2009,
the Comelec approved and issued a Request for Proposal (RFP) for the Project consisting
of the following components:
Component 1: Paper-Based Automation Election System (AES)
1-A. Election Management System (EMS)
1-B. Precinct Count Optical Scan (PCOS) System
1-C. Consolidation/Canvassing System (CCS)
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Component 2: Provision for Electronic Transmission of Election Results using Public
Telecommunications Network
Component 3: Overall Project Management
On June 9, 2009, the Comelec issued Resolution No. 8608 awarding the contract for the
Project to respondent Smartmatic-TIM. On July 10, 2009, the Comelec and SmartmaticTIM entered into a Contract for the Provision of an Automated Election System for the May
10, 2010 Synchronized National and Local Elections, (AES Contract, for brevity). The
contract between the Comelec and Smartmatic-TIM was one of “lease of the AES with
option to purchase (OTP) the goods listed in the contract.” In said contract, the Comelec
was given until December 31, 2010 within which to exercise the option.
On September 23, 2010, the Comelec partially exercised its OTP 920 units of PCOS
machines with corresponding canvassing/consolidation system (CCS) for the special
elections in certain areas in the provinces of Basilan, Lanao del Sur and Bulacan. In a
letter[7] dated December 18, 2010, Smartmatic-TIM, through its Chairman Cesar Flores
(Flores), proposed a temporary extension of the option period on the remaining 81,280
PCOS machines until March 31, 2011, waiving the storage costs and covering the
maintenance costs. The Comelec did not exercise the option within the extended period.
Several extensions were given for the Comelec to exercise the OTP until its final extension
on March 31, 2012.
On March 6, 2012, the Comelec issued Resolution No. 9373[8] resolving to seriously
consider exercising the OTP subject to certain conditions. On March 21, 2012, the Comelec
issued Resolution No. 9376[9] resolving to exercise the OTP the PCOS and CCS hardware
and software in accordance with the AES contract between the Comelec and SmartmaticTIM in connection with the May 10, 2010 elections subject to the following conditions: (1)
the warranties agreed upon in the AES contract shall be in full force and effect; (2) the
original price for the hardware and software covered by the OTP as specified in the AES
contract shall be maintained, excluding the cost of the 920 units of PCOS and related
peripherals previously purchased for use in the 2010 special elections; and (3) all other
services related to the 2013 AES shall be subject to public bidding. On March 29, 2012, the
Comelec issued Resolution No. 9377 resolving to accept Smartmatic-TIM’s offer to extend
the period to exercise the OTP until March 31, 2012 and to authorize Chairman Brillantes
to sign for and on behalf of the Comelec the Agreement on the Extension of the OTP Under
the AES Contract[11] (Extension Agreement, for brevity). The aforesaid Extension
Agreement was signed on March 30, 2012.[12] On even date, the Comelec issued Resolution
No. 9378[13] resolving to approve the Deed of Sale between the Comelec and SmartmaticTIM to purchase the latter’s PCOS machines (hardware and software) to be used in the
upcoming May 2013 elections and to authorize Chairman Brillantes to sign the Deed of Sale
for and on behalf of the Comelec. The Deed of Sale[14] was forthwith executed.
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Claiming that the foregoing issuances of the Comelec, as well as the transactions entered
pursuant thereto, are illegal and unconstitutional, petitioners come before the Court in
four separate Petitions for Certiorari, Prohibition, and Mandamus imputing grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of the Comelec in issuing
the assailed Resolutions and in executing the assailed Extension Agreement and Deed.
Issue:
Whether the COMELEC Resolutions are constitutional.
Ruling:
At the outset, we brush aside the procedural barriers (i.e., locus standi of petitioners and
the non-observance of the hierarchy of courts) that supposedly prevent the Court from
entertaining the consolidated petitions. As we held in Guingona, Jr. v. Commission on
Elections:
There can be no doubt that the coming 10 May 2010 [in this case, May 2013] elections is a
matter of great public concern. On election day, the country's registered voters will come
out to exercise the sacred right of suffrage. Not only is it an exercise that ensures the
preservation of our democracy, the coming elections also embodies our people's last ounce
of hope for a better future. It is the final opportunity, patiently awaited by our people, for
the peaceful transition of power to the next chosen leaders of our country. If there is
anything capable of directly affecting the lives of ordinary Filipinos so as to come within
the ambit of a public concern, it is the coming elections, more so with the alarming turn of
events that continue to unfold. The wanton wastage of public funds brought about by one
bungled contract after another, in staggering amounts, is in itself a matter of grave public
concern.
Thus, in view of the compelling significance and transcending public importance of the
issues raised by petitioners, the technicalities raised by respondents should not be allowed
to stand in the way, if the ends of justice would not be subserved by a rigid adherence to
the rules of procedure.
Now on the substantive issues. In order to achieve the modernization program of the
Philippine Electoral System, which includes the automation of the counting, transmission
and canvassing of votes for the May 2010 national and local elections with systems
integration and over-all project management in a comprehensive and well-managed
manner,[31] the Comelec entered into an AES contract with Smartmatic-TIM for the lease
of goods and purchase of services under the contract, with option to purchase the goods.
The Comelec did not exercise the option within the period stated in the above provision.
Smartmatic, however, unilaterally extended the same until its final extension on March 31,
2012. The Comelec, thereafter, accepted the option and eventually executed a Deed of Sale
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involving said goods. Now, petitioners come before the Court assailing the validity of the
extension, the exercise of the option and the Deed of Sale. In light of the AES contract, can
Smartmatic-TIM unilaterally extend the option period? Can the Comelec accept the
extension?
We answer in the affirmative.
It is a basic rule in the interpretation of contracts that an instrument must be construed so
as to give effect to all the provisions of the contract.[34] In essence, the contract must be
read and taken as a whole.[35] While the contract indeed specifically required the Comelec
to notify Smartmatic-TIM of its OTP the subject goods until December 31, 2010, a reading
of the other provisions of the AES contract would show that the parties are given the right
to amend the contract which may include the period within which to exercise the option.
There is, likewise, no prohibition on the extension of the period, provided that the contract
is still effective.
Smartmatic-TIM categorically stated in its Consolidated Comment to the petitions that the
Comelec still retains P50M of the amount due Smartmatic-TIM as performance
security.[38] In short, the performance security had not yet been released to SmartmaticTIM which indicates that the AES contract is still effective and not yet terminated.
Consequently, pursuant to Article 19[39] of the contract, the provisions thereof may still be
amended by mutual agreement of the parties provided said amendment is in writing and
signed by the parties. In light of the provisions of the AES contract, there is, therefore,
nothing wrong with the execution of the Extension Agreement.
Considering, however, that the AES contract is not an ordinary contract as it involves
procurement by a government agency, the rights and obligations of the parties are
governed not only by the Civil Code but also by RA 9184. In this jurisdiction, public bidding
is the established procedure in the grant of government contracts. The award of public
contracts, through public bidding, is a matter of public policy.[40] The parties are,
therefore, not at full liberty to amend or modify the provisions of the contract bidded upon.
The three principles of public bidding are: (1) the offer to the public; (2) an opportunity for
competition; and (3) a basis for the exact comparison of bids.[41] By its very nature, public
bidding aims to protect public interest by giving the public the best possible advantages
through open competition.[42] Competition requires not only bidding upon a common
standard, a common basis, upon the same thing, the same subject matter, and the same
undertaking, but also that it be legitimate, fair and honest and not designed to injure or
defraud the government.[43] The essence of competition in public bidding is that the
bidders are placed on equal footing which means that all qualified bidders have an equal
chance of winning the auction through their bids.[44] Another self-evident purpose of
public bidding is to avoid or preclude suspicion of favoritism and anomalies in the
execution of public contracts.[
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A winning bidder is not precluded from modifying or amending certain provisions of the
contract bidded upon. However, 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.[46] 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 the other bidders.
The modifications in the contract executed between the government and the winning
bidder must be such as to render the executed contract to be an entirely different contract
from the one bidded upon.[47]
Public bidding 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.[48] If this flawed process would be allowed, public bidding will cease to be
competitive, and worse, government would not be favored with the best bid. Bidders will
no longer bid on the basis of the prescribed terms and conditions in the bid documents but
will formulate their bid in anticipation of the execution of a future contract containing new
and better terms and conditions that were not previously available at the time of the
bidding. Such a public bidding will not inure to the public good.[49]
In Power Sector Assets and Liabilities Management Corporation (PSALM) v. Pozzolanic
Philippines Incorporated,[50] the Court nullified the right of first refusal granted to
respondent therein in the Batangas Contract for being contrary to public policy. The Court
explained that the same violated the requirement of competitive public bidding in the
government contract, because the grant of the right of first refusal did not only
substantially amend the terms of the contract bidded upon so that resultantly the other
bidders thereto were deprived of the terms and opportunities granted to respondent
therein after it won the public auction, but also altered the bid terms by effectively barring
any and all true bidding in the future.[51]
Also in Agan, Jr. v. Philippine International Air Terminals Co., Inc., (PIATCO),[52] this
Court declared as null and void, for being contrary to public policy, the Concession
Agreement entered into by the government with PIATCO, because it contained provisions
that substantially departed from the Draft Concession Agreement included in the bid
documents. The Court considered the subject contracts a mockery of the bidding process,
because they were substantially amended after their award to the successful bidder on
terms more beneficial to PIATCO and prejudicial to public interest.[53]
The same conclusions cannot be applied in the present case.
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One. Smartmatic-TIM was not granted additional right that was not previously available to
the other bidders. Admittedly, the AES contract was awarded to Smartmatic-TIM after
compliance with all the requirements of a competitive public bidding. The RFP, Bid
Bulletins and the AES contract identified the contract as one of lease with option to
purchase. The AES contract is primarily a contract of lease of goods[54] listed in the
contract and purchase of services[55] also stated in the contract. Section 4.3 thereof gives
the Comelec the OTP the goods agreed upon. The same provision states the conditions in
exercising the option, including the additional amount that the Comelec is required to pay
should it exercise such right. It is, therefore, undisputed that this grant of option is
recognized by both parties and is already a part of the principal contract of lease. Having
been included in the RFP and the bid bulletins, this right given to the Comelec to exercise
the option was known to all the bidders and was considered in preparing their bids. The
bidders were apprised that aside from the lease of goods and purchase of services, their
proposals should include an OTP the subject goods. Although the AES contract was
amended after the award of the contract to Smartmatic-TIM, the amendment only pertains
to the period within which the Comelec could exercise the option because of its failure to
exercise the same prior to the deadline originally agreed upon by the parties. Unlike in
PSALM, wherein the winning bidder was given the right of first refusal which substantially
amended the terms of the contract bidded upon, thereby depriving the other bidders of the
terms and opportunities granted to winning bidder after it won the public auction; and in
Agan, Jr., wherein the Concession Agreement entered into by the government with
PIATCO contained provisions that substantially departed from the draft Concession
Agreement included in the bid documents; the option contract in this case was already a
part of the original contract and not given only after Smartmatic-TIM emerged as winner.
The OTP was actually a requirement by the Comelec when the contract of lease was bidded
upon. To be sure, the Extension Agreement does not contain a provision favorable to
Smartmatic-TIM not previously made available to the other bidders.
Two. The amendment of the AES contract is not substantial. The approved budget for the
contract was P11,223,618,400.00[56] charged against the supplemental appropriations for
election modernization. Bids were, therefore, accepted provided that they did not exceed
said amount. After the competitive public bidding, Smartmatic-TIM emerged as winner
and the AES contract was thereafter executed. As repeatedly stated above, the AES contract
is a contract of lease with OTP giving the Comelec the right to purchase the goods agreed
upon if it decides to do so. The AES contract not only indicated the contract price for the
lease of goods and purchase of services which is P7,191,484,739.48, but also stated the
additional amount that the Comelec has to pay if it decides to exercise the option which is
P2,130,635,048.15. Except for the period within which the Comelec could exercise the OTP,
the terms and conditions for such exercise are maintained and respected. Admittedly, the
additional amount the Comelec needed to pay was maintained (less the amount already
paid when it purchased 920 units of PCOS machines with corresponding CCS for the special
elections in certain areas in the provinces of Basilan, Lanao del Sur and Bulacan) subject to
the warranties originally agreed upon in the AES contract. The contract amount not only
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included that for the contract of lease but also for the OTP. Hence, the competitive public
bidding conducted for the AES contract was sufficient. A new public bidding would be a
superfluity.
The Solicitor General himself clarified during the oral arguments that the purchase price
of the remaining PCOS machines stated in the assailed Deed of Sale was the price stated in
Article 4.3 of the AES contract. Therefore, the said amount was already part of the original
amount bidded upon in 2009 for the AES contract which negates the need for another
competitive bidding.[57]
Third. More importantly, the amendment of the AES contract is more advantageous to the
Comelec and the public.
From the foregoing jurisprudential pronouncements, an option is only a preparatory
contract and a continuing offer to enter into a principal contract. Under the set-up, the
owner of the property, which is Smartmatic-TIM, gives the optionee, which is the Comelec,
the right to accept the former’s offer to purchase the goods listed in the contract for a
specified amount, and within a specified period. Thus, the Comelec is given the right to
decide whether or not it wants to purchase the subject goods. It is, therefore, uncertain
whether or not the principal contract would be entered into. The owner of the property
would then have to wait for the optionee to make a decision. A longer option period would
mean that more time would be given to the optionee to consider circumstances affecting
its decision whether to purchase the goods or not. On the part of Smartmatic-TIM, it would
have to wait for a longer period to determine whether the subject goods will be sold to the
Comelec or not, instead of freely selling or leasing them to other persons or governments
possibly at a higher price. This is especially true in this case as the terms and conditions for
the exercise of the option including the purchase price, had been included in the AES
contract previously bidded upon. The parties are bound to observe the limitations
embodied therein, otherwise, a new public bidding would be needed.
We agree with respondents that the exercise of the option is more advantageous to the
Comelec, because the P7,191,484,739.48 rentals paid for the lease of goods and purchase of
services under the AES contract was considered part of the purchase price. For the Comelec
to own the subject goods, it was required to pay only P2,130,635,048.15. If the Comelec did
not exercise the option, the rentals already paid would just be one of the government
expenses for the past election and would be of no use to future elections. Assuming that
the exercise of the option is nullified, the Comelec would again conduct another public
bidding for the AES for the 2013 elections with its available budget of P7 billion. Considering
that the said amount is the available fund for the whole election process, the amount for
the purchase or lease of new AES will definitely be less than P7 billion. Moreover, it is
possible that Smartmatic-TIM would again participate in the public bidding and could win
at a possibly higher price. The Comelec might end up acquiring the same PCOS machines
but now at a higher price.
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Another reason posed by petitioners for their objection to the exercise of the option and
the eventual execution of the March 30, 2012 Deed of Sale is the existence of the alleged
defects, glitches, and infirmities of the subject goods. The technology provided by
Smartmatic-TIM was not perfect, because of some technical problems that were
experienced during the 2010 elections. Petitioners herein doubt that the integrity and
sanctity of the ballots are protected because of these defects.
We do not agree.
Prior to the execution of the Deed of Sale, the Comelec and Smartmatic-TIM had agreed
that the latter would undertake fixes and enhancements to the hardware and software to
make sure that the subject goods are in working condition to ensure a free, honest, and
credible elections. As former Commissioner Augusto C. Lagman admitted[65] during the
oral arguments, there are possible software solutions to the alleged problems on the PCOS
machines and it is not inherently impossible to remedy the technical problems that have
been identified. While there is skepticism that Smartmatic-TIM would be able to correct
the supposed defects prior to the 2013 elections because of its inaction during the two years
prior to the exercise of the option, we agree with the opinion of Chairman Sixto S.
Brillantes, Jr. that it is absurd to expect Smartmatic-TIM to invest time, money and
resources in fixing the PCOS machines to the specifications and requirements of the
Comelec when prior to the exercise of the OTP, they do not have the assurance from the
Comelec that the latter will exercise the option.
As the Comelec is confronted with time and budget constraints, and in view of the
Comelec’s mandate to ensure free, honest, and credible elections, the acceptance of the
extension of the option period, the exercise of the option, and the execution of the Deed of
Sale, are the more prudent choices available to the Comelec for a successful 2013 automated
elections. The alleged defects in the subject goods have been determined and may be
corrected as in fact fixes and enhancements had been undertaken by Smartmatic-TIM.
Petitioners could not even give a plausible alternative to ensure the conduct of a successful
2013 automated elections, in the event that the Court nullifies the Deed of Sale.
BAGUMBAYAN-VNP MOVEMENT, INC., AND RICHARD J. GORDON, AS
CHAIRMAN OF BAGUMBAYAN-VNP MOVEMENT, INC., Petitioners, v.
COMMISSION ON ELECTIONS, Respondent.
G.R. No. 222731, March 08, 2016
Facts:
On December 22, 1997, Republic Act No. 843611 authorized the Commission on Elections
to use an automated election system for electoral exercises.12 After almost a decade,
Republic Act No. 936913 amended Republic Act No. 8436. Republic Act No. 9369
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introduced significant changes to Republic Act No. 8436, Batas Pambansa Blg. 881,
otherwise known as the Omnibus Election Code, and other election-related statutes.14
Automation is hailed as a key "towards clean and credible elections," reducing the long wait
and discouraging cheating.15 In 2010 and 2013, the Commission on Elections enforced a
nationwide automated election system using the Precinct Count Optical Scan (PCOS)
machines. For the 2016 National and Local Elections, the Commission on Elections has
opted to use the Vote-Counting Machine. The vote-counting machine is a "paper-based
automated election system,"17 which is reported to be "seven times faster and more
powerful than the PCOS because of its updated processor."18 Likewise, it is reported to
have more memory and security features,19 and is "capable of producing the Voter
Verification Paper Audit Trail (VVPAT)."20 This VVPAT functionality is in the form of a
printed receipt and a touch screen reflecting the votes in the vote-counting machine.21
Petitioners allege that under Republic Act No. 8436, as amended by Republic Act No. 9369,
there are several safeguards or Minimum System Capabilities to ensure the sanctity of the
ballot. Among these is the implementation of the VVPAT security feature, as found in
Section 6(e), (f), and (n).
According to petitioners, the VVPAT "will ensure transparency and reduce any attempt to
alter the results of the elections."24 There will be "an electronic tally of the votes cast" or
the vote stored in the vote-counting machine, as well as "a paper record of the individual
votes" cast or the VVPAT receipt.25 Should there be any doubt, "the electronically
generated results . . . can then be audited and verified through a comparison . . . with these
paper records."26
In the Terms of Reference for the 2016 National and Local Elections Automation Project,
the Commission on Elections lists the Minimum Technical Specifications of the Optical
Mark Reader or Optical Scan System, precinct-based technologies that the poll body shall
accept.27
Petitioners claim that the Commission on Elections refuses to implement the VVPAT
function based on fears that the security feature may aid in vote-buying, and that the voting
period may take longer.28 On February 9, 2016, petitioners read from ABS-CBN News
Online that with a vote of 7-0, the Commission on Elections En Banc decided not to
implement the VVPAT for the 2016 Elections.29 Petitioners attached a copy of the article.30
Other news reports state that the Commission on Elections ruled similarly against the
voting receipts in 2010 and 2013.
At the Joint Congressional Oversight Committee on the Automated Election System on
February 16, 2016, the Commission on Elections, through its Chairperson Andres D.
Bautista (Chairperson Bautista), supposedly gave its reasons for refusing to issue paper
receipts. First, "politicians can use the receipts in vote buying[;]" second, it may increase
voting time to five to seven hours in election precincts:
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[T]he poll body has decided against printing the receipt because it might be used for vote
buying and that it would result in the vote-counting process being extended from six to
seven hours since it takes about 13 seconds to print a receipt, meaning each machine would
have to run for that long for the receipts.
Bautista said another "big concern" is that "there might be losing candidates who might
question the results, basically instructing their supporters that when the machine prints
out the receipt, regardless of what the receipt says, they will say that it's not correct."
On February 11, 2016, the Commission on Elections issued Resolution No. 1005735
providing for "rules and general instructions on the process of testing and sealing, [as well
as] voting, counting, and transmission of election results."36 Adopting Resolution No.
10057 by a vote of 7-0, the Commission on Elections En Banc made no mention using
VVPAT receipts for the 2016 national elections.
Petitioners argue that the Commission on Elections' fears are "baseless and speculative." In
assailing the Commission on Elections' reasons, petitioners cite the Position Paper of
alleged automated elections expert, Atty. Glenn Ang Chong (Atty. Chong). Atty. Chong
recommended that the old yellow ballot boxes be used alongside the voting machine. The
VVPAT receipts can be immediately placed inside the old ballot boxes.
After the voter casts his or her vote, he or she gets off the queue and walks to where the old
ballot box is. There, the voter may verify if the machine accurately recorded the vote; if so,
the voter drops the VVPAT receipt into the old ballot box.40 Should there be any
discrepancy, the voter may have it duly recorded with the poll watchers for analysis and
appropriate action.41 The poll watchers must ensure that all receipts are deposited into the
old ballot box.42 This will guarantee that no voter can sell his or her vote using the
receipt.43
At the end of the polling, the old ballot boxes shall be turned over to the accredited citizens'
arm or representatives of the public for the manual verification count of the votes cast. A
member of the Board of Election Inspectors may supervise the count. The result of the
manual verification count (using the old ballot boxes) shall be compared with that of the
automated count (saved in the vote-counting machine).44
Petitioners add that during Senate deliberations,45 the main proponent of the amendatory
law, Former Senator Gordon, highlighted the importance of "an audit trail usually
supported by paper[.]"46
On November 10, 2015, Bagumbayan-VNP, Inc. sent Commission on Elections Chairperson
Bautista a letter demanding the implementation of the VVPAT feature for the May 9, 2016
Elections.47 However, the Commission on Elections never answered the letter.48
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According to petitioners, the inclusion of VVPAT, a "mandatory requirement under the
automated election laws, [has been] flagrantly violated by [COMELEC] during the 2010 and
2013 Elections." They claim that the previous demands made on the Commission on
Elections to reactivate the VVPAT security feature "fell on deaf ears."49 In the 2010 and 2013
Elections, all a voter received from the voting machines were the words, "Congratulations!
Your vote has been counted," or an otherwise similar phrase.50
Petitioners claim that under Section 28 of Republic Act No. 9369, amending Section 35 of
Republic Act No. 8436, anyone "interfering with and impeding . . . the use of computer
counting devices and the processing, storage, generation and transmission of election
results, data or information" commits a felonious act.51 The Commission on Elections
allegedly did so when it refused to implement VVPAT.52
Issue:
Whether the Commission on Elections may be compelled, through a writ of mandamus, to
enable the Voter Verified Paper Audit Trail system capability feature for the 2016 Elections.
Ruling:
The inaction of the Commission on Elections in utilizing the VVPAT feature of the votecounting machines fails to fulfill the duty required under Republic Act No. 8436, as
amended.
Article XI(C), Section 2 of the 1987 Constitution empowered the Commission of Elections
to "[e]nforce and administer all laws and regulations relative to the conduct of an election."
One of the laws that the Commission on Elections must implement is Republic Act No.
8436, as amended by Republic Act No. 9369, which requires the automated election system
to have the capability of providing a voter-verified paper audit trail.
Based on the technical specifications during the bidding, the current vote-counting
machines should meet the minimum system capability of generating a VVPAT. However,
the Commission on Elections' act of rendering inoperative this feature runs contrary to why
the law required this feature in the first place. Under Republic Act No. 8436, as amended,
it is considered a policy of the state that the votes reflect the genuine will of the People.70
The law is clear. A "voter verified paper audit trail" requires the following: (a) individual
voters can verify whether the machines have been able to count their votes; and (b) that
the verification at minimum should be paper based.
There appears to be no room for further interpretation of a "voter verified paper audit trail."
The paper audit trail cannot be considered the physical ballot, because there may be
instances where the machine may translate the ballot differently, or the voter inadvertently
spoils his or her ballot.
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In Maliksi v. Commission on Elections,71 the losing mayoralty candidate questioned the
result of the elections. Upon inspection of the physical ballots, several votes were
invalidated due to the presence of double-shading. However, when the digital printouts of
the ballots were checked, the questioned ballots only had single shade. The physical ballots
were tampered to invalidate several votes.
The situation in Maliksi could have been avoided if the Commission on Elections utilized
the paper audit trail feature of the voting machines. The VVPAT ensures that the
candidates selected by the voter in his or her ballot are the candidates voted upon and
recorded by the vote-counting machine. The voter himself or herself verifies the accuracy
of the vote. In instances of Random Manual Audit72 and election protests, the VVPAT
becomes the best source of raw data for votes.
The required system capabilities under Republic Act No. 8436, as amended, are the
minimum safeguards provided by law. Compliance with the minimum system capabilities
entails costs on the state and its taxpayers. If minimum system capabilities are met but not
utilized, these will be a waste of resources and an affront to the citizens who paid for these
capabilities.
It is true that the Commission on Elections is given ample discretion to administer the
elections, but certainly, its constitutional duty is to "enforce the law." The Commission is
not given the constitutional competence to amend or modify the law it is sworn to uphold.
Section 6(e), (f), and (n) of Republic Act No. 8436, as amended, is law. Should there be
policy objections to it, the remedy is to have Congress amend it.
The Commission on Elections cannot opt to breach the requirements of the law to assuage
its fears regarding the VVPAT. Vote-buying can be averted by placing proper procedures.
The Commission on Elections has the power to choose the appropriate procedure in order
to enforce the VVPAT requirement under the law, and balance it with the constitutional
mandate to secure the secrecy and sanctity of the ballot.
We see no reason why voters should be denied the opportunity to read the voter's receipt
after casting his or her ballot. There is no legal prohibition for the Commission on Elections
to require that after the voter reads and verifies the receipt, he or she is to leave it in a
separate box, not take it out of the precinct. Definitely, the availability of all the voters'
receipts will make random manual audits more accurate.
The credibility of the results of any election depends, to a large extent, on the confidence
of each voter that his or her individual choices have actually been counted. It is in that local
precinct after the voter casts his or her ballot that this confidence starts. It is there where
it will be possible for the voter to believe that his or her participation as sovereign truly
counts.
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BANKERS ASSOCIATION OF THE PHILIPPINES and PERRY L. PE
vs. THE COMMISSION ON ELECTIONS
G.R. No. 206794, November 26, 2013
J. BRION
The court consider it significant that the BSP and the Monetary Board continue to
possess full and sufficient authority to address the Comelec’s concerns and to limit banking
transactions to legitimate purposes without need for any formal Comelec resolution if and
when the need arises.
Facts:
The petitioners, Bankers Association of the Philippines and Perry L. Pe, assail the
constitutionality and legality of the respondent Comelec's Resolution No. 9688 dated May
7, 2013, entitled "In the Matter of Implementing a Money Ban to Deter and Prevent VoteBuying in Connection with the May 13, 2013 National and Local Elections. The petitioners
included a prayer for the issuance of a status quo ante/temporary restraining order and/or
writ of preliminary injunction to enjoin its implementation.
They contend that the Comelec’s Money Ban Resolution was issued without jurisdiction
since the Comelec’s power to supervise and regulate the enjoyment or utilization of
franchises or permits under Section 4, Article IX-C of the Constitution does not extend to
the BSP which is not a holder of any special privilege from the government. The BSP’s power
to regulate and supervise banking operations stems from its mandate under the
Constitution7 and Republic Act (RA) No. 8791 (The General Banking Law of 2000). Section
4, Article IX-C of the Constitution states –
Section 4. 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.
They thus conclude that the Comelec’s power of supervision and regulation cannot be
exercised over the BSP and the Anti-Money Laundering Council (AMLC) as they can
exercise authority only over public transportation and communication entities given
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special privileges by the government. The petitioners also posit that the Comelec’s power
to deputize extends only to law enforcement agencies and only if the President concurs.
Issue:
Whether the Comelec’s power of supervision and regulation can be exercised over the BSP
and the Anti-Money Laundering Council.
Ruling:
The petition is dismissed for being moot and academic.
By its express terms, the Money Ban Resolution was effective only for a specific and limited
time during the May 13, 2013 elections, i.e., from May 8 to 13, 2013. The Court issued a Status
Quo Ante Order on May 10, 2013; thus, the Money Ban Resolution was not in force during
the most critical period of the elections – from May 10, 2013 to actual election day. With the
May 13, 2013 elections over, the Money Ban Resolution no longer finds any application so
that the issues raised have become moot and academic.
The power of judicial review is limited to actual cases or controversies. The Court, as a rule,
will decline to exercise jurisdiction over a case and proceed to dismiss it when the issues
posed have been mooted by supervening events. Mootness intervenes when a ruling from
the Court no longer has any practical value and, from this perspective, effectively ceases to
be a justiciable controversy.
While the Court has recognized exceptions in applying the "moot and academic" principle,
these exceptions relate only to situations where: (1) there is a grave violation of the
Constitution; (2) the situation is of exceptional character and paramount public interest is
involved; (3) the constitutional issue raised requires formulation of controlling principles
to guide the bench, the bar, and the public; and (4) the case is capable of repetition yet
evading review.
In the present case, it is unnecessary to consider the presence of the first, second and third
requirements when nothing in the facts and surrounding circumstances indicate the
presence of the fourth requirement, i.e., the case is capable of repetition yet evading review.
It is to be noted that the Comelec did not make any parallel move on or about the May 13,
2013 elections to address the evil that its Money Ban Resolution sought to avoid and, in fact,
it did not issue a similar resolution for the October 28, 2013 barangay elections. If the May
13, 2013 elections had come and gone without any need for the measures the assailed
Resolution put in place and if no such measure was necessary in the elections that
immediately followed (i.e., the October 28, 2013 barangay elections), The court believe that
it is premature for it to assume that a similar Money Ban Resolution would be issued in the
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succeeding elections such that it now have to consider the legality of the Comelec measure
that is presently assailed.
The court consider it significant that the BSP and the Monetary Board continue to possess
full and sufficient authority to address the Comelec’s concerns and to limit banking
transactions to legitimate purposes without need for any formal Comelec resolution if and
when the need arises. Congress, too, at this point, should have taken note of this case and
has the plenary authority, through its lawmaking powers, to address the circumstances and
evils the Money Ban Resolution sought to address. In other words, Congress can very well
act to consider the required measures for future elections, thus rendering unnecessary
further action on the merits of the assailed Money Ban Resolution at this point.
MARC DOUGLAS IV C. CAGAS vs. COMMISSION ON ELECTIONS et. al
G.R. No. 209185, October 25, 2013
J. Carpio
The Constitution grants the COMELEC the power to "enforce and administer all
laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum
and recall." The COMELEC has "exclusive charge of the enforcement and administration of
all laws relative to the conduct of elections for the purpose of ensuring free, orderly and
honest elections. It is thus not novel for this Court to uphold the COMELEC’s broad power
or authority to fix other dates for a plebiscite to enable the people to exercise their right of
suffrage.
Facts:
Cagas, while he was representative of the first legislative district of Davao del Sur, filed with
Hon. Franklin Bautista, then representative of the second legislative district of the same
province a bill creating the province of Davao Occidental. It was signed into law as Republic
Act No. 10360 (R.A. No. 10360), the Charter of the Province of Davao Occidental.
Section 46 of R.A. No. 10360 provides for the date of the holding of a plebiscite.
Sec. 46. Plebiscite. – The Province of Davao Occidental shall be created, as
provided for in this Charter, upon approval by the majority of the votes cast
by the voters of the affected areas in a plebiscite to be conducted and
supervised by the Commission on Elections (COMELEC) within sixty (60)
days from the date of the effectivity of this Charter.
R.A. No. 10360 was passed by the House of Representatives on 28 November 2012, and by
the Senate on 5 December 2012. President Benigno S. Aquino III approved R.A. No. 10360
on 14 January 2013. R.A. No. 10360 was published in the Philippine Star and the Manila
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Bulletin only on 21 January 2013. Considering that R.A. No. 10360 shall take effect 15 days
after its publication in at least two newspapers of general and local circulation, COMELEC,
therefore, only had until 6 April 2013 to conduct the plebiscite.
As early as 27 November 2012, prior to the effectivity of R.A. No. 10360, the COMELEC
suspended the conduct of all plebiscites as a matter of policy and in view of the preparations
for the 13 May 2013 National and Local Elections. On 9 July 2013, the COMELEC extended
the policy on suspension of the holding of plebiscites by resolving to defer action on the
holding of all plebiscites until after the 28 October 2013 Barangay Elections. During a
meeting held on 31 July 2013, the COMELEC decided to hold the plebiscite for the creation
of Davao Occidental simultaneously with the 28 October 2013 Barangay.
On 9 October 2013, Cagas filed the present petition for prohibition. Cagas views the period
"60 days from the effectivity" in R.A. No. 10360 as absolute and mandatory; thus, COMELEC
has no legal basis to hold a plebiscite on 28 October 2013.
Issue:
Whether the COMELEC act without or in excess of its jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction when it resolved to hold the plebiscite
for the creation of the Province of Davao Occidental on 28 October 2013, simultaneous with
the Barangay Elections?
Ruling:
The petition is denied.
The COMELEC’s power to administer elections includes the power to conduct a plebiscite
beyond the schedule prescribed by law.
The conduct of a plebiscite is necessary for the creation of a province as provided in the
Constitution. The Constitution however does not specify a date as to when plebiscites
should be held. The Constitution recognizes that the power to fix the date of elections is
legislative in nature.
Section 10 of R.A. No. 7160 furnishes the general rule as to when a plebiscite may be held:
Sec. 10. Plebiscite Requirement. – No creation, division, merger, abolition, or
substantial alteration of boundaries of local government units shall take
effect unless approved by a majority of the votes cast in a plebiscite called for
the purpose in the political unit or units directly affected. Said plebiscite shall
be conducted by the Commission on Elections (COMELEC) within one
hundred twenty (120) days from the date of effectivity of the law or ordinance
effecting such action, unless said law or ordinance fixed another date.
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Section 46 of R.A. No. 10360, however, specifically provides that the plebiscite for the
creation of the province of Davao Occidental be held within 60 days from the effectivity of
R.A. No. 10360, or until 6 April 2013. Cagas claims that R.A. No. 10360 "did not confer
express or implied power to COMELEC to exercise discretion when the plebiscite for the
creation of the Province of Davao Occidental will be held. On the contrary, said law
provides a specific period when the COMELEC should conduct a plebiscite." Cagas views
the period "60 days from the effectivity" in R.A. No. 10360 as absolute and mandatory; thus,
COMELEC has no legal basis to hold a plebiscite on 28 October 2013.
The Constitution, however, grants the COMELEC the power to "enforce and administer all
laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum
and recall." The COMELEC has "exclusive charge of the enforcement and administration of
all laws relative to the conduct of elections for the purpose of ensuring free, orderly and
honest elections."
Sections 5 and 6 of the Omnibus Election Code provide the COMELEC the power to set
elections to another date.
The tight time frame in the enactment, signing into law, and effectivity of R.A. No. 10360
on 5 February 2013, coupled with the subsequent conduct of the National and Local
Elections on 13 May 2013 as mandated by the Constitution, rendered impossible the holding
of a plebiscite for the creation of the province of Davao Occidental on or before 6 April 2013
as scheduled in R.A. No. 10360. We also take judicial notice of the COMELEC’s burden in
the accreditation and registration of candidates for the Party-List Elections. The logistic
and financial impossibility of holding a plebiscite so close to the National