EN BANC
G.R. No. 157870
November 3, 2008
SOCIAL JUSTICE SOCIETY (SJS), petitioner
vs.
DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY (PDEA), respondents.
DECISION
VELASCO, JR., J.:
In these kindred petitions, the constitutionality of Section 36 of Republic Act No. (RA) 9165, otherwise known
as the Comprehensive Dangerous Drugs Act of 2002, insofar as it requires mandatory drug testing of
candidates for public office, students of secondary and tertiary schools, officers and employees of public and
private offices, and persons charged before the prosecutor's office with certain offenses, among other
personalities, is put in issue.
As far as pertinent, the challenged section reads as follows:
SEC. 36. Authorized Drug Testing. - Authorized drug testing shall be done by any government forensic
laboratories or by any of the drug testing laboratories accredited and monitored by the DOH to
safeguard the quality of the test results. x x x The drug testing shall employ, among others, two (2)
testing methods, the screening test which will determine the positive result as well as the type of drug
used and the confirmatory test which will confirm a positive screening test. x x x The following shall be
subjected to undergo drug testing:
xxxx
(c) Students of secondary and tertiary schools. - Students of secondary and tertiary schools shall,
pursuant to the related rules and regulations as contained in the school's student handbook and with
notice to the parents, undergo a random drug testing x x x;
(d) Officers and employees of public and private offices. - Officers and employees of public and private
offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained
in the company's work rules and regulations, x x x for purposes of reducing the risk in the workplace.
Any officer or employee found positive for use of dangerous drugs shall be dealt with administratively
which shall be a ground for suspension or termination, subject to the provisions of Article 282 of the
Labor Code and pertinent provisions of the Civil Service Law;
xxxx
(f) All persons charged before the prosecutor's office with a criminal offense having an imposable
penalty of imprisonment of not less than six (6) years and one (1) day shall undergo a mandatory drug
test;
(g) All candidates for public office whether appointed or elected both in the national or local government
shall undergo a mandatory drug test.
In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs use
shall be subject to the provisions of Section 15 of this Act.
G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections)
On December 23, 2003, the Commission on Elections (COMELEC) issued Resolution No. 6486, prescribing
the rules and regulations on the mandatory drug testing of candidates for public office in connection with the
May 10, 2004 synchronized national and local elections. The pertinent portions of the said resolution read as
follows:
WHEREAS, Section 36 (g) of Republic Act No. 9165 provides:
SEC. 36. Authorized Drug Testing. - x x x
xxxx
(g) All candidates for public office x x x both in the national or local government shall undergo a
mandatory drug test.
WHEREAS, Section 1, Article XI of the 1987 Constitution provides that public officers and employees
must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty
and efficiency;
WHEREAS, by requiring candidates to undergo mandatory drug test, the public will know the quality of
candidates they are electing and they will be assured that only those who can serve with utmost
responsibility, integrity, loyalty, and efficiency would be elected x x x.
NOW THEREFORE, The [COMELEC], pursuant to the authority vested in it under the Constitution,
Batas Pambansa Blg. 881 (Omnibus Election Code), [RA] 9165 and other election laws, RESOLVED to
promulgate, as it hereby promulgates, the following rules and regulations on the conduct of mandatory
drug testing to candidates for public office[:]
SECTION 1. Coverage. - All candidates for public office, both national and local, in the May 10,
2004 Synchronized National and Local Elections shall undergo mandatory drug test in government
forensic laboratories or any drug testing laboratories monitored and accredited by the Department of
Health.
SEC. 3. x x x
On March 25, 2004, in addition to the drug certificates filed with their respective offices, the Comelec
Offices and employees concerned shall submit to the Law Department two (2) separate lists of
candidates. The first list shall consist of those candidates who complied with the mandatory drug test
while the second list shall consist of those candidates who failed to comply x x x.
SEC. 4. Preparation and publication of names of candidates. - Before the start of the campaign period,
the [COMELEC] shall prepare two separate lists of candidates. The first list shall consist of those
candidates who complied with the mandatory drug test while the second list shall consist of those
candidates who failed to comply with said drug test. x x x
SEC. 5. Effect of failure to undergo mandatory drug test and file drug test certificate . - No person
elected to any public office shall enter upon the duties of his office until he has undergone mandatory
drug test and filed with the offices enumerated under Section 2 hereof the drug test certificate herein
required. (Emphasis supplied.)
Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a candidate for re - election in the May 10,
2004 elections,1 filed a Petition for Certiorari and Prohibition under Rule 65. In it, he seeks (1) to nullify Sec.
36(g) of RA 9165 and COMELEC Resolution No. 6486 dated December 23, 2003 for being unconstitutional in
that they impose a qualification for candidates for senators in addition to those already provided for in the
1987 Constitution; and (2) to enjoin the COMELEC from implementing Resolution No. 6486.
Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the Constitution, which states:
SECTION 3. No person shall be a Senator unless he is a natural - born citizen of the Philippines, and,
on the day of the election, is at least thirty - five years of age, able to read and write, a registered voter,
and a resident of the Philippines for not less than two years immediately preceding the day of the
election.
According to Pimentel, the Constitution only prescribes a maximum of five (5) qualifications for one to be a
candidate for, elected to, and be a member of the Senate. He says that both the Congress and COMELEC, by
requiring, via RA 9165 and Resolution No. 6486, a senatorial aspirant, among other candidates, to undergo a
mandatory drug test, create an additional qualification that all candidates for senator must first be certified as
drug free. He adds that there is no provision in the Constitution authorizing the Congress or COMELEC to
expand the qualification requirements of candidates for senator.
G.R. No. 157870 (Social Justice Society v. Dangerous
Drugs Board and Philippine Drug Enforcement Agency)
In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a registered political party,
seeks to prohibit the Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency (PDEA)
from enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the ground that they are
constitutionally infirm. For one, the provisions constitute undue delegation of legislative power when they give
unbridled discretion to schools and employers to determine the manner of drug testing. For another, the
provisions trench in the equal protection clause inasmuch as they can be used to harass a student or an
employee deemed undesirable. And for a third, a person's constitutional right against unreasonable searches
is also breached by said provisions.
G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous
Drugs Board and Philippine Drug Enforcement Agency)
Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition for Certiorari and
Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as unconstitutional for
infringing on the constitutional right to privacy, the right against unreasonable search and seizure, and the
right against self - incrimination, and for being contrary to the due process and equal protection guarantees.
The Issue on Locus Standi
First off, we shall address the justiciability of the cases at bench and the matter of the standing of petitioners
SJS and Laserna to sue. As respondents DDB and PDEA assert, SJS and Laserna failed to allege any
incident amounting to a violation of the constitutional rights mentioned in their separate petitions. 2
It is basic that the power of judicial review can only be exercised in connection with a bona fide controversy
which involves the statute sought to be reviewed. 3 But even with the presence of an actual case or
controversy, the Court may refuse to exercise judicial review unless the constitutional question is brought
before it by a party having the requisite standing to challenge it. 4 To have standing, one must establish that he
or she has suffered some actual or threatened injury as a result of the allegedly illegal conduct of the
government; the injury is fairly traceable to the challenged action; and the injury is likely to be redressed by a
favorable action.5
The rule on standing, however, is a matter of procedure; hence, it can be relaxed for non - traditional plaintiffs,
like ordinary citizens, taxpayers, and legislators when the public interest so requires, such as when the matter
is of transcendental importance, of overarching significance to society, or of paramount public interest. 6 There
is no doubt that Pimentel, as senator of the Philippines and candidate for the May 10, 2004 elections,
possesses the requisite standing since he has substantial interests in the subject matter of the petition,
among other preliminary considerations. Regarding SJS and Laserna, this Court is wont to relax the rule
on locus standi owing primarily to the transcendental importance and the paramount public interest involved in
the enforcement of Sec. 36 of RA 9165.
The Consolidated Issues
The principal issues before us are as follows:
(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for
candidates for senator? Corollarily, can Congress enact a law prescribing qualifications for candidates for
senator in addition to those laid down by the Constitution? and
(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do these
paragraphs violate the right to privacy, the right against unreasonable searches and seizure, and the equal
protection clause? Or do they constitute undue delegation of legislative power?
Pimentel Petition
(Constitutionality of Sec. 36[g] of RA 9165 and
COMELEC Resolution No. 6486)
In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 illegally impose
an additional qualification on candidates for senator. He points out that, subject to the provisions on nuisance
candidates, a candidate for senator needs only to meet the qualifications laid down in Sec. 3, Art. VI of the
Constitution, to wit: (1) citizenship, (2) voter registration, (3) literacy, (4) age, and (5) residency. Beyond these
stated qualification requirements, candidates for senator need not possess any other qualification to run for
senator and be voted upon and elected as member of the Senate. The Congress cannot validly amend or
otherwise modify these qualification standards, as it cannot disregard, evade, or weaken the force of a
constitutional mandate,7 or alter or enlarge the Constitution.
Pimentel's contention is well - taken. Accordingly, Sec. 36(g) of RA 9165 should be, as it is hereby declared
as, unconstitutional. It is basic that if a law or an administrative rule violates any norm of the Constitution, that
issuance is null and void and has no effect. The Constitution is the basic law to which all laws must conform;
no act shall be valid if it conflicts with the Constitution. 8 In the discharge of their defined functions, the three
departments of government have no choice but to yield obedience to the commands of the Constitution.
Whatever limits it imposes must be observed.9
Congress' inherent legislative powers, broad as they may be, are subject to certain limitations. As early as
1927, in Government v. Springer, the Court has defined, in the abstract, the limits on legislative power in the
following wise:
Someone has said that the powers of the legislative department of the Government, like the
boundaries of the ocean, are unlimited. In constitutional governments, however, as well as
governments acting under delegated authority, the powers of each of the departments x x x are limited
and confined within the four walls of the constitution or the charter, and each department can only
exercise such powers as are necessarily implied from the given powers. The Constitution is the shore
of legislative authority against which the waves of legislative enactment may dash, but over which it
cannot leap.10
Thus, legislative power remains limited in the sense that it is subject to substantive and constitutional
limitations which circumscribe both the exercise of the power itself and the allowable subjects of
legislation.11 The substantive constitutional limitations are chiefly found in the Bill of Rights 12 and other
provisions, such as Sec. 3, Art. VI of the Constitution prescribing the qualifications of candidates for senators.
In the same vein, the COMELEC cannot, in the guise of enforcing and administering election laws or
promulgating rules and regulations to implement Sec. 36(g), validly impose qualifications on candidates for
senator in addition to what the Constitution prescribes. If Congress cannot require a candidate for senator to
meet such additional qualification, the COMELEC, to be sure, is also without such power. The right of a citizen
in the democratic process of election should not be defeated by unwarranted impositions of requirement not
otherwise specified in the Constitution.13
Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution, effectively
enlarges the qualification requirements enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said
Sec. 36(g) unmistakably requires a candidate for senator to be certified illegal - drug clean, obviously as a pre
- condition to the validity of a certificate of candidacy for senator or, with like effect, a condition sine qua non to
be voted upon and, if proper, be proclaimed as senator - elect. The COMELEC resolution completes the chain
with the proviso that "[n]o person elected to any public office shall enter upon the duties of his office until he
has undergone mandatory drug test." Viewed, therefore, in its proper context, Sec. 36(g) of RA 9165 and the
implementing COMELEC Resolution add another qualification layer to what the 1987 Constitution, at the
minimum, requires for membership in the Senate. Whether or not the drug - free bar set up under the
challenged provision is to be hurdled before or after election is really of no moment, as getting elected would
be of little value if one cannot assume office for non - compliance with the drug - testing requirement.
It may of course be argued, in defense of the validity of Sec. 36(g) of RA 9165, that the provision does not
expressly state that non - compliance with the drug test imposition is a disqualifying factor or would work to
nullify a certificate of candidacy. This argument may be accorded plausibility if the drug test requirement is
optional. But the particular section of the law, without exception, made drug - testing on those covered
mandatory, necessarily suggesting that the obstinate ones shall have to suffer the adverse consequences for
not adhering to the statutory command. And since the provision deals with candidates for public office, it
stands to reason that the adverse consequence adverted to can only refer to and revolve around the election
and the assumption of public office of the candidates. Any other construal would reduce the mandatory nature
of Sec. 36(g) of RA 9165 into a pure jargon without meaning and effect whatsoever.
While it is anti - climactic to state it at this juncture, COMELEC Resolution No. 6486 is no longer enforceable,
for by its terms, it was intended to cover only the May 10, 2004 synchronized elections and the candidates
running in that electoral event. Nonetheless, to obviate repetition, the Court deems it appropriate to review
and rule, as it hereby rules, on its validity as an implementing issuance.
It ought to be made abundantly clear, however, that the unconstitutionality of Sec. 36(g) of RA 9165 is rooted
on its having infringed the constitutional provision defining the qualification or eligibility requirements for one
aspiring to run for and serve as senator.
SJS Petition
(Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)
The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and tertiary level students
and public and private employees, while mandatory, is a random and suspicionless arrangement. The
objective is to stamp out illegal drug and safeguard in the process "the well being of [the] citizenry, particularly
the youth, from the harmful effects of dangerous drugs." This statutory purpose, per the policy - declaration
portion of the law, can be achieved via the pursuit by the state of "an intensive and unrelenting campaign
against the trafficking and use of dangerous drugs x x x through an integrated system of planning,
implementation and enforcement of anti - drug abuse policies, programs and projects." 14 The primary
legislative intent is not criminal prosecution, as those found positive for illegal drug use as a result of this
random testing are not necessarily treated as criminals. They may even be exempt from criminal liability
should the illegal drug user consent to undergo rehabilitation. Secs. 54 and 55 of RA 9165 are clear on this
point:
Sec. 54. Voluntary Submission of a Drug Dependent to Confinement, Treatment and Rehabilitation. - A
drug dependent or any person who violates Section 15 of this Act may, by himself/herself or through
his/her parent, [close relatives] x x x apply to the Board x x x for treatment and rehabilitation of the drug
dependency. Upon such application, the Board shall bring forth the matter to the Court which shall
order that the applicant be examined for drug dependency. If the examination x x x results in the
certification that the applicant is a drug dependent, he/she shall be ordered by the Court to undergo
treatment and rehabilitation in a Center designated by the Board x x x.
xxxx
Sec. 55. Exemption from the Criminal Liability Under the Voluntary Submission Program. - A drug
dependent under the voluntary submission program, who is finally discharged from confinement, shall
be exempt from the criminal liability under Section 15 of this Act subject to the following conditions:
xxxx
School children, the US Supreme Court noted, are most vulnerable to the physical, psychological, and
addictive effects of drugs. Maturing nervous systems of the young are more critically impaired by intoxicants
and are more inclined to drug dependency. Their recovery is also at a depressingly low rate. 15
The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the
guarantee against unreasonable search and seizure 16 under Sec. 2, Art. III17 of the Constitution. But while the
right to privacy has long come into its own, this case appears to be the first time that the validity of a state decreed search or intrusion through the medium of mandatory random drug testing among students and
employees is, in this jurisdiction, made the focal point. Thus, the issue tendered in these proceedings is
veritably one of first impression.
US jurisprudence is, however, a rich source of persuasive jurisprudence. With respect to random drug testing
among school children, we turn to the teachings of Vernonia School District 47J v. Acton (Vernonia) and
Board of Education of Independent School District No. 92 of Pottawatomie County, et al. v. Earls, et al. (Board
of Education),18 both fairly pertinent US Supreme Court - decided cases involving the constitutionality of
governmental search.
In Vernonia, school administrators in Vernonia, Oregon wanted to address the drug menace in their respective
institutions following the discovery of frequent drug use by school athletes. After consultation with the parents,
they required random urinalysis drug testing for the school's athletes. James Acton, a high school student,
was denied participation in the football program after he refused to undertake the urinalysis drug testing.
Acton forthwith sued, claiming that the school's drug testing policy violated, inter alia, the Fourth
Amendment19 of the US Constitution.
The US Supreme Court, in fashioning a solution to the issues raised in Vernonia, considered the following: (1)
schools stand in loco parentis over their students; (2) school children, while not shedding their constitutional
rights at the school gate, have less privacy rights; (3) athletes have less privacy rights than non - athletes
since the former observe communal undress before and after sports events; (4) by joining the sports activity,
the athletes voluntarily subjected themselves to a higher degree of school supervision and regulation; (5)
requiring urine samples does not invade a student's privacy since a student need not undress for this kind of
drug testing; and (6) there is need for the drug testing because of the dangerous effects of illegal drugs on the
young. The US Supreme Court held that the policy constituted reasonable search under the Fourth 20 and
14th Amendments and declared the random drug - testing policy constitutional.
In Board of Education, the Board of Education of a school in Tecumseh, Oklahoma required a drug test for
high school students desiring to join extra - curricular activities. Lindsay Earls, a member of the show choir,
marching band, and academic team declined to undergo a drug test and averred that the drug - testing policy
made to apply to non - athletes violated the Fourth and 14th Amendments. As Earls argued, unlike athletes
who routinely undergo physical examinations and undress before their peers in locker rooms, non - athletes
are entitled to more privacy.
The US Supreme Court, citing Vernonia, upheld the constitutionality of drug testing even among non athletes on the basis of the school's custodial responsibility and authority. In so ruling, said court made no
distinction between a non - athlete and an athlete. It ratiocinated that schools and teachers act in place of the
parents with a similar interest and duty of safeguarding the health of the students. And in holding that the
school could implement its random drug - testing policy, the Court hinted that such a test was a kind of search
in which even a reasonable parent might need to engage.
In sum, what can reasonably be deduced from the above two cases and applied to this jurisdiction are: (1)
schools and their administrators stand in loco parentis with respect to their students; (2) minor students have
contextually fewer rights than an adult, and are subject to the custody and supervision of their parents,
guardians, and schools; (3) schools, acting in loco parentis, have a duty to safeguard the health and well being of their students and may adopt such measures as may reasonably be necessary to discharge such
duty; and (4) schools have the right to impose conditions on applicants for admission that are fair, just, and
non-discriminatory.
Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of RA
9165 requiring mandatory, random, and suspicionless drug testing of students are constitutional. Indeed, it is
within the prerogative of educational institutions to require, as a condition for admission, compliance with
reasonable school rules and regulations and policies. To be sure, the right to enroll is not absolute; it is
subject to fair, reasonable, and equitable requirements.
The Court can take judicial notice of the proliferation of prohibited drugs in the country that threatens the well being of the people,21 particularly the youth and school children who usually end up as victims. Accordingly,
and until a more effective method is conceptualized and put in motion, a random drug testing of students in
secondary and tertiary schools is not only acceptable but may even be necessary if the safety and interest of
the student population, doubtless a legitimate concern of the government, are to be promoted and protected.
To borrow from Vernonia, "[d]eterring drug use by our Nation's schoolchildren is as important as enhancing
efficient enforcement of the Nation's laws against the importation of drugs"; the necessity for the State to act
is magnified by the fact that the effects of a drug - infested school are visited not just upon the users, but upon
the entire student body and faculty. 22 Needless to stress, the random testing scheme provided under the law
argues against the idea that the testing aims to incriminate unsuspecting individual students.
Just as in the case of secondary and tertiary level students, the mandatory but random drug test prescribed
by Sec. 36 of RA 9165 for officers and employees of public and private offices is justifiable, albeit not exactly
for the same reason. The Court notes in this regard that petitioner SJS, other than saying that "subjecting
almost everybody to drug testing, without probable cause, is unreasonable, an unwarranted intrusion of the
individual right to privacy,"23 has failed to show how the mandatory, random, and suspicionless drug testing
under Sec. 36(c) and (d) of RA 9165 violates the right to privacy and constitutes unlawful and/or unconsented
search under Art. III, Secs. 1 and 2 of the Constitution. 24 Petitioner Laserna's lament is just as simplistic,
sweeping, and gratuitous and does not merit serious consideration. Consider what he wrote without
elaboration:
The US Supreme Court and US Circuit Courts of Appeals have made various rulings on the
constitutionality of mandatory drug tests in the school and the workplaces. The US courts have been
consistent in their rulings that the mandatory drug tests violate a citizen's constitutional right to privacy
and right against unreasonable search and seizure. They are quoted extensively hereinbelow. 25
The essence of privacy is the right to be left alone. 26 In context, the right to privacy means the right to be free
from unwarranted exploitation of one's person or from intrusion into one's private activities in such a way as to
cause humiliation to a person's ordinary sensibilities. 27 And while there has been general agreement as to
the basic function of the guarantee against unwarranted search, "translation of the abstract prohibition against
‘unreasonable searches and seizures' into workable broad guidelines for the decision of particular cases is a
difficult task," to borrow from C. Camara v. Municipal Court.28 Authorities are agreed though that the right to
privacy yields to certain paramount rights of the public and defers to the state's exercise of police power. 29
As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been held,
"reasonableness" is the touchstone of the validity of a government search or intrusion. 30 And whether a
search at issue hews to the reasonableness standard is judged by the balancing of the government mandated intrusion on the individual's privacy interest against the promotion of some compelling state
interest.31 In the criminal context, reasonableness requires showing of probable cause to be personally
determined by a judge. Given that the drug - testing policy for employees--and students for that matter--under
RA 9165 is in the nature of administrative search needing what was referred to in Vernonia as "swift and
informal disciplinary procedures," the probable - cause standard is not required or even practicable. Be that
as it may, the review should focus on the reasonableness of the challenged administrative search in question.
The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the
drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this
case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the
employees and the reasonableness of drug testing requirement. The employees' privacy interest in an office
is to a large extent circumscribed by the company's work policies, the collective bargaining agreement, if any,
entered into by management and the bargaining unit, and the inherent right of the employer to maintain
discipline and efficiency in the workplace. Their privacy expectation in a regulated office environment is, in
fine, reduced; and a degree of impingement upon such privacy has been upheld.
Just as defining as the first factor is the character of the intrusion authorized by the challenged law. Reduced
to a question form, is the scope of the search or intrusion clearly set forth, or, as formulated in Ople v. Torres,
is the enabling law authorizing a search "narrowly drawn" or "narrowly focused"? 32
The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and its implementing rules and
regulations (IRR), as couched, contain provisions specifically directed towards preventing a situation that
would unduly embarrass the employees or place them under a humiliating experience. While every officer and
employee in a private establishment is under the law deemed forewarned that he or she may be a possible
subject of a drug test, nobody is really singled out in advance for drug testing. The goal is to discourage drug
use by not telling in advance anyone when and who is to be tested. And as may be observed, Sec. 36(d) of
RA 9165 itself prescribes what, in Ople, is a narrowing ingredient by providing that the employees concerned
shall be subjected to "random drug test as contained in the company's work rules and regulations x x x for
purposes of reducing the risk in the work place."
For another, the random drug testing shall be undertaken under conditions calculated to protect as much as
possible the employee's privacy and dignity. As to the mechanics of the test, the law specifies that the
procedure shall employ two testing methods, i.e., the screening test and the confirmatory test, doubtless to
ensure as much as possible the trustworthiness of the results. But the more important consideration lies in the
fact that the test shall be conducted by trained professionals in access - controlled laboratories monitored by
the Department of Health (DOH) to safeguard against results tampering and to ensure an accurate chain of
custody.33 In addition, the IRR issued by the DOH provides that access to the drug results shall be on the
"need to know" basis;34 that the "drug test result and the records shall be [kept] confidential subject to the
usual accepted practices to protect the confidentiality of the test results." 35 Notably, RA 9165 does not oblige
the employer concerned to report to the prosecuting agencies any information or evidence relating to the
violation of the Comprehensive Dangerous Drugs Act received as a result of the operation of the drug testing.
All told, therefore, the intrusion into the employees' privacy, under RA 9165, is accompanied by proper
safeguards, particularly against embarrassing leakages of test results, and is relatively minimal.
To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus protect the
well - being of the citizens, especially the youth, from the deleterious effects of dangerous drugs. The law
intends to achieve this through the medium, among others, of promoting and resolutely pursuing a national
drug abuse policy in the workplace via a mandatory random drug test. 36 To the Court, the need for drug
testing to at least minimize illegal drug use is substantial enough to override the individual's privacy interest
under the premises. The Court can consider that the illegal drug menace cuts across gender, age group, and
social - economic lines. And it may not be amiss to state that the sale, manufacture, or trafficking of illegal
drugs, with their ready market, would be an investor's dream were it not for the illegal and immoral
components of any of such activities. The drug problem has hardly abated since the martial law public
execution of a notorious drug trafficker. The state can no longer assume a laid back stance with respect to this
modern - day scourge. Drug enforcement agencies perceive a mandatory random drug test to be an effective
way of preventing and deterring drug use among employees in private offices, the threat of detection by
random testing being higher than other modes. The Court holds that the chosen method is a reasonable and
enough means to lick the problem.
Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the
employees, the compelling state concern likely to be met by the search, and the well - defined limits set forth
in the law to properly guide authorities in the conduct of the random testing, we hold that the challenged drug
test requirement is, under the limited context of the case, reasonable and, ergo, constitutional.
Like their counterparts in the private sector, government officials and employees also labor under reasonable
supervision and restrictions imposed by the Civil Service law and other laws on public officers, all enacted to
promote a high standard of ethics in the public service. 37 And if RA 9165 passes the norm of reasonableness
for private employees, the more reason that it should pass the test for civil servants, who, by constitutional
command, are required to be accountable at all times to the people and to serve them with utmost
responsibility and efficiency.38
Petitioner SJS' next posture that Sec. 36 of RA 9165 is objectionable on the ground of undue delegation of
power hardly commends itself for concurrence. Contrary to its position, the provision in question is not so
extensively drawn as to give unbridled options to schools and employers to determine the manner of drug
testing. Sec. 36 expressly provides how drug testing for students of secondary and tertiary schools and
officers/employees of public/private offices should be conducted. It enumerates the persons who shall
undergo drug testing. In the case of students, the testing shall be in accordance with the school rules as
contained in the student handbook and with notice to parents. On the part of officers/employees, the testing
shall take into account the company's work rules. In either case, the random procedure shall be observed,
meaning that the persons to be subjected to drug test shall be picked by chance or in an unplanned way. And
in all cases, safeguards against misusing and compromising the confidentiality of the test results are
established.
Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation with the DOH,
Department of the Interior and Local Government, Department of Education, and Department of Labor and
Employment, among other agencies, the IRR necessary to enforce the law. In net effect then, the participation
of schools and offices in the drug testing scheme shall always be subject to the IRR of RA 9165. It is,
therefore, incorrect to say that schools and employers have unchecked discretion to determine how often,
under what conditions, and where the drug tests shall be conducted.
The validity of delegating legislative power is now a quiet area in the constitutional landscape. 39 In the face of
the increasing complexity of the task of the government and the increasing inability of the legislature to cope
directly with the many problems demanding its attention, resort to delegation of power, or entrusting to
administrative agencies the power of subordinate legislation, has become imperative, as here.
Laserna Petition (Constitutionality of Sec. 36[c], [d],
[f], and [g] of RA 9165)
Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for
mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability of
the mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver by the
students of their right to privacy when they seek entry to the school, and from their voluntarily submitting their
persons to the parental authority of school authorities. In the case of private and public employees, the
constitutional soundness of the mandatory, random, and suspicionless drug testing proceeds from the
reasonableness of the drug test policy and requirement.
We find the situation entirely different in the case of persons charged before the public prosecutor's office with
criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative concepts in the
mandatory drug testing are "randomness" and "suspicionless." In the case of persons charged with a crime
before the prosecutor's office, a mandatory drug testing can never be random or suspicionless. The ideas of
randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint.
They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a
crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by
the bare fact of being haled before the prosecutor's office and peaceably submitting themselves to drug
testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to
privacy.40 To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as
a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would
violate a persons' right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused
persons are veritably forced to incriminate themselves.
WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and declares Sec. 36(g) of RA
9165 and COMELEC Resolution No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY GRANT the
petition in G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) of RA 9165 CONSTITUTIONAL, but
declaring its Sec. 36(f) UNCONSTITUTIONAL. All concerned agencies are, accordingly, permanently enjoined
from implementing Sec. 36(f) and (g) of RA 9165. No costs.
SO ORDERED.
G.R No. 188078
January 25, 2010
VICTORINO B. ALDABA, CARLO JOLETTE S. FAJARDO, JULIO G. MORADA, and MINERVA ALDABA
MORADA, Petitioners,
vs.
COMMISSION ON ELECTIONS, Respondent.
DECISION
CARPIO, J.:
The Case
This is an original action for Prohibition to declare unconstitutional Republic Act No. 9591 (RA 9591), creating
a legislative district for the city of Malolos, Bulacan, for violating the minimum population requirement for the
creation of a legislative district in a city.
Antecedents
Before 1 May 2009, the province of Bulacan was represented in Congress through four legislative districts.
The First Legislative District comprised of the city of Malolos1 and the municipalities of Hagonoy, Calumpit,
Pulilan, Bulacan, and Paombong. On 1 May 2009, RA 9591 lapsed into law, amending Malolos’ City
Charter,2 by creating a separate legislative district for the city. At the time the legislative bills for RA 9591 were
filed in Congress in 2007, namely, House Bill No. 3162 (later converted to House Bill No. 3693) and Senate
Bill No. 1986, the population of Malolos City was 223,069. The population of Malolos City on 1 May 2009 is a
contested fact but there is no dispute that House Bill No. 3693 relied on an undated certification issued by a
Regional Director of the National Statistics Office (NSO) that "the projected population of the Municipality of
Malolos will be 254,030 by the year 2010 using the population growth rate of 3.78 between 1995 to 2000."3
Petitioners, taxpayers, registered voters and residents of Malolos City, filed this petition contending that RA
9591 is unconstitutional for failing to meet the minimum population threshold of 250,000 for a city to merit
representation in Congress as provided under Section 5(3), Article VI of the 1987 Constitution and Section 3
of the Ordinance appended to the 1987 Constitution.
In its Comment to the petition, the Office of the Solicitor General (OSG) contended that Congress’ use of
projected population is non-justiciable as it involves a determination on the "wisdom of the standard adopted
by the legislature to determine compliance with [a constitutional requirement]."4
The Ruling of the Court
We grant the petition and declare RA 9591 unconstitutional for being violative of Section 5(3), Article VI of the
1987 Constitution and Section 3 of the Ordinance appended to the 1987 Constitution
The 1987 Constitution requires that for a city to have a legislative district, the city must have "a population of
at least two hundred fifty thousand."5 The only issue here is whether the City of Malolos has a population of at
least 250,000, whether actual or projected, for the purpose of creating a legislative district for the City of
Malolos in time for the 10 May 2010 elections. If not, then RA 9591 creating a legislative district in the City of
Malolos is unconstitutional.
House Bill No. 3693 cites the undated Certification of Regional Director Alberto N. Miranda of Region III of the
National Statistics Office (NSO) as authority that the population of the City of Malolos "will be 254,030 by the
year 2010." The Certification states that the population of "Malolos, Bulacan as of May 1, 2000 is 175,291."
The Certification further states that it was "issued upon the request of Mayor Danilo A. Domingo of the City of
Malolos in connection with the proposed creation of Malolos City as a lone congressional district of the
Province of Bulacan."6
The Certification of Regional Director Miranda, which is based on demographic projections, is without legal
effect because Regional Director Miranda has no basis and no authority to issue the Certification. The
Certification is also void on its face because based on its own growth rate assumption, the population of
Malolos will be less than 250,000 in the year 2010. In addition, intercensal demographic projections cannot be
made for the entire year. In any event, a city whose population has increased to 250,000 is entitled to have a
legislative district only in the "immediately following election"7 after the attainment of the 250,000 population.
First, certifications on demographic projections can be issued only if such projections are declared official by
the National Statistics Coordination Board (NSCB). Second, certifications based on demographic projections
can be issued only by the NSO Administrator or his designated certifying officer. Third, intercensal population
projections must be as of the middle of every year.
Section 6 of Executive Order No. 1358 dated 6 November 1993 issued by President Fidel V. Ramos provides:
SECTION 6. Guidelines on the Issuance of Certification of Population sizes Pursuant to Section 7, 386, 442,
450, 452, and 461 of the New Local Government Code.
(a) The National Statistics Office shall issue certification on data that it has collected and processed as
well as on statistics that it has estimated.
(b) For census years, certification on population size will be based on actual population census counts;
while for the intercensal years, the certification will be made on the basis of a set of demographic
projections or estimates declared official by the National Statistical Coordination Board (NSCB).
(c) Certification of population census counts will be made as of the census reference date, such as
May 1, 1990, while those of intercensal population estimates will be as of middle of every year.
(d) Certification of population size based on projections may specify the range within which the true
count is deemed likely to fall. The range will correspond to the official low and high population
projections.
(e) The smallest geographic area for which a certification on population size may be issued will be the
barangay for census population counts, and the city or municipality for intercensal estimates. If an LGU
wants to conduct its own population census, during off–census years, approval must be sought from
the NSCB and the conduct must be under the technical supervision of NSO from planning to data
processing.
(f) Certifications of population size based on published census results shall be issued by the Provincial
Census Officers or by the Regional Census Officers. Certifications based on projections or estimates,
however, will be issued by the NSO Administrator or his designated certifying officer. (Emphasis
supplied)
The Certification of Regional Director Miranda does not state that the demographic projections he certified
have been declared official by the NSCB. The records of this case do not also show that the Certification of
Regional Director Miranda is based on demographic projections declared official by the NSCB. The
Certification, which states that the population of Malolos "will be 254,030 by the year 2010," violates the
requirement that intercensal demographic projections shall be "as of the middle of every year." In addition,
there is no showing that Regional Director Miranda has been designated by the NSO Administrator as a
certifying officer for demographic projections in Region III. In the absence of such official designation, only the
certification of the NSO Administrator can be given credence by this Court.
Moreover, the Certification states that "the total population of Malolos, Bulacan as of May 1, 2000 is 175,291."
The Certification also states that the population growth rate of Malolos is 3.78% per year between 1995 and
2000. Based on a growth rate of 3.78% per year, the population of Malolos of 175,291 in 2000 will grow to
only 241,550 in 2010.
Also, the 2007 Census places the population of Malolos at 223,069 as of 1 August 2007. 9 Based on a growth
rate of 3.78%, the population of Malolos will grow to only 248,365 as of 1 August 2010. Even if the growth rate
is compounded yearly, the population of Malolos of 223,069 as of 1 August 2007 will grow to only 249,333 as
of 1 August 2010.10
All these conflict with what the Certification states that the population of Malolos "will be 254,030 by the year
2010." Based on the Certification’s own growth rate assumption, the population of Malolos will be less than
250,000 before the 10 May 2010 elections. Incidentally, the NSO has no published population projections for
individual municipalities or cities but only for entire regions and provinces.11
Executive Order No. 135 cannot simply be brushed aside. The OSG, representing respondent Commission on
Elections, invoked Executive Order No. 135 in its Comment, thus:
Here, based on the NSO projection, "the population of the Municipality of Malolos will be 254,030 by the year
2010 using the population growth rate of 3.78 between 1995-2000." This projection issued by the authority of
the NSO Administrator is recognized under Executive Order No. 135 (The Guidelines on the Issuance of
Certification of Population Sizes), which states:
xxx
(d) Certification of population size based on projections may specify the range within which the true count is
deemed likely to fall. The range will correspond to the official low and high population projections.
xxx
(f) Certifications of population size based on published census results shall be issued by the Provincial
Census Officers or by the Regional Census Officers. Certifications based on projections or estimates,
however, will be issued by the NSO Administrator or his designated certifying officer.12 (Emphasis supplied)
Any population projection forming the basis for the creation of a legislative district must be based on an official
and credible source. That is why the OSG cited Executive Order No. 135, otherwise the population projection
would be unreliable or speculative.
Section 3 of the Ordinance appended to the 1987 Constitution provides:
Any province that may be created, or any city whose population may hereafter increase to more than two
hundred fifty thousand shall be entitled in the immediately following election to at least one Member or such
number of members as it may be entitled to on the basis of the number of its inhabitants and according to the
standards set forth in paragraph (3), Section 5 of Article VI of the Constitution. xxx. (Emphasis supplied)
A city that has attained a population of 250,000 is entitled to a legislative district only in the "immediately
following election." In short, a city must first attain the 250,000 population, and thereafter, in the immediately
following election, such city shall have a district representative. There is no showing in the present case that
the City of Malolos has attained or will attain a population of 250,000, whether actual or projected, before the
10 May 2010 elections.
Clearly, there is no official record that the population of the City of Malolos will be at least 250,000, actual or
projected, prior to the 10 May 2010 elections, the immediately following election after the supposed
attainment of such population. Thus, the City of Malolos is not qualified to have a legislative district of its own
under Section 5(3), Article VI of the 1987 Constitution and Section 3 of the Ordinance appended to the 1987
Constitution.
On the OSG’s contention that Congress’ choice of means to comply with the population requirement in the
creation of a legislative district is non-justiciable, suffice it to say that questions calling for judicial
determination of compliance with constitutional standards by other branches of the government are
fundamentally justiciable. The resolution of such questions falls within the checking function of this Court
under the 1987 Constitution to determine whether there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.13
Even under the 1935 Constitution, this Court had already ruled, "The overwhelming weight of authority is that
district apportionment laws are subject to review by the courts."14 Compliance with constitutional standards
on the creation of legislative districts is important because the "aim of legislative apportionment is ‘to equalize
population and voting power among districts.’"15
WHEREFORE, we GRANT the petition. We DECLARE Republic Act No. 9591 UNCONSTITUTIONAL for
being violative of Section 5(3), Article VI of the 1987 Constitution and Section 3 of the Ordinance appended to
the 1987 Constitution.
SO ORDERED.
G.R. No. 180050
April 12, 2011
RODOLFO G. NAVARRO, VICTOR F. BERNAL, and RENE O. MEDINA, Petitioners,
vs.
EXECUTIVE SECRETARY EDUARDO ERMITA, representing the President of the Philippines; Senate of
the Philippines, represented by the SENATE PRESIDENT; House of Representatives, represented by
the HOUSE SPEAKER; GOVERNOR ROBERT ACE S. BARBERS, representing the mother province of
Surigao del Norte; GOVERNOR GERALDINE ECLEO VILLAROMAN, representing the new Province of
Dinagat
Islands, Respondents,
CONGRESSMAN FRANCISCO T. MATUGAS, HON. SOL T. MATUGAS, HON. ARTURO CARLOS A.
EGAY, JR., HON. SIMEON VICENTE G. CASTRENCE, HON. MAMERTO D. GALANIDA, HON.
MARGARITO M. LONGOS, and HON. CESAR M. BAGUNDOL, Intervenors.
RESOLUTION
NACHURA, J.:
For consideration of the Court is the Urgent Motion to Recall Entry of Judgment dated October 20, 2010 filed
by Movant-Intervenors1 dated and filed on October 29, 2010, praying that the Court (a) recall the entry of
judgment, and (b) resolve their motion for reconsideration of the July 20, 2010 Resolution.
To provide a clear perspective of the instant motion, we present hereunder a brief background of the relevant
antecedents—
On October 2, 2006, the President of the Republic approved into law Republic Act (R.A.) No. 9355 (An Act
Creating the Province of Dinagat Islands).2 On December 3, 2006, the Commission on Elections (COMELEC)
conducted the mandatory plebiscite for the ratification of the creation of the province under the Local
Government Code (LGC).3 The plebiscite yielded 69,943 affirmative votes and 63,502 negative votes.4 With
the approval of the people from both the mother province of Surigao del
Norte and the Province of Dinagat Islands (Dinagat), the President appointed the interim set of provincial
officials who took their oath of office on January 26, 2007. Later, during the May 14, 2007 synchronized
elections, the Dinagatnons elected their new set of provincial officials who assumed office on July 1, 2007.5
On November 10, 2006, petitioners Rodolfo G. Navarro, Victor F. Bernal and Rene O. Medina, former political
leaders of Surigao del Norte, filed before this Court a petition for certiorari and prohibition (G.R. No. 175158)
challenging the constitutionality of R.A. No. 9355.6 The Court dismissed the petition on technical grounds.
Their motion for reconsideration was also denied.7
Undaunted, petitioners, as taxpayers and residents of the Province of Surigao del Norte, filed another petition
for certiorari8 seeking to nullify R.A. No. 9355 for being unconstitutional. They alleged that the creation of
Dinagat as a new province, if uncorrected, would perpetuate an illegal act of Congress, and would unjustly
deprive the people of Surigao del Norte of a large chunk of the provincial territory, Internal Revenue Allocation
(IRA), and rich resources from the area. They pointed out that when the law was passed, Dinagat had a land
area of 802.12 square kilometers only and a population of only 106,951, failing to comply with Section 10,
Article X of the Constitution and of Section 461 of the LGC, on both counts, viz.—
Constitution, Article X – Local Government
Section 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its
boundary substantially altered, except in accordance with the criteria established in the local government
code and subject to the approval by a majority of the votes cast in a plebiscite in the political units directly
affected.
LGC, Title IV, Chapter I
Section 461. Requisites for Creation. – (a) A province may be created if it has an average annual income, as
certified by the Department of Finance, of not less than Twenty million pesos (₱20,000,000.00) based on
1991 constant prices and either of the following requisites:
(i) a continuous territory of at least two thousand (2,000) square kilometers, as certified by
the Lands Management Bureau; or
(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified
by the National Statistics Office:
Provided, That, the creation thereof shall not reduce the land area, population, and income
of the original unit or units at the time of said creation to less than the minimum
requirements prescribed herein.
(b) The territory need not be contiguous if it comprises two (2) or more islands or is
separated by a chartered city or cities which do not contribute to the income of the province.
(c) The average annual income shall include the income accruing to the general fund,
exclusive of special funds, trust funds, transfers, and non-recurring income. (Emphasis
supplied.)
On February 10, 2010, the Court rendered its Decision9 granting the petition.10 The Decision
declared R.A. No. 9355 unconstitutional for failure to comply with the requirements on population
and land area in the creation of a province under the LGC. Consequently, it declared the
proclamation of Dinagat and the election of its officials as null and void. The Decision likewise
declared as null and void the provision on Article 9(2) of the Rules and Regulations Implementing
the LGC (LGC-IRR), stating that, "[t]he land area requirement shall not apply where the proposed
province is composed of one (1) or more islands" for being beyond the ambit of Article 461 of the
LGC, inasmuch as such exemption is not expressly provided in the law.11
The Republic, represented by the Office of the Solicitor General, and Dinagat filed their respective motions for
reconsideration of the Decision. In its Resolution12 dated May 12, 2010,13 the Court denied the said
motions.14
Unperturbed, the Republic and Dinagat both filed their respective motions for leave of court to admit their
second motions for reconsideration, accompanied by their second motions for reconsideration. These motions
were eventually "noted without action" by this Court in its June 29, 2010 Resolution.15
Meanwhile, the movants-intervenors filed on June 18, 2010 a Motion for Leave to Intervene and to File and to
Admit Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010. They alleged that the
COMELEC issued Resolution No. 8790, relevant to this case, which provides—
RESOLUTION NO. 8790
WHEREAS, Dinagat Islands, consisting of seven (7) municipalities, were previously components of
the First Legislative District of the Province of Surigao del Norte. In December 2006 pursuant to
Republic Act No. 9355, the Province of Dinagat Island[s] was created and its creation was ratified
on 02 December 2006 in the Plebiscite for this purpose;
WHEREAS, as a province, Dinagat Islands was, for purposes of the May 10, 2010 National and
Local Elections, allocated one (1) seat for Governor, one (1) seat for Vice Governor, one (1) for
congressional seat, and ten (10) Sangguniang Panlalawigan seats pursuant to Resolution No.
8670 dated 16 September 2009;
WHEREAS, the Supreme Court in G.R. No. 180050 entitled "Rodolfo Navarro, et al., vs. Executive
Secretary Eduardo Ermita, as representative of the President of the Philippines, et al." rendered a
Decision, dated 10 February 2010, declaring Republic Act No. 9355 unconstitutional for failure to
comply with the criteria for the creation of a province prescribed in Sec. 461 of the Local
Government Code in relation to Sec. 10, Art. X, of the 1987 Constitution;
WHEREAS, respondents intend to file Motion[s] for Reconsideration on the above decision of the
Supreme Court;
WHEREAS, the electoral data relative to the: (1) position for Member, House of Representatives
representing the lone congressional district of Dinagat Islands, (2) names of the candidates for the
aforementioned position, (3) position for Governor, Dinagat Islands, (4) names of the candidates for
the said position, (5) position of the Vice Governor, (6) the names of the candidates for the said
position, (7) positions for the ten (10) Sangguniang Panlalawigan Members and, [8] all the names
of the candidates for Sangguniang Panlalawigan Members, have already been configured into the
system and can no longer be revised within the remaining period before the elections on May 10,
2010.
NOW, THEREFORE, with the current system configuration, and depending on whether the
Decision of the Supreme Court in Navarro vs. Ermita is reconsidered or not, the Commission
RESOLVED, as it hereby RESOLVES, to declare that:
a. If the Decision is reversed, there will be no problem since the current system configuration
is in line with the reconsidered Decision, meaning that the Province of Dinagat Islands and
the Province of Surigao del Norte remain as two (2) separate provinces;
b. If the Decision becomes final and executory before the election, the Province of Dinagat
Islands will revert to its previous status as part of the First Legislative District, Surigao del
Norte.
But because of the current system configuration, the ballots for the Province of Dinagat
Islands will, for the positions of Member, House of Representatives, Governor, Vice
Governor and Members, Sangguniang Panlalawigan, bear only the names of the candidates
for the said positions.
Conversely, the ballots for the First Legislative District of Surigao del Norte, will, for the
position of Governor, Vice Governor, Member, House of Representatives, First District of
Surigao del Norte and Members, Sangguniang Panlalawigan, show only candidates for the
said position. Likewise, the whole Province of Surigao del Norte, will, for the position of
Governor and Vice Governor, bear only the names of the candidates for the said position[s].
Consequently, the voters of the Province of Dinagat Islands will not be able to vote for the
candidates of Members, Sangguniang Panlalawigan, and Member, House [of]
Representatives, First Legislative District, Surigao del Norte, and candidates for Governor
and Vice Governor for Surigao del Norte. Meanwhile, voters of the First Legislative District of
Surigao del Norte, will not be able to vote for Members, Sangguniang Panlalawigan and
Member, House of Representatives, Dinagat Islands. Also, the voters of the whole Province
of Surigao del Norte, will not be able to vote for the Governor and Vice Governor, Dinagat
Islands. Given this situation, the Commission will postpone the elections for Governor, Vice
Governor, Member, House of Representatives, First Legislative District, Surigao del Norte,
and Members, Sangguniang Panlalawigan, First Legislative District, Surigao del Norte,
because the election will result in [a] failure to elect, since, in actuality, there are no
candidates for Governor, Vice Governor, Members, Sangguniang Panlalawigan, First
Legislative District, and Member, House of Representatives, First Legislative District (with
Dinagat Islands) of Surigao del Norte.
c. If the Decision becomes final and executory after the election, the Province of Dinagat
Islands will revert to its previous status as part of the First Legislative District of Surigao del
Norte. The result of the election will have to be nullified for the same reasons given in Item
"b" above. A special election for Governor, Vice Governor, Member, House of
Representatives, First Legislative District of Surigao del Norte, and Members, Sangguniang
Panlalawigan, First District, Surigao del Norte (with Dinagat Islands) will have to be
conducted.
xxxx
SO ORDERED.
They further alleged that, because they are the duly elected officials of Surigao del Norte whose positions will
be affected by the nullification of the election results in the event that the May 12, 2010 Resolution is not
reversed, they have a legal interest in the instant case and would be directly affected by the declaration of
nullity of R.A. No. 9355. Simply put, movants-intervenors’ election to their respective offices would necessarily
be annulled since Dinagat Islands will revert to its previous status as part of the First Legislative District of
Surigao del Norte and a special election will have to be conducted for governor, vice governor, and House of
Representatives member and Sangguniang Panlalawigan member for the First Legislative District of Surigao
del Norte. Moreover, as residents of Surigao del Norte and as public servants representing the interests of
their constituents, they have a clear and strong interest in the outcome of this case inasmuch as the reversion
of Dinagat as part of the First Legislative District of Surigao del Norte will affect the latter province such that:
(1) the whole administrative set-up of the province will have to be restructured; (2) the services of many
employees will have to be terminated; (3) contracts will have to be invalidated; and (4) projects and other
developments will have to be discontinued. In addition, they claim that their rights cannot be adequately
pursued and protected in any other proceeding since their rights would be foreclosed if the May 12, 2010
Resolution would attain finality.
In their motion for reconsideration of the May 12, 2010 Resolution, movants-intervenors raised three (3) main
arguments to challenge the above Resolution, namely: (1) that the passage of R.A. No. 9355 operates as an
act of Congress amending Section 461 of the LGC; (2) that the exemption from territorial contiguity, when the
intended province consists of two or more islands, includes the exemption from the application of the
minimum land area requirement; and (3) that the Operative Fact Doctrine is applicable in the instant case.
In the Resolution dated July 20, 2010,16 the Court denied the Motion for Leave to Intervene and to File and to
Admit Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010 on the ground that the
allowance or disallowance of a motion to intervene is addressed to the sound discretion of the Court, and that
the appropriate time to file the said motion was before and not after the resolution of this case.
On September 7, 2010, movants-intervenors filed a Motion for Reconsideration of the July 20, 2010
Resolution, citing several rulings17 of the Court, allowing intervention as an exception to Section 2, Rule 19 of
the Rules of Court that it should be filed at any time before the rendition of judgment. They alleged that, prior
to the May 10, 2010 elections, their legal interest in this case was not yet existent. They averred that prior to
the May 10, 2010 elections, they were unaware of the proceedings in this case. Even for the sake of
argument that they had notice of the pendency of the case, they pointed out that prior to the said elections,
Sol T. Matugas was a simple resident of Surigao del Norte, Arturo Carlos A. Egay, Jr. was a member of the
Sangguniang Panlalawigan of the Second District of Surigao del Norte, and Mamerto D. Galanida was the
Municipal Mayor of Socorro, Surigao del Norte, and that, pursuant to COMELEC Resolution No. 8790, it was
only after they were elected as Governor of Surigao del Norte, Vice Governor of Surigao del Norte and
Sangguniang Panlalawigan Member of the First District of Surigao del Norte, respectively, that they became
possessed with legal interest in this controversy.
On October 5, 2010, the Court issued an order for Entry of Judgment, stating that the decision in this case
had become final and executory on May 18, 2010. Hence, the above motion.
At the outset, it must be clarified that this Resolution delves solely on the instant Urgent Motion to Recall Entry
of Judgment of movants-intervenors, not on the second motions for reconsideration of the original parties, and
neither on Dinagat’s Urgent Omnibus Motion, which our
esteemed colleague, Mr. Justice Arturo D. Brion considers as Dinagat’s third motion for reconsideration.
Inasmuch as the motions for leave to admit their respective motions for reconsideration of the May 12, 2010
Resolution and the aforesaid motions for reconsideration were already noted without action by the Court,
there is no reason to treat Dinagat’s Urgent Omnibus Motion differently. In relation to this, the Urgent Motion
to Recall Entry of Judgment of movants-intervenors could not be considered as a second motion for
reconsideration to warrant the application of Section 3, Rule 15 of the Internal Rules of the Supreme
Court.18 It should be noted that this motion prays for the recall of the entry of judgment and for the resolution
of their motion for reconsideration of the July 20, 2010 Resolution which remained unresolved. The denial of
their motion for leave to intervene and to admit motion for reconsideration of the May 12, 2010 Resolution did
not rule on the merits of the motion for reconsideration of the May 12, 2010 Resolution, but only on the
timeliness of the intended intervention. Their motion for reconsideration of this denial elaborated on movantsintervenors’ interest in this case which existed only after judgment had been rendered. As such, their motion
for intervention and their motion for reconsideration of the May 12, 2010 Resolution merely stand as an initial
reconsideration of the said resolution.
With due deference to Mr. Justice Brion, there appears nothing in the records to support the claim that this
was a ploy of respondents’ legal tactician to reopen the case despite an entry of judgment. To be sure, it is
actually COMELEC Resolution No. 8790 that set this controversy into motion anew. To reiterate, the pertinent
portion of the Resolution reads:
c. If the Decision becomes final and executory after the election, the Province of Dinagat Islands will revert to
its previous status as part of the First Legislative District of Surigao del Norte. The result of the election will
have to be nullified for the same reasons given in Item "b" above. A special election for Governor, Vice
Governor, Member, House of Representatives, First Legislative District of Surigao del Norte, and Members,
Sangguniang Panlalawigan, First District, Surigao del Norte (with Dinagat Islands) will have to be conducted.
(Emphasis supplied.)
Indeed, COMELEC Resolution No. 8790 spawned the peculiar circumstance of proper party interest for
movants-intervenors only with the specter of the decision in the main case becoming final and executory.
More importantly, if the intervention be not entertained, the movants-intervenors would be left with no other
remedy as regards to the impending nullification of their election to their respective positions. Thus, to the
Court’s mind, there is an imperative to grant the Urgent Motion to Recall Entry of Judgment by movantsintervenors.
It should be remembered that this case was initiated upon the filing of the petition for certiorari way back on
October 30, 2007. At that time, movants-intervenors had nothing at stake in the outcome of this case. While it
may be argued that their interest in this case should have commenced upon the issuance of COMELEC
Resolution No. 8790, it is obvious that their interest in this case then was more imaginary than real. This is
because COMELEC Resolution No. 8790 provides that should the decision in this case attain finality prior to
the May 10, 2010 elections, the election of the local government officials stated therein would only have to be
postponed. Given such a scenario, movants-intervenors would not have suffered any injury or adverse effect
with respect to the reversion of Dinagat as part of Surigao del Norte since they would simply have remained
candidates for the respective positions they have vied for and to which they have been elected.
For a party to have locus standi, one must allege "such a personal stake in the outcome of the controversy as
to assure that concrete adverseness which sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional questions." Because constitutional cases are often
public actions in which the relief sought is likely to affect other persons, a preliminary question frequently
arises as to this interest in the constitutional question raised.19
It cannot be denied that movants-intervenors will suffer direct injury in the event their Urgent Motion to Recall
Entry of Judgment dated October 29, 2010 is denied and their Motion for Leave to Intervene and to File and
to Admit Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010 is denied with finality.
Indeed, they have sufficiently shown that they have a personal and substantial interest in the case, such that if
the May 12, 2010 Resolution be not reconsidered, their election to their respective positions during the May
10, 2010 polls and its concomitant effects would all be nullified and be put to naught. Given their unique
circumstances, movants-intervenors should not be left without any remedy before this Court simply because
their interest in this case became manifest only after the case had already been decided. The consequences
of such a decision would definitely work to their disadvantage, nay, to their utmost prejudice, without even
them being parties to the dispute. Such decision would also violate their right to due process, a right that cries
out for protection. Thus, it is imperative that the movants-intervenors be heard on the merits of their cause.
We are not only a court of law, but also of justice and equity, such that our position and the dire repercussions
of this controversy should be weighed on the scales of justice, rather than dismissed on account of mootness.
The "moot and academic" principle is not a magical formula that can automatically dissuade the courts from
resolving a case. Courts will decide cases, otherwise moot and academic, if: (1) there is a grave violation of
the Constitution; (2) there is an exceptional character of the situation and the paramount public interest is
involved; (3) the constitutional issue raised requires formation of controlling principles to guide the bench, the
bar, and the public; and (4) the case is capable of repetition yet evading review. 20 The second exception
attends this case.
This Court had taken a liberal attitude in the case of David v. Macapagal-Arroyo,21 where technicalities of
procedure on locus standi were brushed aside, because the constitutional issues raised were of paramount
public interest or of transcendental importance deserving the attention of the Court. Along parallel lines, the
motion for intervention should be given due course since movants-intervenors have shown their substantial
legal interest in the outcome of this case, even much more than petitioners themselves, and because of the
novelty, gravity, and weight of the issues involved.
Undeniably, the motion for intervention and the motion for reconsideration of the May 12, 2010 Resolution of
movants-intervenors is akin to the right to appeal the judgment of a case, which, though merely a statutory
right that must comply with the requirements of the rules, is an essential part of our judicial system, such that
courts should proceed with caution not to deprive a party of the right to question the judgment and its effects,
and ensure that every party-litigant, including those who would be directly affected, would have the amplest
opportunity for the proper and just disposition of their cause, freed from the constraints of technicalities.22
Verily, the Court had, on several occasions, sanctioned the recall entries of judgment in light of attendant
extraordinary circumstances.23 The power to suspend or even disregard rules of procedure can be so
pervasive and compelling as to alter even that which this Court itself had already declared final. 24 In this
case, the compelling concern is not only to afford the movants-intervenors the right to be heard since they
would be adversely affected by the judgment in this case despite not being original parties thereto, but also to
arrive at the correct interpretation of the provisions of the LGC with respect to the creation of local
government units. In this manner, the thrust of the Constitution with respect to local autonomy and of the LGC
with respect to decentralization and the attainment of national goals, as hereafter elucidated, will effectively be
realized.
On the merits of the motion for intervention, after taking a long and intent look, the Court finds that the first
and second arguments raised by movants-intervenors deserve affirmative consideration.
It must be borne in mind that the central policy considerations in the creation of local government units are
economic viability, efficient administration, and capability to deliver basic services to their constituents. The
criteria prescribed by the LGC, i.e., income, population and land area, are all designed to accomplish these
results. In this light, Congress, in its collective wisdom, has debated on the relative weight of each of these
three criteria, placing emphasis on which of them should enjoy preferential consideration.
Without doubt, the primordial criterion in the creation of local government units, particularly of a province, is
economic viability. This is the clear intent of the framers of the LGC. In this connection, the following excerpts
from congressional debates are quoted hereunder—
HON. ALFELOR. Income is mandatory. We can even have this doubled because we thought…
CHAIRMAN CUENCO. In other words, the primordial consideration here is the economic viability of the new
local government unit, the new province?
xxxx
HON. LAGUDA. The reason why we are willing to increase the income, double than the House version,
because we also believe that economic viability is really a minimum. Land area and population are functions
really of the viability of the area, because you have an income level which would be the trigger point for
economic development, population will naturally increase because there will be an immigration. However, if
you disallow the particular area from being converted into a province because of the population problems in
the beginning, it will never be able to reach the point where it could become a province simply because it will
never have the economic take off for it to trigger off that economic development.
Now, we’re saying that maybe Fourteen Million Pesos is a floor area where it could pay for overhead and
provide a minimum of basic services to the population. Over and above that, the provincial officials should be
able to trigger off economic development which will attract immigration, which will attract new investments
from the private sector. This is now the concern of the local officials. But if we are going to tie the hands of the
proponents, simply by telling them, "Sorry, you are now at 150 thousand or 200 thousand," you will never be
able to become a province because nobody wants to go to your place. Why? Because you never have any
reason for economic viability.
xxxx
CHAIRMAN PIMENTEL. Okay, what about land area?
HON. LUMAUIG. 1,500 square kilometers
HON. ANGARA. Walang problema ‘yon, in fact that’s not very critical, ‘yong land area because…
CHAIRMAN PIMENTEL. Okay, ya, our, the Senate version is 3.5, 3,500 square meters, ah, square
kilometers.
HON. LAGUDA. Ne, Ne. A province is constituted for the purpose of administrative efficiency and delivery of
basic services.
CHAIRMAN PIMENTEL. Right.
HON. LAGUDA. Actually, when you come down to it, when government was instituted, there is only one
central government and then everybody falls under that. But it was later on subdivided into provinces for
purposes of administrative efficiency.
CHAIRMAN PIMENTEL. Okay.
HON. LAGUDA. Now, what we’re seeing now is that the administrative efficiency is no longer there precisely
because the land areas that we are giving to our governors is so wide that no one man can possibly
administer all of the complex machineries that are needed.
Secondly, when you say "delivery of basic services," as pointed out by Cong. Alfelor, there are sections of the
province which have never been visited by public officials, precisely because they don’t have the time nor the
energy anymore to do that because it’s so wide. Now, by compressing the land area and by reducing the
population requirement, we are, in effect, trying to follow the basic policy of why we are creating provinces,
which is to deliver basic services and to make it more efficient in administration.
CHAIRMAN PIMENTEL. Yeah, that’s correct, but on the assumption that the province is able to do it without
being a burden to the national government. That’s the assumption.
HON. LAGUDA. That’s why we’re going into the minimum income level. As we said, if we go on a minimum
income level, then we say, "this is the trigger point at which this administration can take place."25
Also worthy of note are the requisites in the creation of a barangay, a municipality, a city, and a province as
provided both in the LGC and the LGC-IRR, viz.—
For a Barangay:
LGC: SEC. 386. Requisites for Creation. – (a) A barangay may be created out of a contiguous territory which
has a population of at least two thousand (2,000) inhabitants as certified by the National Statistics Office
except in cities and municipalities within Metro Manila and other metropolitan political subdivisions or in highly
urbanized cities where such territory shall have a certified population of at least five thousand (5,000)
inhabitants: Provided, That the creation thereof shall not reduce the population of the original barangay or
barangays to less than the minimum requirement prescribed herein.
To enhance the delivery of basic services in the indigenous cultural communities, barangays
may be created in such communities by an Act of Congress, notwithstanding the above
requirement.
(b) The territorial jurisdiction of the new barangay shall be properly identified by metes and
bounds or by more or less permanent natural boundaries. The territory need not be
contiguous if it comprises two (2) or more islands.
(c) The governor or city mayor may prepare a consolidation plan for barangays, based on
the criteria prescribed in this Section, within his territorial jurisdiction. The plan shall be
submitted to the sangguniang panlalawigan or sangguniang panlungsod concerned for
appropriate action. In the case of municipalities within the Metropolitan Manila area and
other metropolitan political subdivisions, the barangay consolidation plan can be prepared
and approved by the sangguniang bayan concerned.
LGC-IRR: ARTICLE 14. Barangays. – (a) Creation of barangays by the sangguniang panlalawigan
shall require prior recommendation of the sangguniang bayan.
(b) New barangays in the municipalities within MMA shall be created only by Act of
Congress, subject to the limitations and requirements prescribed in this Article.
(c) Notwithstanding the population requirement, a barangay may be created in the
indigenous cultural communities by Act of Congress upon recommendation of the LGU or
LGUs where the cultural community is located.
(d) A barangay shall not be created unless the following requisites are present:
(1) Population – which shall not be less than two thousand (2,000) inhabitants, except
in municipalities and cities within MMA and other metropolitan political subdivisions as
may be created by law, or in highly-urbanized cities where such territory shall have a
population of at least five thousand (5,000) inhabitants, as certified by the NSO. The
creation of a barangay shall not reduce the population of the original barangay or
barangays to less than the prescribed minimum/
(2) Land Area – which must be contiguous, unless comprised by two (2) or more
islands. The territorial jurisdiction of a barangay sought to be created shall be properly
identified by metes and bounds or by more or less permanent natural boundaries.
Municipality:
LGC: SEC. 442. Requisites for Creation. – (a) A municipality may be created if it has an average annual
income, as certified by the provincial treasurer, or at least Two million five hundred thousand pesos
(P2,500,000.00) for the last two (2) consecutive years based on the 1991 constant prices; a population of at
least twenty-five thousand (25,000) inhabitants as certified by the National Statistics Office; and a contiguous
territory of at least fifty (50) square kilometers as certified by the Lands
Management Bureau: Provided, That the creation thereof shall not reduce the land area,
population or income of the original municipality or municipalities at the time of said creation
to less than the minimum requirements prescribed herein.
(b) The territorial jurisdiction of a newly-created municipality shall be properly identified by
metes and bounds. The requirement on land area shall not apply where the municipality
proposed to be created is composed of one (1) or more islands. The territory need not be
contiguous if it comprises two (2) or more islands.
(c) The average annual income shall include the income accruing to the general fund of the
municipality concerned, exclusive of special funds, transfers and non-recurring income.
(d) Municipalities existing as of the date of effectivity of this Code shall continue to exist and
operate as such. Existing municipal districts organized pursuant to presidential issuances or
executive orders and which have their respective set of elective municipal officials holding
office at the time of the effectivity of this Code shall henceforth be considered regular
municipalities.
LGC-IRR: ARTICLE 13. Municipalities. – (a) Requisites for Creation – A municipality shall not be
created unless the following requisites are present:
(i) Income – An average annual income of not less than Two Million Five Hundred Thousand
Pesos (₱2,500,000.00), for the immediately preceding two (2) consecutive years based on
1991 constant prices, as certified by the provincial treasurer. The average annual income
shall include the income accruing to the general fund, exclusive of special funds, special
accounts, transfers, and nonrecurring income;
(ii) Population – which shall not be less than twenty five thousand (25,000) inhabitants, as
certified by NSO; and
(iii) Land area – which must be contiguous with an area of at least fifty (50) square
kilometers, as certified by LMB. The territory need not be contiguous if it comprises two (2)
or more islands. The requirement on land area shall not apply where the proposed
municipality is composed of one (1) or more islands. The territorial jurisdiction of a
municipality sought to be created shall be properly identified by metes and bounds.
The creation of a new municipality shall not reduce the land area, population, and income of
the original LGU or LGUs at the time of said creation to less than the prescribed minimum
requirements. All expenses incidental to the creation shall be borne by the petitioners.
City:
LGC: SEC. 450. Requisites for Creation. – (a) A municipality or a cluster of barangays may be converted into
a component city if it has an average annual income, as certified by the Department of Finance, of at least
Twenty million pesos (₱20,000,000.00) for the last two (2) consecutive years based on 1991 constant prices,
and if it has either of the following requisities:
(i) a contiguous territory of at least one hundred (100) square kilometers, as certified
by the Lands Management Bureau; or,
(ii) a population of not less than one hundred fifty thousand (150,000) inhabitants, as
certified by the National Statistics Office: Provided, That, the creation thereof shall not
reduce the land area, population, and income of the original unit or units at the time of
said creation to less than the minimum requirements prescribed herein.
(b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and
bounds. The requirement on land area shall not apply where the city proposed to be created
is composed of one (1) or more islands. The territory need not be contiguous if it comprises
two (2) or more islands.
(c) The average annual income shall include the income accruing to the general fund,
exclusive of special funds, transfers, and non-recurring income.
LGC-IRR: ARTICLE 11. Cities. – (a) Requisites for creation – A city shall not be created unless the
following requisites on income and either population or land area are present:
(1) Income – An average annual income of not less than Twenty Million Pesos
(₱20,000,000.00), for the immediately preceding two (2) consecutive years based on 1991
constant prices, as certified by DOF. The average annual income shall include the income
accruing to the general fund, exclusive of special funds, special accounts, transfers, and
nonrecurring income; and
(2) Population or land area – Population which shall not be less than one hundred fifty
thousand (150,000) inhabitants, as certified by the NSO; or land area which must be
contiguous with an area of at least one hundred (100) square kilometers, as certified by
LMB. The territory need not be contiguous if it comprises two (2) or more islands or is
separated by a chartered city or cities which do not contribute to the income of the province.
The land area requirement shall not apply where the proposed city is composed of one (1)
or more islands. The territorial jurisdiction of a city sought to be created shall be properly
identified by metes and bounds.
The creation of a new city shall not reduce the land area, population, and income of the original
LGU or LGUs at the time of said creation to less than the prescribed minimum requirements. All
expenses incidental to the creation shall be borne by the petitioners.
Provinces:
LGC: SEC. 461. Requisites for Creation. – (a) A province may be created if it has an average annual income,
as certified by the Department of Finance, of not less than Twenty million pesos (₱20,000,000.00) based on
1991 prices and either of the following requisites:
(i) a contiguous territory of at least two thousand (2,000) square kilometers, as
certified by the Lands Management Bureau; or,
(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as
certified by the National Statistics Office:
Provided, That the creation thereof shall not reduce the land area, population, and income of
the original unit or units at the time of said creation to less than the minimum requirements
prescribed herein.
(b) The territory need not be contiguous if it comprises two (2) or more islands or is
separated by a chartered city or cities which do not contribute to the income of the province.
(c) The average annual income shall include the income accruing to the general fund,
exclusive of special funds, trust funds, transfers, and non-recurring income.
LGC-IRR: ARTICLE 9. Provinces. – (a) Requisites for creation – A province shall not be created
unless the following requisites on income and either population or land area are present:
(1) Income – An average annual income of not less than Twenty Million pesos
(₱20,000,000.00) for the immediately preceding two (2) consecutive years based on 1991
constant prices, as certified by DOF. The average annual income shall include the income
accruing to the general fund, exclusive of special funds, special accounts, transfers, and
non-recurring income; and
(2) Population or land area – Population which shall not be less than two hundred fifty
thousand (250,000) inhabitants, as certified by NSO; or land area which must be contiguous
with an area of at least two thousand (2,000) square kilometers, as certified by LMB. The
territory need not be contiguous if it comprises two (2) or more islands or is separated by a
chartered city or cities which do not contribute to the income of the province. The land area
requirement shall not apply where the proposed province is composed of one (1) or more
islands. The territorial jurisdiction of a province sought to be created shall be properly
identified by metes and bounds.
The creation of a new province shall not reduce the land area, population, and income of the original LGU or
LGUs at the time of said creation to less than the prescribed minimum requirements. All expenses incidental
to the creation shall be borne by the petitioners. (Emphasis supplied.)
It bears scrupulous notice that from the above cited provisions, with respect to the creation of barangays, land
area is not a requisite indicator of viability. However, with respect to the creation of municipalities, component
cities, and provinces, the three (3) indicators of viability and projected capacity to provide services, i.e.,
income, population, and land area, are provided for.
But it must be pointed out that when the local government unit to be created consists of one (1) or more
islands, it is exempt from the land area requirement as expressly provided in Section 442 and Section 450 of
the LGC if the local government unit to be created is a municipality or a component city, respectively. This
exemption is absent in the enumeration of the requisites for the creation of a province under Section 461 of
the LGC, although it is expressly stated under Article 9(2) of the LGC-IRR.
There appears neither rhyme nor reason why this exemption should apply to cities and municipalities, but not
to provinces. In fact, considering the physical configuration of the Philippine archipelago, there is a greater
likelihood that islands or group of islands would form part of the land area of a newly-created province than in
most cities or municipalities. It is, therefore, logical to infer that the genuine legislative policy decision was
expressed in Section 442 (for municipalities) and Section 450 (for component cities) of the LGC, but was
inadvertently omitted in Section 461 (for provinces). Thus, when the exemption was expressly provided in
Article 9(2) of the LGC-IRR, the inclusion was intended to correct the congressional oversight in Section 461
of the LGC – and to reflect the true legislative intent. It would, then, be in order for the Court to uphold the
validity of Article 9(2) of the LGC-IRR.
This interpretation finds merit when we consider the basic policy considerations underpinning the principle of
local autonomy.
Section 2 of the LGC, of which paragraph (a) is pertinent to this case, provides—
Sec. 2. Declaration of Policy. – (a) It is hereby declared the policy of the State that the territorial and political
subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their
fullest development as self-reliant communities and make them more effective partners in the attainment of
national goals. Toward this end, the State shall provide for a more responsive and accountable local
government structure instituted through a system of decentralization whereby local government units shall be
given more powers, authority, responsibilities, and resources. The process of decentralization shall proceed
from the national government to the local government units.
This declaration of policy is echoed in Article 3(a) of the LGC-IRR26 and in the Whereas clauses of
Administrative Order No. 270,27 which read—
WHEREAS, Section 25, Article II of the Constitution mandates that the State shall ensure the autonomy of
local governments;
WHEREAS, pursuant to this declared policy, Republic Act No. 7160, otherwise known as the Local
Government Code of 1991, affirms, among others, that the territorial and political subdivisions of the State
shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as selfreliant communities and make them more effective partners in the attainment of national goals;
WHEREAS, Section 533 of the Local Government Code of 1991 requires the President to convene an
Oversight Committee for the purpose of formulating and issuing the appropriate rules and regulations
necessary for the efficient and effective implementation of all the provisions of the said Code; and
WHEREAS, the Oversight Committee, after due deliberations and consultations with all the concerned sectors
of society and consideration of the operative principles of local autonomy as provided in the Local
Government Code of 1991, has completed the formulation of the implementing rules and regulations; x x x
Consistent with the declared policy to provide local government units genuine and meaningful local autonomy,
contiguity and minimum land area requirements for prospective local government units should be liberally
construed in order to achieve the desired results. The strict interpretation adopted by the February 10, 2010
Decision could prove to be counter-productive, if not outright absurd, awkward, and impractical. Picture an
intended province that consists of several municipalities and component cities which, in themselves, also
consist of islands. The component cities and municipalities which consist of islands are exempt from the
minimum land area requirement, pursuant to Sections 450 and 442, respectively, of the LGC. Yet, the
province would be made to comply with the minimum land area criterion of 2,000 square kilometers, even if it
consists of several islands. This would mean that Congress has opted to assign a distinctive preference to
create a province with contiguous land area over one composed of islands — and negate the greater
imperative of development of self-reliant communities, rural progress, and the delivery of basic services to the
constituency. This preferential option would prove more difficult and burdensome if the 2,000-square-kilometer
territory of a province is scattered because the islands are separated by bodies of water, as compared to one
with a contiguous land mass.
Moreover, such a very restrictive construction could trench on the equal protection clause, as it actually
defeats the purpose of local autonomy and decentralization as enshrined in the Constitution. Hence, the land
area requirement should be read together with territorial contiguity.
Another look at the transcript of the deliberations of Congress should prove enlightening:
CHAIRMAN ALFELOR. Can we give time to Congressman Chiongbian,28 with respect to his…
CHAIRMAN LINA. Okay.
HON. CHIONGBIAN. At the outset, Chairman Lina, we would like to apprise the distinguished Senator about
the action taken by the House, on House Bill No. 7166. This was passed about two years ago and has been
pending in the Senate for consideration. This is a bill that I am not the only one involved, including our
distinguished Chairman here. But then we did want to sponsor the bill, being the Chairman then of the Local
Government.
So, I took the cudgels for the rest of the Congressmen, who were more or less interested in the creation of the
new provinces, because of the vastness of the areas that were involved.
At any rate, this bill was passed by the House unanimously without any objection. And as I have said a while
ago, that this has been pending in the Senate for the last two years. And Sen. Pimentel himself was just in
South Cotabato and he delivered a speech that he will support this bill, and he says, that he will incorporate
this in the Local Government Code, which I have in writing from him. I showed you the letter that he wrote,
and naturally, we in the House got hold of the Senate version. It becomes an impossibility for the whole
Philippines to create a new province, and that is quite the concern of the respective Congressmen.
Now, insofar as the constitutional provision is concerned, there is nothing to stop the mother province from
voting against the bill, if a province is going to be created.
So, we are talking about devolution of powers here. Why is the province not willing to create another province,
when it can be justified. Even Speaker Mitra says, what will happen to Palawan? We won’t have one million
people there, and if you look at Palawan, there will be about three or four provinces that will comprise that
island. So, the development will be hampered.
Now, I would like to read into the record the letter of Sen. Pimentel, dated November 2, 1989. This was
practically about a year after 7166 was approved by the House, House Bill 7166.
On November 2, 1989, the Senator wrote me:
"Dear Congressman Chiongbian:
We are in receipt of your letter of 17 October. Please be informed that your House No. 7166 was
incorporated in the proposed Local Government Code, Senate Bill No. 155, which is pending for
second reading.
Thank you and warm regards.
Very truly yours,"
That is the very context of the letter of the Senator, and we are quite surprised that the Senate has adopted
another position.
So, we would like – because this is a unanimously approved bill in the House, that’s the only bill that is
involving the present Local Government Code that we are practically considering; and this will be a slap on
the House, if we do not approve it, as approved by the lower House. This can be [an] irritant in the approval of
the Conference Committee Report. And I just want to manifest that insofar as the creation of the province, not
only in my province, but the other provinces. That the mother province will participate in the plebiscite, they
can defeat the province, let’s say, on the basis of the result, the province cannot be created if they lose in the
plebiscite, and I don’t see why, we should put this stringent conditions to the private people of the devolution
that they are seeking.
So, Mr. Senator, I think we should consider the situation seriously, because, this is an approved version of the
House, and I will not be the one to raise up and question the Conference Committee Report, but the rest of
the House that are interested in this bill. And they have been approaching the Speaker about this. So, the
Speaker reminded me to make sure that it takes the cudgel of the House approved version.
So, that’s all what I can say, Mr. Senator, and I don’t believe that it is not, because it’s the wish of the House,
but because the mother province will participate anyhow, you vote them down; and that is provided for in the
Constitution. As a matter of fact, I have seen the amendment with regards to the creation of the city to be
urbanized, subject to the plebiscite. And why should we not allow that to happen in the provinces! In other
words, we don’t want the people who wants to create a new province, as if they are left in the devolution of
powers, when they feel that they are far away from civilization.
Now, I am not talking about other provinces, because I am unaware, not aware of their situation. But the
province of South Cotabato has a very unique geographical territorial conglomerations. One side is in the
other side of the Bay, of Sarangani Bay. The capital town is in the North; while these other municipalities are
in the East and in the West. And if they have to travel from the last town in the eastern part of the province, it
is about one hundred forty kilometers to the capital town. And from the West side, it is the same distance. And
from the North side, it is about one hundred kilometers. So that is the problem there. And besides, they have
enough resources and I feel that, not because I am interested in the province, I am after their welfare in the
future. Who am I to dictate on those people? I have no interest but then I am looking at the future
development of these areas.
As a matter of fact, if I am in politics, it’s incidental; I do not need to be there, but I can foresee what the
creation of a new province will bring to these people. It will bring them prosperity; it will bring them more
income, and it will encourage even foreign investors. Like the PAP now, they are concentrating in South
Cotabato, especially in the City of
General Santos and the neighboring municipalities, and they are quite interested and even the AID people are
asking me, "What is holding the creation of a new province when practically you need it?" It’s not 20 or 30
kilometers from the capital town; it’s about 140 kilometers. And imagine those people have to travel that far
and our road is not like Metropolitan Manila. That is as far as from here to Tarlac. And there are municipalities
there that are just one municipality is bigger than the province of La Union. They have the income. Of course,
they don’t have the population because that’s a part of the land of promise and people from Luzon are
migrating everyday because they feel that there are more opportunities here.
So, by creating the new provinces, not only in my case, in the other cases, it will enhance the development of
the Philippines, not because I am interested in my province. Well, as far as I am concerned, you know, I am in
the twilight years of my life to serve and I would like to serve my people well. No personal or political interest
here. I hope the distinguished Chairman of the Committee will appreciate the House Bill 7166, which the
House has already approved because we don’t want them to throw the Conference Committee Report after
we have worked that the house Bill has been, you know, drawn over board and not even considered by the
Senate. And on top of that, we are considering a bill that has not yet been passed. So I hope the Senator will
take that into account.
Thank you for giving me this time to explain.
CHAIRMAN LINA. Thank you very much, Congressman James. We will look into the legislative history of the
Senate version on this matter of creation of provinces. I am sure there was an amendment. As I said, I’ll look
into it. Maybe the House version was incorporated in toto, but maybe during the discussion, their
amendments were introduced and, therefore, Senator Pimentel could not hold on to the original version and
as a result new criteria were introduced.
But because of the manifestation that you just made, we will definitely, when we reach a book, Title IV, on the
matter of provinces, we will look at it sympathetically from your end so that the objective that you want [to]
achieve can be realized. So we will look at it with sympathy. We will review our position on the matter, how we
arrived at the Senate version and we will adopt an open mind definitely when we come into it.
CHAIRMAN ALFELOR. Kanino ‘yan?
CHAIRMAN LINA. Book III.
CHAIRMAN ALFELOR. Title?
CHAIRMAN LINA. Title IV.
CHAIRMAN ALFELOR. I have been pondering on the case of James, especially on economic stimulation of a
certain area. Like our case, because I put myself on our province, our province is quite very big. It’s
composed of four (4) congressional districts and I feel it should be five now. But during the Batasan time, four
of us talked and conversed proposing to divide the province into two.
There are areas then, when since time immemorial, very few governors ever tread on those areas. That is,
maybe you’re acquainted with the Bondoc Peninsula of Quezon, fronting that is Ragay Gulf. From Ragay
there is a long stretch of coastal area. From Albay going to Ragay, very few governors ever tread [there]
before, even today. That area now is infested with NPA. That is the area of Congressman Andaya.
Now, we thought that in order to stimulate growth, maybe provincial aid can be extended to these areas. With
a big or a large area of a province, a certain administrator or provincial governor definitely will have no
sufficient time. For me, if we really would like to stimulate growth, I believe that an area where there is
physical or geographical impossibilities, where administrators can penetrate, I think we have to create certain
provisions in the law where maybe we can treat it with special considerations.
Now, we went over the graduate scale of the Philipppine Local Government Data as far as provinces are
concerned. It is very surprising that there are provinces here which only composed of six municipalities, eight
municipalities, seven municipalities. Like in Cagayan, Tuguegarao, there are six municipalities. Ah, excuse
me, Batanes.
CHAIRMAN LINA. Will you look at the case of --- how many municipalities are there in Batanes province?
CHAIRMAN ALFELOR. Batanes is only six.
CHAIRMAN LINA. Six town. Siquijor?
CHAIRMAN ALFELOR. Siquijor. It is region?
CHAIRMAN LINA. Seven.
CHAIRMAN ALFELOR.L Seven. Anim.
CHAIRMAN LINA. Six also.
CHAIRMAN ALFELOR. Six also.
CHAIRMAN LINA. It seems with a minimum number of towns?
CHAIRMAN ALFELOR. The population of Siquijor is only 70 thousand, not even one congressional district.
But tumaas in 1982. Camiguin, that is Region 9. Wala dito. Nagtataka nga ako ngayon.
CHAIRMAN LINA. Camiguin, Camiguin.
CHAIRMAN ALFELOR. That is region? Camiguin has five municipalities, with a population of 63 thousand.
But we do not hold it against the province because maybe that’s one stimulant where growth can grow, can
start. The land area for Camiguin is only 229 square kilometers. So if we hard fast on requirements of, we set
a minimum for every province, palagay ko we just leave it to legislation, eh. Anyway, the Constitution is very
clear that in case we would like to divide, we submit it to a plebiscite. Pabayaan natin ang tao. Kung
maglalagay tayo ng set ng minimum, tila yata mahihirapan tayo, eh. Because what is really the thrust of the
Local Government Code? Growth. To devolve powers in order for the community to have its own idea how
they will stimulate growth in their respective areas.
So, in every geographical condition, mayroon sariling id[i]osyncracies eh, we cannot make a generalization.
CHAIRMAN LINA. Will the creation of a province, carved out of the existing province because of some
geographical id[i]osyncracies, as you called it, stimulate the economic growth in the area or will substantial aid
coming from the national government to a particular area, say, to a municipality, achieve the same purpose?
CHAIRMAN ALFELOR. Ano tayo dito sa budget. All right, here is a province. Usually, tinitingnan lang yun,
provision eh, hindi na yung composition eh. You are entitled to, say, 20% of the area.
There’s a province of Camarines Sur which have the same share with that of Camiguin and Siquijor, but
Camiguin is composed only of five municipalities; in Siquijor, it’s composed of six, but the share of Siquijor is
the same share with that of the province of Camarines Sur, having a bigger area, very much bigger.
That is the budget in process.
CHAIRMAN LINA. Well, as I said, we are going to consider this very seriously and even with sympathy
because of the explanation given and we will study this very carefully.29
The matters raised during the said Bicameral Conference Committee meeting clearly show the manifest
intention of Congress to promote development in the previously underdeveloped and uninhabited land areas
by allowing them to directly share in the allocation of funds under the national budget. It should be
remembered that, under Sections 284 and 285
of the LGC, the IRA is given back to local governments, and the sharing is based on land area, population,
and local revenue.30
Elementary is the principle that, if the literal application of the law results in absurdity, impossibility, or
injustice, then courts may resort to extrinsic aids of statutory construction, such as the legislative history of the
law,31 or may consider the implementing rules and regulations and pertinent executive issuances in the
nature of executive and/or legislative construction. Pursuant to this principle, Article 9(2) of the LGC-IRR
should be deemed incorporated in the basic law, the LGC.
It is well to remember that the LGC-IRR was formulated by the Oversight Committee consisting of members of
both the Executive and Legislative departments, pursuant to Section 53332 of the LGC. As Section 533
provides, the Oversight Committee shall formulate and issue the appropriate rules and regulations necessary
for the efficient and effective implementation of any and all provisions of this Code, thereby ensuring
compliance with the principles of local autonomy as defined under the Constitution. It was also mandated by
the Constitution that a local government code shall be enacted by Congress, to wit—
Section 3. The Congress shall enact a local government code which shall provide for a more responsive and
accountable local government structure instituted through a system of decentralization with effective
mechanisms of recall, initiative, and referendum, allocate among the different local government units their
powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal,
term, salaries, powers and functions and duties of local officials, and all other matters relating to the
organization and operation of the local units. (Emphasis supplied.)
These State policies are the very reason for the enactment of the LGC, with the view to attain decentralization
and countryside development. Congress saw that the old LGC, Batas Pambansa Bilang 337, had to be
replaced with a new law, now the LGC of 1991, which is more dynamic and cognizant of the needs of the
Philippines as an archipelagic country. This accounts for the exemption from the land area requirement of
local government units composed of one or more islands, as expressly stated under Sections 442 and 450 of
the LGC, with respect to the creation of municipalities and cities, but inadvertently omitted from Section 461
with respect to the creation of provinces. Hence, the void or missing detail was filled in by the Oversight
Committee in the LGC-IRR.
With three (3) members each from both the Senate and the House of Representatives, particularly the
chairpersons of their respective Committees on Local Government, it cannot be gainsaid that the inclusion by
the Oversight Committee of the exemption from the land area requirement with respect to the creation of
provinces consisting of one (1) or more islands was intended by Congress, but unfortunately not expressly
stated in Section 461 of the LGC, and this intent was echoed through an express provision in the LGC-IRR.
To be sure, the Oversight Committee did not just arbitrarily and whimsically insert such an exemption in Article
9(2) of the LGC-IRR. The Oversight Committee evidently conducted due deliberation and consultations with
all the concerned sectors of society and considered the operative principles of local autonomy as provided in
the LGC when the IRR was formulated.33 Undoubtedly, this amounts not only to an executive construction,
entitled to great weight and respect from this Court,34 but to legislative construction as well, especially with
the inclusion of representatives from the four leagues of local government units as members of the Oversight
Committee.
With the formulation of the LGC-IRR, which amounted to both executive and legislative construction of the
LGC, the many details to implement the LGC had already been put in place, which Congress understood to
be impractical and not too urgent to immediately translate into direct amendments to the LGC. But Congress,
recognizing the capacity and viability of Dinagat to become a full-fledged province, enacted R.A. No. 9355,
following the exemption from the land area requirement, which, with respect to the creation of provinces, can
only be found as an express provision in the LGC-IRR. In effect, pursuant to its plenary legislative powers,
Congress breathed flesh and blood into that exemption in Article 9(2) of the LGC-IRR and transformed it into
law when it enacted R.A. No. 9355 creating the Island Province of Dinagat.
Further, the bill that eventually became R.A. No. 9355 was filed and favorably voted upon in both Chambers
of Congress. Such acts of both Chambers of Congress definitively show the clear legislative intent to
incorporate into the LGC that exemption from the land area requirement, with respect to the creation of a
province when it consists of one or more islands, as expressly provided only in the LGC-IRR. Thereby, and by
necessity, the LGC was amended by way of the enactment of R.A. No. 9355.
What is more, the land area, while considered as an indicator of viability of a local government unit, is not
conclusive in showing that Dinagat cannot become a province, taking into account its average annual income
of ₱82,696,433.23 at the time of its creation, as certified by the Bureau of Local Government Finance, which
is four times more than the minimum requirement of ₱20,000,000.00 for the creation of a province. The
delivery of basic services to its constituents has been proven possible and sustainable. Rather than looking at
the results of the plebiscite and the May 10, 2010 elections as mere fait accompli circumstances which cannot
operate in favor of Dinagat’s existence as a province, they must be seen from the perspective that Dinagat is
ready and capable of becoming a province. This Court should not be instrumental in stunting such capacity.
As we have held in League of Cities of the Philippines v. Commission on Elections35 —
Ratio legis est anima. The spirit rather than the letter of the law. A statute must be read according to its spirit
or intent, for what is within the spirit is within the statute although it is not within its letter, and that which is
within the letter but not within the spirit is not within the statute. Put a bit differently, that which is within the
intent of the lawmaker is as much within the statute as if within the letter, and that which is within the letter of
the statute is not within the statute unless within the intent of the lawmakers. Withal, courts ought not to
interpret and should not accept an interpretation that would defeat the intent of the law and its legislators.
So as it is exhorted to pass on a challenge against the validity of an act of Congress, a co-equal branch of
government, it behooves the Court to have at once one principle in mind: the presumption of constitutionality
of statutes. This presumption finds its roots in the tri-partite system of government and the corollary
separation of powers, which enjoins the three great departments of the government to accord a becoming
courtesy for each other’s acts, and not to interfere inordinately with the exercise by one of its official functions.
Towards this end, courts ought to reject assaults against the validity of statutes, barring of course their clear
unconstitutionality. To doubt is to sustain, the theory in context being that the law is the product of earnest
studies by Congress to ensure that no constitutional prescription or concept is infringed. Consequently, before
a law duly challenged is nullified, an unequivocal breach of, or a clear conflict with, the Constitution, not
merely a doubtful or argumentative one, must be demonstrated in such a manner as to leave no doubt in the
mind of the Court.
WHEREFORE, the Court resolved to:
1. GRANT the Urgent Motion to Recall Entry of Judgment by movants-intervenors, dated and filed on
October 29, 2010;
2. RECONSIDER and SET ASIDE the July 20, 2010 Resolution, and GRANT the Motion for Leave to
Intervene and to File and to Admit Intervenors’ Motion for Reconsideration of the Resolution dated July
20, 2010;
3. GRANT the Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010. The May
12, 2010 Resolution is RECONSIDERED and SET ASIDE. The provision in Article 9(2) of the Rules
and Regulations Implementing the Local Government Code of 1991 stating, "The land area
requirement shall not apply where the proposed province is composed of one (1) or more islands," is
declared VALID. Accordingly, Republic Act No. 9355 (An Act Creating the Province of Dinagat Islands)
is declared as VALID and CONSTITUTIONAL, and the proclamation of the Province of Dinagat Islands
and the election of the officials thereof are declared VALID; and
4. The petition is DISMISSED.
No pronouncement as to costs.
SO ORDERED.
EN BANC
G.R. No. 203766
April 2, 2013
ATONG PAGLAUM, INC., represented by its President, Mr. Alan Igot, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
DECISION
CARPIO, J.:
The Cases
These cases constitute 54 Petitions for Certiorari and Petitions for Certiorari and Prohibition1 filed by 52
party-list groups and organizations assailing the Resolutions issued by the Commission on Elections
(COMELEC) disqualifying them from participating in the 13 May 2013 party-list elections, either by denial of
their petitions for registration under the party-list system, or cancellation of their registration and accreditation
as party-list organizations.
This Court resolved to consolidate the 54 petitions in the Resolutions dated 13 November 2012,2 20
November 2012,3 27 November 2012,4 4 December 2012,5 11 December 2012,6 and 19 February 2013.7
The Facts Pursuant to the provisions of Republic Act No. 7941 (R.A. No. 7941) and COMELEC Resolution
Nos. 9366 and 9531, approximately 280 groups and organizations registered and manifested their desire to
participate in the 13 May 2013 party-list elections.
In a Resolution dated 5 December 2012,19 the COMELEC En Banc affirmed the COMELEC Second
Division’s resolution to grant Partido ng Bayan ng Bida’s (PBB) registration and accreditation as a political
party in the National Capital Region. However, PBB was denied participation in the 13 May 2013 party-list
elections because PBB does not represent any "marginalized and underrepresented" sector; PBB failed to
apply for registration as a party-list group; and PBB failed to establish its track record as an organization that
seeks
to
uplift
the
lives
of
the
"marginalized
and
underrepresented."20
These 13 petitioners (ASIN, Manila Teachers, ALA-EH, 1AAAP, AKIN, AAB, AI, ALONA, ALAM, KALIKASAN,
GUARDJAN, PPP, and PBB) were not able to secure a mandatory injunction from this Court. The COMELEC,
on 7 January 2013 issued Resolution No. 9604,21 and excluded the names of these 13 petitioners in the
printing
of
the
official
ballot
for
the
13
May
2013
party-list
elections.
Pursuant to paragraph 222 of Resolution No. 9513, the COMELEC En Banc scheduled summary evidentiary
hearings to determine whether the groups and organizations that filed manifestations of intent to participate in
the 13 May 2013 party-list elections have continually complied with the requirements of R.A. No. 7941 and
Ang Bagong Bayani-OFW Labor Party v. COMELEC23 (Ang Bagong Bayani). The COMELEC disqualified the
followiThese 39 petitioners (AKB, Atong Paglaum, ARAL, ARC, UNIMAD, 1BRO-PGBI,
1GANAP/GUARDIANS, A BLESSED Party-List, 1-CARE, APEC, AT, ARARO, AGRI, AKMA-PTM, KAP, AKOBAHAY, BANTAY, PACYAW, PASANG MASDA, KAKUSA, AG, ANAD, GREENFORCE, FIRM 24-K, ALIM,
AAMA, SMART, ABP, BAYANI, AANI, A-IPRA, COCOFED, ABANG LINGKOD, ABROAD, BINHI, BUTIL, 1st
KABAGIS, 1-UTAK, SENIOR CITIZENS) were able to secure a mandatory injunction from this Court, directing
the COMELEC to include the names of these 39 petitioners in the printing of the official ballot for the 13 May
2013
party-list
elections.
Petitioners prayed for the issuance of a temporary restraining order and/or writ of preliminary injunction. This
Court issued Status Quo Ante Orders in all petitions. This Decision governs only the 54 consolidated petitions
that were granted Status Quo Ante Orders, namely:
The Issues
We rule upon two issues: first, whether the COMELEC committed grave abuse of discretion amounting to lack
or excess of jurisdiction in disqualifying petitioners from participating in the 13 May 2013 party-list elections,
either by denial of their new petitions for registration under the party-list system, or by cancellation of their
existing registration and accreditation as party-list organizations; and second, whether the criteria for
participating in the party-list system laid down in Ang Bagong Bayani and Barangay Association for National
Advancement and Transparency v. Commission on Elections49 (BANAT) should be applied by the COMELEC
in the coming 13 May 2013 party-list elections.
The Court’s Ruling
We hold that the COMELEC did not commit grave abuse of discretion in following prevailing decisions of this
Court in disqualifying petitioners from participating in the coming 13 May 2013 party-list elections. However,
since the Court adopts in this Decision new parameters in the qualification of national, regional, and sectoral
parties under the party-list system, thereby abandoning the rulings in the decisions applied by the COMELEC
in disqualifying petitioners, we remand to the COMELEC all the present petitions for the COMELEC to
determine who are qualified to register under the party-list system, and to participate in the coming 13 May
2013 party-list elections, under the new parameters prescribed in this Decision.
The Party-List System
The 1987 Constitution provides the basis for the party-list system of representation. Simply put, the party-list
system is intended to democratize political power by giving political parties that cannot win in legislative
district elections a chance to win seats in the House of Representatives.50 The voter elects two
representatives in the House of Representatives: one for his or her legislative district, and another for his or
her party-list group or organization of choice. The 1987 Constitution provides:
Section 5, Article VI
(1) The House of Representatives shall be composed of not more than two hundred and fifty members,
unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the
provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective
inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law,
shall be elected through a party-list system of registered national, regional, and sectoral parties or
organizations.
(2) The party-list representatives shall constitute twenty per centum of the total number of
representatives including those under the party list. For three consecutive terms after the ratification of
this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided
by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities,
women, youth, and such other sectors as may be provided by law, except the religious sector.
Sections 7 and 8, Article IX-C
Sec. 7. No votes cast in favor of a political party, organization, or coalition shall be valid, except for those
registered under the party-list system as provided in this Constitution.
Sec. 8. Political parties, or organizations or coalitions registered under the party-list system, shall not be
represented in the voters’ registration boards, boards of election inspectors, boards of canvassers, or other
similar bodies. However, they shall be entitled to appoint poll watchers in accordance with law.
Commissioner Christian S. Monsod, the main sponsor of the party-list system, stressed that "the party-list
system is not synonymous with that of the sectoral representation."51 The constitutional provisions on
the party-list system should be read in light of the following discussion among its framers:
MR. MONSOD: x x x.
I would like to make a distinction from the beginning that the proposal for the party list system is not
synonymous with that of the sectoral representation. Precisely, the party list system seeks to avoid the
dilemma of choice of sectors and who constitute the members of the sectors. In making the proposal on the
party list system, we were made aware of the problems precisely cited by Commissioner Bacani of which
sectors will have reserved seats. In effect, a sectoral representation in the Assembly would mean that certain
sectors would have reserved seats; that they will choose among themselves who would sit in those reserved
seats. And then, we have the problem of which sector because as we will notice in Proclamation No. 9, the
sectors cited were the farmers, fishermen, workers, students, professionals, business, military, academic,
ethnic and other similar groups. So these are the nine sectors that were identified here as "sectoral
representatives" to be represented in this Commission. The problem we had in trying to approach sectoral
representation in the Assembly was whether to stop at these nine sectors or include other sectors. And we
went through the exercise in a caucus of which sector should be included which went up to 14 sectors. And as
we all know, the longer we make our enumeration, the more limiting the law become because when we make
an enumeration we exclude those who are not in the enumeration. Second, we had the problem of who
comprise the farmers. Let us just say the farmers and the laborers. These days, there are many citizens who
are called "hyphenated citizens." A doctor may be a farmer; a lawyer may also be a farmer. And so, it is up to
the discretion of the person to say "I am a farmer" so he would be included in that sector.
The third problem is that when we go into a reserved seat system of sectoral representation in the Assembly,
we are, in effect, giving some people two votes and other people one vote. We sought to avoid these
problems by presenting a party list system. Under the party list system, there are no reserved seats for
sectors. Let us say, laborers and farmers can form a sectoral party or a sectoral organization that will then
register and present candidates of their party. How do the mechanics go? Essentially, under the party list
system, every voter has two votes, so there is no discrimination. First, he will vote for the representative of his
legislative district. That is one vote. In that same ballot, he will be asked: What party or organization or
coalition do you wish to be represented in the Assembly? And here will be attached a list of the parties,
organizations or coalitions that have been registered with the COMELEC and are entitled to be put in that list.
This can be a regional party, a sectoral party, a national party, UNIDO, Magsasaka or a regional party in
Mindanao. One need not be a farmer to say that he wants the farmers' party to be represented in the
Assembly. Any citizen can vote for any party. At the end of the day, the COMELEC will then tabulate the votes
that had been garnered by each party or each organization — one does not have to be a political party and
register in order to participate as a party — and count the votes and from there derive the percentage of the
votes that had been cast in favor of a party, organization or coalition.
When such parties register with the COMELEC, we are assuming that 50 of the 250 seats will be for the party
list system. So, we have a limit of 30 percent of 50. That means that the maximum that any party can get out
of these 50 seats is 15. When the parties register they then submit a list of 15 names. They have to submit
these names because these nominees have to meet the minimum qualifications of a Member of the National
Assembly. At the end of the day, when the votes are tabulated, one gets the percentages. Let us say, UNIDO
gets 10 percent or 15 percent of the votes; KMU gets 5 percent; a women’s party gets 2 1/2 percent and
anybody who has at least 2 1/2 percent of the vote qualifies and the 50 seats are apportioned among all of
these parties who get at least 2 1/2 percent of the vote.
What does that mean? It means that any group or party who has a constituency of, say, 500,000 nationwide
gets a seat in the National Assembly. What is the justification for that? When we allocate legislative districts,
we are saying that any district that has 200,000 votes gets a seat. There is no reason why a group that has a
national constituency, even if it is a sectoral or special interest group, should not have a voice in the National
Assembly. It also means that, let us say, there are three or four labor groups, they all register as a party or as
a group. If each of them gets only one percent or five of them get one percent, they are not entitled to any
representative. So, they will begin to think that if they really have a common interest, they should band
together, form a coalition and get five percent of the vote and, therefore, have two seats in the Assembly.
Those are the dynamics of a party list system.
We feel that this approach gets around the mechanics of sectoral representation while at the same time
making sure that those who really have a national constituency or sectoral constituency will get a chance to
have a seat in the National Assembly. These sectors or these groups may not have the constituency to win a
seat on a legislative district basis. They may not be able to win a seat on a district basis but surely, they will
have votes on a nationwide basis.
The purpose of this is to open the system. In the past elections, we found out that there were certain groups
or parties that, if we count their votes nationwide; have about 1,000,000 or 1,500,000 votes. But they were
always third place or fourth place in each of the districts. So, they have no voice in the Assembly. But this way,
they would have five or six representatives in the Assembly even if they would not win individually in
legislative districts. So, that is essentially the mechanics, the purpose and objectives of the party list system.
BISHOP BACANI: Madam President, am I right in interpreting that when we speak now of party list system
though we refer to sectors, we would be referring to sectoral party list rather than sectors and party list?
MR. MONSOD: As a matter of fact, if this body accepts the party list system, we do not even have to mention
sectors because the sectors would be included in the party list system. They can be sectoral parties within
the party list system.
xxxx
MR. MONSOD. Madam President, I just want to say that we suggested or proposed the party list system
because we wanted to open up the political system to a pluralistic society through a multiparty system. x x
x We are for opening up the system, and we would like very much for the sectors to be there. That is
why one of the ways to do that is to put a ceiling on the number of representatives from any single
party that can sit within the 50 allocated under the party list system. x x x.
xxx
MR. MONSOD. Madam President, the candidacy for the 198 seats is not limited to political parties. My
question is this: Are we going to classify for example Christian Democrats and Social Democrats as
political parties? Can they run under the party list concept or must they be under the district
legislation side of it only?
MR. VILLACORTA. In reply to that query, I think these parties that the Commissioner mentioned can
field candidates for the Senate as well as for the House of Representatives. Likewise, they can also
field sectoral candidates for the 20 percent or 30 percent, whichever is adopted, of the seats that we
are allocating under the party list system.
MR. MONSOD. In other words, the Christian Democrats can field district candidates and can also
participate in the party list system?
MR. VILLACORTA. Why not? When they come to the party list system, they will be fielding only
sectoral candidates.
MR. MONSOD. May I be clarified on that? Can UNIDO participate in the party list system?
MR. VILLACORTA. Yes, why not? For as long as they field candidates who come from the different
marginalized sectors that we shall designate in this Constitution.
MR. MONSOD. Suppose Senator Tañada wants to run under BAYAN group and says that he represents the
farmers, would he qualify?
MR. VILLACORTA. No, Senator Tañada would not qualify.
MR. MONSOD. But UNIDO can field candidates under the party list system and say Juan dela Cruz is a
farmer. Who would pass on whether he is a farmer or not?
MR. TADEO. Kay Commissioner Monsod, gusto ko lamang linawin ito. Political parties, particularly
minority political parties, are not prohibited to participate in the party list election if they can prove
that they are also organized along sectoral lines.
MR. MONSOD. What the Commissioner is saying is that all political parties can participate because it is
precisely the contention of political parties that they represent the broad base of citizens and that all sectors
are represented in them. Would the Commissioner agree?
MR. TADEO. Ang punto lamang namin, pag pinayagan mo ang UNIDO na isang political party, it will dominate
the party list at mawawalang saysay din yung sector. Lalamunin mismo ng political parties ang party list
system. Gusto ko lamang bigyan ng diin ang "reserve." Hindi ito reserve seat sa marginalized sectors. Kung
titingnan natin itong 198 seats, reserved din ito sa political parties.
MR. MONSOD. Hindi po reserved iyon kasi anybody can run there. But my question to Commissioner
Villacorta and probably also to Commissioner Tadeo is that under this system, would UNIDO be banned from
running under the party list system?
MR. VILLACORTA. No, as I said, UNIDO may field sectoral candidates. On that condition alone, UNIDO
may be allowed to register for the party list system.
MR. MONSOD. May I inquire from Commissioner Tadeo if he shares that answer?
MR. TADEO. The same.
MR. VILLACORTA. Puwede po ang UNIDO, pero sa sectoral lines.
MR. MONSOD: Sino po ang magsasabi kung iyong kandidato ng UNIDO ay hindi talagang labor leader or
isang laborer? Halimbawa, abogado ito.
MR. TADEO: Iyong mechanics.
MR. MONSOD: Hindi po mechanics iyon because we are trying to solve an inherent problem of sectoral
representation. My question is: Suppose UNIDO fields a labor leader, would he qualify?
MR. TADEO: The COMELEC may look into the truth of whether or not a political party is really
organized along a specific sectoral line. If such is verified or confirmed, the political party may submit
a list of individuals who are actually members of such sectors. The lists are to be published to give
individuals or organizations belonging to such sector the chance to present evidence contradicting
claims of membership in the said sector or to question the claims of the existence of such sectoral
organizations or parties. This proceeding shall be conducted by the COMELEC and shall be summary
in character. In other words, COMELEC decisions on this matter are final and
unappealable.52 (Emphasis supplied)
Indisputably, the framers of the 1987 Constitution intended the party-list system to include not only sectoral
parties but also non-sectoral parties. The framers intended the sectoral parties to constitute a part, but not the
entirety, of the party-list system. As explained by Commissioner Wilfredo Villacorta, political parties can
participate in the party-list system "For as long as they field candidates who come from the different
marginalized sectors that we shall designate in this Constitution."53
In fact, the framers voted down, 19-22, a proposal to reserve permanent seats to sectoral parties in the House
of Representatives, or alternatively, to reserve the party-list system exclusively to sectoral parties. As clearly
explained by Justice Jose C. Vitug in his Dissenting Opinion in Ang Bagong Bayani:
The draft provisions on what was to become Article VI, Section 5, subsection (2), of the 1987 Constitution
took off from two staunch positions — the first headed by Commissioner Villacorta, advocating that of the 20
per centum of the total seats in Congress to be allocated to party-list representatives half were to be reserved
to appointees from the marginalized and underrepresented sectors. The proposal was opposed by some
Commissioners. Mr. Monsod expressed the difficulty in delimiting the sectors that needed representation. He
was of the view that reserving seats for the marginalized and underrepresented sectors would stunt their
development into full-pledged parties equipped with electoral machinery potent enough to further the sectoral
interests to be represented. The Villacorta group, on the other hand, was apprehensive that pitting the
unorganized and less-moneyed sectoral groups in an electoral contest would be like placing babes in the
lion's den, so to speak, with the bigger and more established political parties ultimately gobbling them up. R.A.
7941 recognized this concern when it banned the first five major political parties on the basis of party
representation in the House of Representatives from participating in the party-list system for the first party-list
elections held in 1998 (and to be automatically lifted starting with the 2001 elections). The advocates for
permanent seats for sectoral representatives made an effort towards a compromise — that the party-list
system be open only to underrepresented and marginalized sectors. This proposal was further whittled down
by allocating only half of the seats under the party-list system to candidates from the sectors which would
garner the required number of votes. The majority was unyielding. Voting 19-22, the proposal for permanent
seats, and in the alternative the reservation of the party-list system to the sectoral groups, was voted down.
The only concession the Villacorta group was able to muster was an assurance of reserved seats for selected
sectors for three consecutive terms after the enactment of the 1987 Constitution, by which time they would be
expected to gather and solidify their electoral base and brace themselves in the multi-party electoral contest
with the more veteran political groups.54 (Emphasis supplied)
Thus, in the end, the proposal to give permanent reserved seats to certain sectors was outvoted. Instead, the
reservation of seats to sectoral representatives was only allowed for the first three consecutive
terms.55 There can be no doubt whatsoever that the framers of the 1987 Constitution expressly rejected the
proposal to make the party-list system exclusively for sectoral parties only, and that they clearly intended the
party-list system to include both sectoral and non-sectoral parties.
The common denominator between sectoral and non-sectoral parties is that they cannot expect to win in
legislative district elections but they can garner, in nationwide elections, at least the same number of votes
that winning candidates can garner in legislative district elections. The party-list system will be the entry point
to membership in the House of Representatives for both these non-traditional parties that could not compete
in legislative district elections.
The indisputable intent of the framers of the 1987 Constitution to include in the party-list system both sectoral
and non-sectoral parties is clearly written in Section 5(1), Article VI of the Constitution, which states:
Section 5. (1) The House of Representative shall be composed of not more that two hundred and fifty
members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the
provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective
inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall
be elected through a party-list system of registered national, regional, and sectoral parties or
organizations. (Emphasis supplied)
Section 5(1), Article VI of the Constitution is crystal-clear that there shall be "a party-list system of
registered national, regional, and sectoral parties or organizations." The commas after the words
"national," and "regional," separate national and regional parties from sectoral parties. Had the framers of the
1987 Constitution intended national and regional parties to be at the same time sectoral, they would have
stated "national and regional sectoral parties." They did not, precisely because it was never their intention to
make the party-list system exclusively sectoral.
What the framers intended, and what they expressly wrote in Section 5(1), could not be any clearer: the partylist system is composed of three different groups, and the sectoral parties belong to only one of the three
groups. The text of Section 5(1) leaves no room for any doubt that national and regional parties are separate
from sectoral parties.
Thus, the party-list system is composed of three different groups: (1) national parties or organizations; (2)
regional parties or organizations; and (3) sectoral parties or organizations. National and regional parties or
organizations are different from sectoral parties or organizations. National and regional parties or
organizations need not be organized along sectoral lines and need not represent any particular sector.
Moreover, Section 5(2), Article VI of the 1987 Constitution mandates that, during the first three consecutive
terms of Congress after the ratification of the 1987 Constitution, "one-half of the seats allocated to party-list
representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor,
indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except
the religious sector." This provision clearly shows again that the party-list system is not exclusively for sectoral
parties for two obvious reasons.
First, the other one-half of the seats allocated to party-list representatives would naturally be open to nonsectoral party-list representatives, clearly negating the idea that the party-list system is exclusively for sectoral
parties representing the "marginalized and underrepresented." Second, the reservation of one-half of the
party-list seats to sectoral parties applies only for the first "three consecutive terms after the ratification of this
Constitution," clearly making the party-list system fully open after the end of the first three congressional
terms. This means that, after this period, there will be no seats reserved for any class or type of party that
qualifies under the three groups constituting the party-list system.
Hence, the clear intent, express wording, and party-list structure ordained in Section 5(1) and (2),
Article VI of the 1987 Constitution cannot be disputed: the party-list system is not for sectoral parties
only, but also for non-sectoral parties.
Republic Act No. 7941 or the Party-List System Act, which is the law that implements the party-list system
prescribed in the Constitution, provides:
Section 3. Definition of Terms. (a) The party-list system is a mechanism of proportional representation in the
election of representatives to the House of Representatives from national, regional and sectoral parties or
organizations or coalitions thereof registered with the Commission on Elections (COMELEC). Component
parties or organizations of a coalition may participate independently provided the coalition of which they form
part does not participate in the party-list system.
(b) A party means either a political party or a sectoral party or a coalition of parties.
(c) A political party refers to an organized group of citizens advocating an ideology or platform,
principles and policies for the general conduct of government and which, as the most
immediate means of securing their adoption, regularly nominates and supports certain of its
leaders and members as candidates for public office.
It is a national party when its constituency is spread over the geographical territory of at least a majority
of the regions. It is a regional party when its constituency is spread over the geographical territory of at
least a majority of the cities and provinces comprising the region.
(d) A sectoral party refers to an organized group of citizens belonging to any of the sectors
enumerated in Section 5 hereof whose principal advocacy pertains to the special interest and
concerns of their sector.
(e) A sectoral organization refers to a group of citizens or a coalition of groups of citizens who share
similar physical attributes or characteristics, employment, interests or concerns.
(f) A coalition refers to an aggrupation of duly registered national, regional, sectoral parties or
organizations for political and/or election purposes. (Emphasis supplied)
Section 3(a) of R.A. No. 7941 defines a "party" as "either a political party or a sectoral party or a coalition
of parties." Clearly, a political party is different from a sectoral party. Section 3(c) of R.A. No. 7941 further
provides that a "political party refers to an organized group of citizens advocating an ideology or
platform, principles and policies for the general conduct of government." On the other hand, Section
3(d) of R.A. No. 7941 provides that a "sectoral party refers to an organized group of citizens belonging to
any of the sectors enumerated in Section 5 hereof whose principal advocacy pertains to the special
interest and concerns of their sector." R.A. No. 7941 provides different definitions for a political and a
sectoral party. Obviously, they are separate and distinct from each other.
R.A. No. 7941 does not require national and regional parties or organizations to represent the
"marginalized and underrepresented" sectors. To require all national and regional parties under the partylist system to represent the "marginalized and underrepresented" is to deprive and exclude, by judicial fiat,
ideology-based and cause-oriented parties from the party-list system. How will these ideology-based and
cause-oriented parties, who cannot win in legislative district elections, participate in the electoral process if
they are excluded from the party-list system? To exclude them from the party-list system is to prevent them
from joining the parliamentary struggle, leaving as their only option the armed struggle. To exclude them from
the party-list system is, apart from being obviously senseless, patently contrary to the clear intent and express
wording of the 1987 Constitution and R.A. No. 7941.
Under the party-list system, an ideology-based or cause-oriented political party is clearly different from a
sectoral party. A political party need not be organized as a sectoral party and need not represent any
particular sector. There is no requirement in R.A. No. 7941 that a national or regional political party must
represent a "marginalized and underrepresented" sector. It is sufficient that the political party consists of
citizens who advocate the same ideology or platform, or the same governance principles and
policies, regardless of their economic status as citizens.
Section 5 of R.A. No. 7941 states that "the sectors shall include labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers,
and professionals."56 The sectors mentioned in Section 5 are not all necessarily "marginalized and
underrepresented." For sure, "professionals" are not by definition "marginalized and underrepresented," not
even the elderly, women, and the youth. However, professionals, the elderly, women, and the youth may "lack
well-defined political constituencies," and can thus organize themselves into sectoral parties in advocacy of
the special interests and concerns of their respective sectors.
Section 6 of R.A. No. 7941 provides another compelling reason for holding that the law does not require
national or regional parties, as well as certain sectoral parties in Section 5 of R.A. No. 7941, to represent the
"marginalized and underrepresented." Section 6 provides the grounds for the COMELEC to refuse or cancel
the registration of parties or organizations after due notice and hearing.
Section 6. Refusal and/or Cancellation of Registration. — The COMELEC may, motu proprio or upon verified
complaint of any interested party, refuse or cancel, after due notice and hearing, the registration of any
national, regional or sectoral party, organization or coalition on any of the following grounds:
(1) It is a religious sect or denomination, organization or association organized for religious purposes;
(2) It advocates violence or unlawful means to seek its goal;
(3) It is a foreign party or organization;
(4) It is receiving support from any foreign government, foreign political party, foundation, organization,
whether directly or through any of its officers or members or indirectly through third parties for partisan
election purposes;
(5) It violates or fails to comply with laws, rules or regulations relating to elections;
(6) It declares untruthful statements in its petition;
(7) It has ceased to exist for at least one (1) year; or
(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum
(2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency
in which it has registered.
None of the 8 grounds to refuse or cancel registration refers to non-representation of the "marginalized and
underrepresented."
The phrase "marginalized and underrepresented" appears only once in R.A. No. 7941, in Section 2 on
Declaration of Policy.57 Section 2 seeks "to promote proportional representation in the election of
representatives to the House of Representatives through the party-list system," which will enable Filipinos
belonging to the "marginalized and underrepresented sectors, organizations and parties, and who lack
well-defined political constituencies," to become members of the House of Representatives. While the
policy declaration in Section 2 of R.A. No. 7941 broadly refers to "marginalized and underrepresented sectors,
organizations and parties," the specific implementing provisions of R.A. No. 7941 do not define or require that
the sectors, organizations or parties must be "marginalized and underrepresented." On the contrary, to even
interpret that all the sectors mentioned in Section 5 are "marginalized and underrepresented" would lead to
absurdities.
How then should we harmonize the broad policy declaration in Section 2 of R.A. No. 7941 with its specific
implementing provisions, bearing in mind the applicable provisions of the 1987 Constitution on the matter?
The phrase "marginalized and underrepresented" should refer only to the sectors in Section 5 that
are, by their nature, economically "marginalized and underrepresented." These sectors are: labor,
peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans, overseas workers,
and other similar sectors. For these sectors, a majority of the members of the sectoral party must
belong to the "marginalized and underrepresented." The nominees of the sectoral party either must
belong to the sector, or must have a track record of advocacy for the sector represented. Belonging to
the "marginalized and underrepresented" sector does not mean one must "wallow in poverty, destitution or
infirmity." It is sufficient that one, or his or her sector, is below the middle class. More specifically, the
economically "marginalized and underrepresented" are those who fall in the low income group as classified by
the National Statistical Coordination Board.58
The recognition that national and regional parties, as well as sectoral parties of professionals, the elderly,
women and the youth, need not be "marginalized and underrepresented" will allow small ideology-based and
cause-oriented parties who lack "well-defined political constituencies" a chance to win seats in the House of
Representatives. On the other hand, limiting to the "marginalized and underrepresented" the sectoral parties
for labor, peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans, overseas
workers, and other sectors that by their nature are economically at the margins of society, will give the
"marginalized and underrepresented" an opportunity to likewise win seats in the House of Representatives.
This interpretation will harmonize the 1987 Constitution and R.A. No. 7941 and will give rise to a multi-party
system where those "marginalized and underrepresented," both in economic and ideological status, will
have the opportunity to send their own members to the House of Representatives. This interpretation will also
make the party-list system honest and transparent, eliminating the need for relatively well-off party-list
representatives to masquerade as "wallowing in poverty, destitution and infirmity," even as they attend
sessions in Congress riding in SUVs.
The major political parties are those that field candidates in the legislative district elections. Major political
parties cannot participate in the party-list elections since they neither lack "well-defined political
constituencies" nor represent "marginalized and underrepresented" sectors. Thus, the national or regional
parties under the party-list system are necessarily those that do not belong to major political
parties. This automatically reserves the national and regional parties under the party-list system to those who
"lack well-defined political constituencies," giving them the opportunity to have members in the House of
Representatives.
To recall, Ang Bagong Bayani expressly declared, in its second guideline for the accreditation of parties under
the party-list system, that "while even major political parties are expressly allowed by RA 7941 and the
Constitution to participate in the party-list system, they must comply with the declared statutory policy of
enabling ‘Filipino citizens belonging to marginalized and underrepresented sectors xxx to be elected to the
House of Representatives.’ "However, the requirement in Ang Bagong Bayani, in its second guideline, that
"the political party xxx must represent the marginalized and underrepresented," automatically disqualified
major political parties from participating in the party-list system. This inherent inconsistency in Ang Bagong
Bayani has been compounded by the COMELEC’s refusal to register sectoral wings officially organized by
major political parties. BANAT merely formalized the prevailing practice when it expressly prohibited major
political parties from participating in the party-list system, even through their sectoral wings.
Section 11 of R.A. No. 7941 expressly prohibited the "first five (5) major political parties on the basis of
party representation in the House of Representatives at the start of the Tenth Congress" from participating in
the May 1988 party-list elections.59 Thus, major political parties can participate in subsequent party-list
elections since the prohibition is expressly limited only to the 1988 party-list elections. However, major
political parties should participate in party-list elections only through their sectoral wings. The participation of
major political parties through their sectoral wings, a majority of whose members are "marginalized and
underrepresented" or lacking in "well-defined political constituencies," will facilitate the entry of the
"marginalized and underrepresented" and those who "lack well-defined political constituencies" as members
of the House of Representatives.
The 1987 Constitution and R.A. No. 7941 allow major political parties to participate in party-list elections so as
to encourage them to work assiduously in extending their constituencies to the "marginalized and
underrepresented" and to those who "lack well-defined political constituencies." The participation of major
political parties in party-list elections must be geared towards the entry, as members of the House of
Representatives, of the "marginalized and underrepresented" and those who "lack well-defined political
constituencies," giving them a voice in law-making. Thus,to participate in party-list elections, a major political
party that fields candidates in the legislative district elections must organize a sectoral wing, like a labor,
peasant, fisherfolk, urban poor, professional, women or youth wing, that can register under the party-list
system.
Such sectoral wing of a major political party must have its own constitution, by-laws, platform or program of
government, officers and members, a majority of whom must belong to the sector represented. The sectoral
wing is in itself an independent sectoral party, and is linked to a major political party through a coalition. This
linkage is allowed by Section 3 of R.A. No. 7941, which provides that "component parties or organizations of a
coalition may participate independently (in party-list elections) provided the coalition of which they form part
does not participate in the party-list system."
Section 9 of R.A. No. 7941 prescribes the qualifications of party-list nominees. This provision prescribes a
special qualification only for the nominee from the youth sector.
Section 9. Qualifications of Party-List Nominees. No person shall be nominated as party-list representative
unless he is a natural-born citizen of the Philippines, a registered voter, a resident of the Philippines for a
period of not less than one (1) year immediately preceding the day of the election, able to read and write, a
bona fide member of the party or organization which he seeks to represent for at least ninety (90) days
preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election.
In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty (30)
years of age on the day of the election.
Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to
continue in office until the expiration of his term.1âwphi1
A party-list nominee must be a bona fide member of the party or organization which he or she seeks to
represent. In the case of sectoral parties, to be a bona fide party-list nominee one must either belong
to the sector represented, or have a track record of advocacy for such sector.
In disqualifying petitioners, the COMELEC used the criteria prescribed in Ang Bagong Bayani and BANAT.
Ang Bagong Bayani laid down the guidelines for qualifying those who desire to participate in the party-list
system:
First, the political party, sector, organization or coalition must represent the marginalized and
underrepresented groups identified in Section 5 of RA 7941. x x x
Second, while even major political parties are expressly allowed by RA 7941 and the Constitution to
participate in the party-list system, they must comply with the declared statutory policy of enabling "Filipino
citizens belonging to marginalized and underrepresented sectors x x x to be elected to the House of
Representatives." x x x.
xxxx
Third, x x x the religious sector may not be represented in the party-list system. x x x.
xxxx
Fourth, a party or an organization must not be disqualified under Section 6 of RA 7941, which enumerates the
grounds for disqualification as follows:
"(1) It is a religious sect or denomination, organization or association, organized for religious purposes;
(2) It advocates violence or unlawful means to seek its goal;
(3) It is a foreign party or organization;
(4) It is receiving support from any foreign government, foreign political party, foundation, organization,
whether directly or through any of its officers or members or indirectly through third parties for partisan
election purposes;
(5) It violates or fails to comply with laws, rules or regulations relating to elections;
(6) It declares untruthful statements in its petition;
(7) It has ceased to exist for at least one (1) year; or
(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum
(2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency
in which it has registered."
Fifth, the party or organization must not be an adjunct of, or a project organized or an entity funded or
assisted by, the government. x x x.
xxxx
Sixth, the party must not only comply with the requirements of the law; its nominees must likewise do so.
Section 9 of RA 7941 reads as follows:
"SEC 9. Qualifications of Party-List Nominees. - No person shall be nominated as party-list representative
unless he is a natural-born citizen of the Philippines, a registered voter, a resident of the Philippines for a
period of not less than one (1)year immediately preceding the day of the election, able to read and write,
a bona fide member of the party or organization which he seeks to represent for at least ninety (90) days
preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election.
In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty (30)
years of age on the day of the election. Any youth sectoral representative who attains the age of thirty (30)
during his term shall be allowed to continue in office until the expiration of his term."
Seventh, not only the candidate party or organization
underrepresented sectors; so also must its nominees. x x x.
must
represent
marginalized
and
Eighth, x x x the nominee must likewise be able to contribute to the formulation and enactment of appropriate
legislation that will benefit the nation as a whole. (Emphasis supplied)
In 2009, by a vote of 8-7 in BANAT, this Court stretched the Ang Bagong Bayani ruling further. In BANAT, the
majority officially excluded major political parties from participating in party-list elections,60 abandoning even
the lip-service that Ang Bagong Bayani accorded to the 1987 Constitution and R.A.No. 7941 that major
political parties can participate in party-list elections.
The minority in BANAT, however, believed that major political parties can participate in the party-list system
through their sectoral wings. The minority expressed that "[e]xcluding the major political parties in party-list
elections is manifestly against the Constitution, the intent of the Constitutional Commission, and R.A. No.
7941. This Court cannot engage in socio-political engineering and judicially legislate the exclusion of major
political parties from the party-list elections in patent violation of the Constitution and the law." 61 The
experimentations in socio-political engineering have only resulted in confusion and absurdity in the party-list
system. Such experimentations, in clear contravention of the 1987 Constitution and R.A. No. 7941, must now
come to an end.
We cannot, however, fault the COMELEC for following prevailing jurisprudence in disqualifying petitioners. In
following prevailing jurisprudence, the COMELEC could not have committed grave abuse of discretion.
However, for the coming 13 May 2013 party-list elections, we must now impose and mandate the party-list
system actually envisioned and authorized under the 1987 Constitution and R.A. No. 7941. In BANAT, this
Court devised a new formula in the allocation of party-list seats, reversing the COMELEC's allocation which
followed the then prevailing formula in Ang Bagong Bayani. In BANAT, however, the Court did not declare that
the COMELEC committed grave abuse of discretion. Similarly, even as we acknowledge here that the
COMELEC did not commit grave abuse of discretion, we declare that it would not be in accord with the 1987
Constitution and R.A. No. 7941 to apply the criteria in Ang Bagong Bayani and BANAT in determining who are
qualified to participate in the coming 13 May 2013 party-list elections. For this purpose, we suspend our
rule62 that a party may appeal to this Court from decisions or orders of the COMELEC only if the COMELEC
committed grave abuse of discretion.
Thus, we remand all the present petitions to the COMELEC. In determining who may participate in the coming
13 May 2013 and subsequent party-list elections, the COMELEC shall adhere to the following parameters:
1. Three different groups may participate in the party-list system: (1) national parties or organizations,
(2) regional parties or organizations, and (3) sectoral parties or organizations.
2. National parties or organizations and regional parties or organizations do not need to organize along
sectoral lines and do not need to represent any "marginalized and underrepresented" sector.
3. Political parties can participate in party-list elections provided they register under the party-list
system and do not field candidates in legislative district elections. A political party, whether major or not,
that fields candidates in legislative district elections can participate in party-list elections only through its
sectoral wing that can separately register under the party-list system. The sectoral wing is by itself an
independent sectoral party, and is linked to a political party through a coalition.
4. Sectoral parties or organizations may either be "marginalized and underrepresented" or lacking in
"well-defined political constituencies." It is enough that their principal advocacy pertains to the special
interest and concerns of their sector. The sectors that are "marginalized and underrepresented" include
labor, peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans, and
overseas workers. The sectors that lack "well-defined political constituencies" include professionals,
the elderly, women, and the youth.
5. A majority of the members of sectoral parties or organizations that represent the "marginalized and
underrepresented" must belong to the "marginalized and underrepresented" sector they represent.
Similarly, a majority of the members of sectoral parties or organizations that lack "well-defined political
constituencies" must belong to the sector they represent. The nominees of sectoral parties or
organizations that represent the "marginalized and underrepresented," or that represent those who lack
"well-defined political constituencies," either must belong to their respective sectors, or must have a
track record of advocacy for their respective sectors. The nominees of national and regional parties or
organizations must be bona-fide members of such parties or organizations.
6. National, regional, and sectoral parties or organizations shall not be disqualified if some of their
nominees are disqualified, provided that they have at least one nominee who remains qualified.
The COMELEC excluded from participating in the 13 May 2013 party-list elections those that did not satisfy
these two criteria: (1) all national, regional, and sectoral groups or organizations must represent the
"marginalized and underrepresented" sectors, and (2) all nominees must belong to the "marginalized and
underrepresented" sector they represent. Petitioners may have been disqualified by the COMELEC because
as political or regional parties they are not organized along sectoral lines and do not represent the
"marginalized and underrepresented." Also, petitioners' nominees who do not belong to the sectors they
represent may have been disqualified, although they may have a track record of advocacy for their sectors.
Likewise, nominees of non-sectoral parties may have been disqualified because they do not belong to any
sector. Moreover, a party may have been disqualified because one or more of its nominees failed to qualify,
even if the party has at least one remaining qualified nominee. As discussed above, the disqualification of
petitioners, and their nominees, under such circumstances is contrary to the 1987 Constitution and R.A. No.
7941.
This Court is sworn to uphold the 1987 Constitution, apply its provisions faithfully, and desist from engaging in
socio-economic or political experimentations contrary to what the Constitution has ordained. Judicial power
does not include the power to re-write the Constitution. Thus, the present petitions should be remanded to the
COMELEC not because the COMELEC committed grave abuse of discretion in disqualifying petitioners, but
because petitioners may now possibly qualify to participate in the coming 13 May 2013 party-list elections
under the new parameters prescribed by this Court.
WHEREFORE, all the present 54 petitions are GRANTED. The 13 petitions, which have been granted Status
Quo Ante Orders but without mandatory injunction to include the names of petitioners in the printing of ballots,
are remanded to the Commission on Elections only for determination whether petitioners are qualified to
register under the party-list system under the parameters prescribed in this Decision but they shall not
participate in the 13 May 2013 part-list elections. The 41 petitions, which have been granted mandatory
injunctions to include the names of petitioners in the printing of ballots, are remanded to the Commission on
Elections for determination whether petitioners are qualified to register under the party-list system and to
participate in the 13 May 2013 party-list elections under the parameters prescribed in this Decision. The
Commission on Elections may conduct summary evidentiary hearings for this purpose. This Decision is
immediately executory.
SO ORDERED.
G.R. No. 190582
April 8, 2010
ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON REMOTO, Petitioner,
vs.
COMMISSION ON ELECTIONS Respondent.
DECISION
DEL CASTILLO, J.:
... [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of
freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.
Justice Robert A. Jackson
West Virginia State Board of Education v. Barnette1
One unavoidable consequence of everyone having the freedom to choose is that others may make different
choices – choices we would not make for ourselves, choices we may disapprove of, even choices that may
shock or offend or anger us. However, choices are not to be legally prohibited merely because they are
different, and the right to disagree and debate about important questions of public policy is a core value
protected by our Bill of Rights. Indeed, our democracy is built on genuine recognition of, and respect for,
diversity and difference in opinion.
Since ancient times, society has grappled with deep disagreements about the definitions and demands of
morality. In many cases, where moral convictions are concerned, harmony among those theoretically opposed
is an insurmountable goal. Yet herein lies the paradox – philosophical justifications about what is moral are
indispensable and yet at the same time powerless to create agreement. This Court recognizes, however, that
practical solutions are preferable to ideological stalemates; accommodation is better than intransigence;
reason more worthy than rhetoric. This will allow persons of diverse viewpoints to live together, if not
harmoniously, then, at least, civilly.
Factual Background
This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a writ of preliminary
mandatory injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad) against the Resolutions of the
Commission on Elections (COMELEC) dated November 11, 20092 (the First Assailed Resolution) and
December 16, 20093 (the Second Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed
Resolutions). The case has its roots in the COMELEC’s refusal to accredit Ang Ladlad as a party-list
organization under Republic Act (RA) No. 7941, otherwise known as the Party-List System Act.4
Ang Ladlad is an organization composed of men and women who identify themselves as lesbians, gays,
bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003, Ang Ladlad first applied for
registration with the COMELEC in 2006. The application for accreditation was denied on the ground that the
organization had no substantial membership base. On August 17, 2009, Ang Ladlad again filed a Petition5 for
registration with the COMELEC.
Before the COMELEC, petitioner argued that the LGBT community is a marginalized and under-represented
sector that is particularly disadvantaged because of their sexual orientation and gender identity; that LGBTs
are victims of exclusion, discrimination, and violence; that because of negative societal attitudes, LGBTs are
constrained to hide their sexual orientation; and that Ang Ladlad complied with the 8-point guidelines
enunciated by this Court in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections.6 Ang
Ladlad laid out its national membership base consisting of individual members and organizational supporters,
and outlined its platform of governance.7
On November 11, 2009, after admitting the petitioner’s evidence, the COMELEC (Second Division) dismissed
the Petition on moral grounds, stating that:
x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay, Bisexual and
Transgender (LGBT) Community, thus:
x x x a marginalized and under-represented sector that is particularly disadvantaged because of their sexual
orientation and gender identity.
and proceeded to define sexual orientation as that which:
x x x refers to a person’s capacity for profound emotional, affectional and sexual attraction to, and intimate
and sexual relations with, individuals of a different gender, of the same gender, or more than one gender."
This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which offends
religious beliefs. In Romans 1:26, 27, Paul wrote:
For this cause God gave them up into vile affections, for even their women did change the natural use into
that which is against nature: And likewise also the men, leaving the natural use of the woman, burned in their
lust one toward another; men with men working that which is unseemly, and receiving in themselves that
recompense of their error which was meet.
In the Koran, the hereunder verses are pertinent:
For ye practice your lusts on men in preference to women "ye are indeed a people transgressing beyond
bounds." (7.81) "And we rained down on them a shower (of brimstone): Then see what was the end of those
who indulged in sin and crime!" (7:84) "He said: "O my Lord! Help Thou me against people who do mischief"
(29:30).
As correctly pointed out by the Law Department in its Comment dated October 2, 2008:
The ANG LADLAD apparently advocates sexual immorality as indicated in the Petition’s par. 6F: ‘Consensual
partnerships or relationships by gays and lesbians who are already of age’. It is further indicated in par. 24 of
the Petition which waves for the record: ‘In 2007, Men Having Sex with Men or MSMs in the Philippines were
estimated as 670,000 (Genesis 19 is the history of Sodom and Gomorrah).
Laws are deemed incorporated in every contract, permit, license, relationship, or accreditation. Hence,
pertinent provisions of the Civil Code and the Revised Penal Code are deemed part of the requirement to be
complied with for accreditation.
ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as ‘Any act, omission,
establishment, business, condition of property, or anything else which x x x (3) shocks, defies; or
disregards decency or morality x x x
It also collides with Article 1306 of the Civil Code: ‘The contracting parties may establish such stipulations,
clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals,
good customs, public order or public policy. Art 1409 of the Civil Code provides that ‘Contracts whose cause,
object or purpose is contrary to law, morals, good customs, public order or public policy’ are inexistent and
void from the beginning.
Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as amended, penalizes
‘Immoral doctrines, obscene publications and exhibitions and indecent shows’ as follows:
Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. — The penalty of
prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment and
fine, shall be imposed upon:
1. Those who shall publicly expound or proclaim doctrines openly contrary to public morals;
2. (a) The authors of obscene literature, published with their knowledge in any form; the editors
publishing such literature; and the owners/operators of the establishment selling the same;
(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent or immoral
plays, scenes, acts or shows, it being understood that the obscene literature or indecent or
immoral plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue
hereof, shall include those which: (1) glorify criminals or condone crimes; (2) serve no other
purpose but to satisfy the market for violence, lust or pornography; (3) offend any race or
religion; (4) tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law, public
order, morals, good customs, established policies, lawful orders, decrees and edicts.
3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are
offensive to morals.
Petitioner should likewise be denied accreditation not only for advocating immoral doctrines but likewise for
not being truthful when it said that it "or any of its nominees/party-list representatives have not violated or
failed to comply with laws, rules, or regulations relating to the elections."
Furthermore, should this Commission grant the petition, we will be exposing our youth to an environment that
does not conform to the teachings of our faith. Lehman Strauss, a famous bible teacher and writer in the
U.S.A. said in one article that "older practicing homosexuals are a threat to the youth." As an agency of the
government, ours too is the State’s avowed duty under Section 13, Article II of the Constitution to protect our
youth from moral and spiritual degradation.8
When Ang Ladlad sought reconsideration,9 three commissioners voted to overturn the First Assailed
Resolution (Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando Velasco), while three
commissioners voted to deny Ang Ladlad’s Motion for Reconsideration (Commissioners Nicodemo T. Ferrer,
Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC Chairman, breaking the tie and speaking for the
majority in his Separate Opinion, upheld the First Assailed Resolution, stating that:
I. The Spirit of Republic Act No. 7941
Ladlad is applying for accreditation as a sectoral party in the party-list system. Even assuming that it has
properly proven its under-representation and marginalization, it cannot be said that Ladlad’s expressed sexual
orientations per se would benefit the nation as a whole.
Section 2 of the party-list law unequivocally states that the purpose of the party-list system of electing
congressional representatives is to enable Filipino citizens belonging to marginalized and under-represented
sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute
to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become
members of the House of Representatives.
If entry into the party-list system would depend only on the ability of an organization to represent its
constituencies, then all representative organizations would have found themselves into the party-list race. But
that is not the intention of the framers of the law. The party-list system is not a tool to advocate tolerance and
acceptance of misunderstood persons or groups of persons. Rather, the party-list system is a tool for the
realization of aspirations of marginalized individuals whose interests are also the nation’s – only that their
interests have not been brought to the attention of the nation because of their under representation. Until the
time comes when Ladlad is able to justify that having mixed sexual orientations and transgender identities is
beneficial to the nation, its application for accreditation under the party-list system will remain just that.
II. No substantial differentiation
In the United States, whose equal protection doctrine pervades Philippine jurisprudence, courts do not
recognize lesbians, gays, homosexuals, and bisexuals (LGBT) as a "special class" of individuals. x x x
Significantly, it has also been held that homosexuality is not a constitutionally protected fundamental right, and
that "nothing in the U.S. Constitution discloses a comparable intent to protect or promote the social or legal
equality of homosexual relations," as in the case of race or religion or belief.
xxxx
Thus, even if society’s understanding, tolerance, and acceptance of LGBT’s is elevated, there can be no
denying that Ladlad constituencies are still males and females, and they will remain either male or female
protected by the same Bill of Rights that applies to all citizens alike.
xxxx
IV. Public Morals
x x x There is no question about not imposing on Ladlad Christian or Muslim religious practices. Neither is
there any attempt to any particular religious group’s moral rules on Ladlad. Rather, what are being adopted as
moral parameters and precepts are generally accepted public morals. They are possibly religious-based,
but as a society, the Philippines cannot ignore its more than 500 years of Muslim and Christian upbringing,
such that some moral precepts espoused by said religions have sipped [sic] into society and these are not
publicly accepted moral norms.
V. Legal Provisions
But above morality and social norms, they have become part of the law of the land. Article 201 of the Revised
Penal Code imposes the penalty of prision mayor upon "Those who shall publicly expound or proclaim
doctrines openly contrary to public morals." It penalizes "immoral doctrines, obscene publications and
exhibition and indecent shows." "Ang Ladlad" apparently falls under these legal provisions. This is clear from
its Petition’s paragraph 6F: "Consensual partnerships or relationships by gays and lesbians who are already
of age’ It is further indicated in par. 24 of the Petition which waves for the record: ‘In 2007, Men Having Sex
with Men or MSMs in the Philippines were estimated as 670,000. Moreoever, Article 694 of the Civil Code
defines "nuisance" as any act, omission x x x or anything else x x x which shocks, defies or disregards
decency or morality x x x." These are all unlawful.10
On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed Resolutions and
direct the COMELEC to grant Ang Ladlad’s application for accreditation. Ang Ladlad also sought the issuance
ex parte of a preliminary mandatory injunction against the COMELEC, which had previously announced that it
would begin printing the final ballots for the May 2010 elections by January 25, 2010.
On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its Comment on behalf of
COMELEC not later than 12:00 noon of January 11, 2010.11 Instead of filing a Comment, however, the OSG
filed a Motion for Extension, requesting that it be given until January 16, 2010 to Comment.12 Somewhat
surprisingly, the OSG later filed a Comment in support of petitioner’s application.13 Thus, in order to give
COMELEC the opportunity to fully ventilate its position, we required it to file its own comment. 14 The
COMELEC, through its Law Department, filed its Comment on February 2, 2010.15
In the meantime, due to the urgency of the petition, we issued a temporary restraining order on January 12,
2010, effective immediately and continuing until further orders from this Court, directing the COMELEC to
cease and desist from implementing the Assailed Resolutions.16
Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to Intervene or to Appear
as Amicus Curiae, attaching thereto its Comment-in-Intervention.17 The CHR opined that the denial of Ang
Ladlad’s petition on moral grounds violated the standards and principles of the Constitution, the Universal
Declaration of Human Rights (UDHR), and the International Covenant on Civil and Political Rights (ICCPR).
On January 19, 2010, we granted the CHR’s motion to intervene.
On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene18 which motion was granted on
February 2, 2010.19
The Parties’ Arguments
Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using religious
dogma, violated the constitutional guarantees against the establishment of religion. Petitioner also claimed
that the Assailed Resolutions contravened its constitutional rights to privacy, freedom of speech and
assembly, and equal protection of laws, as well as constituted violations of the Philippines’ international
obligations against discrimination based on sexual orientation.
The OSG concurred with Ang Ladlad’s petition and argued that the COMELEC erred in denying petitioner’s
application for registration since there was no basis for COMELEC’s allegations of immorality. It also opined
that LGBTs have their own special interests and concerns which should have been recognized by the
COMELEC as a separate classification. However, insofar as the purported violations of petitioner’s freedom of
speech, expression, and assembly were concerned, the OSG maintained that there had been no restrictions
on these rights.
In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine national
political agenda to benefit the nation and that the petition was validly dismissed on moral grounds. It also
argued for the first time that the LGBT sector is not among the sectors enumerated by the Constitution and
RA 7941, and that petitioner made untruthful statements in its petition when it alleged its national existence
contrary to actual verification reports by COMELEC’s field personnel.
Our Ruling
We grant the petition.
Compliance with the Requirements of the Constitution and Republic Act No. 7941
The COMELEC denied Ang Ladlad’s application for registration on the ground that the LGBT sector is neither
enumerated in the Constitution and RA 7941, nor is it associated with or related to any of the sectors in the
enumeration.
Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that only those
sectors specifically enumerated in the law or related to said sectors (labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and
professionals) may be registered under the party-list system. As we explicitly ruled in Ang Bagong BayaniOFW Labor Party v. Commission on Elections,20 "the enumeration of marginalized and under-represented
sectors is not exclusive". The crucial element is not whether a sector is specifically enumerated, but whether a
particular organization complies with the requirements of the Constitution and RA 7941.
Respondent also argues that Ang Ladlad made untruthful statements in its petition when it alleged that it had
nationwide existence through its members and affiliate organizations. The COMELEC claims that upon
verification by its field personnel, it was shown that "save for a few isolated places in the country, petitioner
does not exist in almost all provinces in the country."21
This argument that "petitioner made untruthful statements in its petition when it alleged its national existence"
is a new one; previously, the COMELEC claimed that petitioner was "not being truthful when it said that it or
any of its nominees/party-list representatives have not violated or failed to comply with laws, rules, or
regulations relating to the elections." Nowhere was this ground for denial of petitioner’s accreditation
mentioned or even alluded to in the Assailed Resolutions. This, in itself, is quite curious, considering that the
reports of petitioner’s alleged non-existence were already available to the COMELEC prior to the issuance of
the First Assailed Resolution. At best, this is irregular procedure; at worst, a belated afterthought, a change in
respondent’s theory, and a serious violation of petitioner’s right to procedural due process.
Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang Ladlad’s initial
petition shows that it never claimed to exist in each province of the Philippines. Rather, petitioner alleged that
the LGBT community in the Philippines was estimated to constitute at least 670,000 persons; that it had
16,100 affiliates and members around the country, and 4,044 members in its electronic discussion
group.22 Ang Ladlad also represented itself to be "a national LGBT umbrella organization with affiliates
around the Philippines composed of the following LGBT networks:"
Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD LGBT, it is no surprise
that they found that petitioner had no presence in any of these regions. In fact, if COMELEC’s findings are to
be believed, petitioner does not even exist in Quezon City, which is registered as Ang Ladlad’s principal place
of business.
Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance with the legal
requirements for accreditation. Indeed, aside from COMELEC’s moral objection and the belated allegation of
non-existence, nowhere in the records has the respondent ever found/ruled that Ang Ladlad is not qualified to
register as a party-list organization under any of the requisites under RA 7941 or the guidelines in Ang
Bagong Bayani. The difference, COMELEC claims, lies in Ang Ladlad’s morality, or lack thereof.
Religion as the Basis for Refusal to Accept Ang Ladlad’s Petition for Registration
Our Constitution provides in Article III, Section 5 that "[n]o law shall be made respecting an establishment of
religion, or prohibiting the free exercise thereof." At bottom, what our non-establishment clause calls for is
"government neutrality in religious matters."24 Clearly, "governmental reliance on religious justification is
inconsistent with this policy of neutrality."25 We thus find that it was grave violation of the non-establishment
clause for the COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang Ladlad.
Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should depend, instead, on
whether the COMELEC is able to advance some justification for its rulings beyond mere conformity to
religious doctrine. Otherwise stated, government must act for secular purposes and in ways that have
primarily secular effects. As we held in Estrada v. Escritor:26
x x x The morality referred to in the law is public and necessarily secular, not religious as the dissent of Mr.
Justice Carpio holds. "Religious teachings as expressed in public debate may influence the civil public order
but public moral disputes may be resolved only on grounds articulable in secular terms." Otherwise, if
government relies upon religious beliefs in formulating public policies and morals, the resulting policies and
morals would require conformity to what some might regard as religious programs or agenda. The nonbelievers would therefore be compelled to conform to a standard of conduct buttressed by a religious belief,
i.e., to a "compelled religion," anathema to religious freedom. Likewise, if government based its actions upon
religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly disapprove contrary
religious or non-religious views that would not support the policy. As a result, government will not provide full
religious freedom for all its citizens, or even make it appear that those whose beliefs are disapproved are
second-class citizens.1avvphi1
In other words, government action, including its proscription of immorality as expressed in criminal law like
concubinage, must have a secular purpose. That is, the government proscribes this conduct because it is
"detrimental (or dangerous) to those conditions upon which depend the existence and progress of human
society" and not because the conduct is proscribed by the beliefs of one religion or the other. Although
admittedly, moral judgments based on religion might have a compelling influence on those engaged in public
deliberations over what actions would be considered a moral disapprobation punishable by law. After all, they
might also be adherents of a religion and thus have religious opinions and moral codes with a compelling
influence on them; the human mind endeavors to regulate the temporal and spiritual institutions of society in a
uniform manner, harmonizing earth with heaven. Succinctly put, a law could be religious or Kantian or
Aquinian or utilitarian in its deepest roots, but it must have an articulable and discernible secular purpose and
justification to pass scrutiny of the religion clauses. x x x Recognizing the religious nature of the Filipinos and
the elevating influence of religion in society, however, the Philippine constitution's religion clauses prescribe
not a strict but a benevolent neutrality. Benevolent neutrality recognizes that government must pursue its
secular goals and interests but at the same time strive to uphold religious liberty to the greatest extent
possible within flexible constitutional limits. Thus, although the morality contemplated by laws is secular,
benevolent neutrality could allow for accommodation of morality based on religion, provided it does not offend
compelling state interests.27
Public Morals as a Ground to Deny Ang Ladlad’s Petition for Registration
Respondent suggests that although the moral condemnation of homosexuality and homosexual conduct may
be religion-based, it has long been transplanted into generally accepted public morals. The COMELEC
argues:
Petitioner’s accreditation was denied not necessarily because their group consists of LGBTs but because of
the danger it poses to the people especially the youth. Once it is recognized by the government, a sector
which believes that there is nothing wrong in having sexual relations with individuals of the same gender is a
bad example. It will bring down the standard of morals we cherish in our civilized society. Any society without
a set of moral precepts is in danger of losing its own existence.28
We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals
themselves, have borne the brunt of societal disapproval. It is not difficult to imagine the reasons behind this
censure – religious beliefs, convictions about the preservation of marriage, family, and procreation, even
dislike or distrust of homosexuals themselves and their perceived lifestyle. Nonetheless, we recall that the
Philippines has not seen fit to criminalize homosexual conduct. Evidently, therefore, these "generally accepted
public morals" have not been convincingly transplanted into the realm of law.29
The Assailed Resolutions have not identified any specific overt immoral act performed by Ang Ladlad. Even
the OSG agrees that "there should have been a finding by the COMELEC that the group’s members have
committed or are committing immoral acts."30 The OSG argues:
x x x A person may be sexually attracted to a person of the same gender, of a different gender, or more than
one gender, but mere attraction does not translate to immoral acts. There is a great divide between thought
and action. Reduction ad absurdum. If immoral thoughts could be penalized, COMELEC would have its hands
full of disqualification cases against both the "straights" and the gays." Certainly this is not the intendment of
the law.31
Respondent has failed to explain what societal ills are sought to be prevented, or why special protection is
required for the youth. Neither has the COMELEC condescended to justify its position that petitioner’s
admission into the party-list system would be so harmful as to irreparably damage the moral fabric of society.
We, of course, do not suggest that the state is wholly without authority to regulate matters concerning
morality, sexuality, and sexual relations, and we recognize that the government will and should continue to
restrict behavior considered detrimental to society. Nonetheless, we cannot countenance advocates who,
undoubtedly with the loftiest of intentions, situate morality on one end of an argument or another, without
bothering to go through the rigors of legal reasoning and explanation. In this, the notion of morality is robbed
of all value. Clearly then, the bare invocation of morality will not remove an issue from our scrutiny.
We also find the COMELEC’s reference to purported violations of our penal and civil laws flimsy, at best;
disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as "any act, omission, establishment,
condition of property, or anything else which shocks, defies, or disregards decency or morality," the remedies
for which are a prosecution under the Revised Penal Code or any local ordinance, a civil action, or abatement
without judicial proceedings.32 A violation of Article 201 of the Revised Penal Code, on the other hand,
requires proof beyond reasonable doubt to support a criminal conviction. It hardly needs to be emphasized
that mere allegation of violation of laws is not proof, and a mere blanket invocation of public morals cannot
replace the institution of civil or criminal proceedings and a judicial determination of liability or culpability.
As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to justify
exclusion of homosexuals from participation in the party-list system. The denial of Ang Ladlad’s registration on
purely moral grounds amounts more to a statement of dislike and disapproval of homosexuals, rather than a
tool to further any substantial public interest. Respondent’s blanket justifications give rise to the inevitable
conclusion that the COMELEC targets homosexuals themselves as a class, not because of any particular
morally reprehensible act. It is this selective targeting that implicates our equal protection clause.
Equal Protection
Despite the absolutism of Article III, Section 1 of our Constitution, which provides "nor shall any person be
denied equal protection of the laws," courts have never interpreted the provision as an absolute prohibition on
classification. "Equality," said Aristotle, "consists in the same treatment of similar persons." 33 The equal
protection clause guarantees that no person or class of persons shall be deprived of the same protection of
laws which is enjoyed by other persons or other classes in the same place and in like circumstances.34
Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets a suspect
class, we will uphold the classification as long as it bears a rational relationship to some legitimate
government end.35 In Central Bank Employees Association, Inc. v. Banko Sentral ng Pilipinas,36 we declared
that "[i]n our jurisdiction, the standard of analysis of equal protection challenges x x x have followed the
‘rational basis’ test, coupled with a deferential attitude to legislative classifications and a reluctance to
invalidate a law unless there is a showing of a clear and unequivocal breach of the Constitution."37
The COMELEC posits that the majority of the Philippine population considers homosexual conduct as
immoral and unacceptable, and this constitutes sufficient reason to disqualify the petitioner. Unfortunately for
the respondent, the Philippine electorate has expressed no such belief. No law exists to criminalize
homosexual behavior or expressions or parties about homosexual behavior. Indeed, even if we were to
assume that public opinion is as the COMELEC describes it, the asserted state interest here – that is, moral
disapproval of an unpopular minority – is not a legitimate state interest that is sufficient to satisfy rational basis
review under the equal protection clause. The COMELEC’s differentiation, and its unsubstantiated claim
that Ang Ladlad cannot contribute to the formulation of legislation that would benefit the nation, furthers no
legitimate state interest other than disapproval of or dislike for a disfavored group.
From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the same
interest in participating in the party-list system on the same basis as other political parties similarly situated.
State intrusion in this case is equally burdensome. Hence, laws of general application should apply with equal
force to LGBTs, and they deserve to participate in the party-list system on the same basis as other
marginalized and under-represented sectors.
It bears stressing that our finding that COMELEC’s act of differentiating LGBTs from heterosexuals insofar as
the party-list system is concerned does not imply that any other law distinguishing between heterosexuals and
homosexuals under different circumstances would similarly fail. We disagree with the OSG’s position that
homosexuals are a class in themselves for the purposes of the equal protection clause.38 We are not
prepared to single out homosexuals as a separate class meriting special or differentiated treatment. We have
not received sufficient evidence to this effect, and it is simply unnecessary to make such a ruling today.
Petitioner itself has merely demanded that it be recognized under the same basis as all other groups similarly
situated, and that the COMELEC made "an unwarranted and impermissible classification not justified by the
circumstances of the case."
Freedom of Expression and Association
Under our system of laws, every group has the right to promote its agenda and attempt to persuade society of
the validity of its position through normal democratic means.39 It is in the public square that deeply held
convictions and differing opinions should be distilled and deliberated upon. As we held in Estrada v.
Escritor:40
In a democracy, this common agreement on political and moral ideas is distilled in the public square. Where
citizens are free, every opinion, every prejudice, every aspiration, and every moral discernment has access to
the public square where people deliberate the order of their life together. Citizens are the bearers of opinion,
including opinion shaped by, or espousing religious belief, and these citizens have equal access to the public
square. In this representative democracy, the state is prohibited from determining which convictions and moral
judgments may be proposed for public deliberation. Through a constitutionally designed process, the people
deliberate and decide. Majority rule is a necessary principle in this democratic governance. Thus, when public
deliberation on moral judgments is finally crystallized into law, the laws will largely reflect the beliefs and
preferences of the majority, i.e., the mainstream or median groups. Nevertheless, in the very act of adopting
and accepting a constitution and the limits it specifies – including protection of religious freedom "not only for
a minority, however small – not only for a majority, however large – but for each of us" – the majority imposes
upon itself a self-denying ordinance. It promises not to do what it otherwise could do: to ride roughshod over
the dissenting minorities.
Freedom of expression constitutes one of the essential foundations of a democratic society, and this freedom
applies not only to those that are favorably received but also to those that offend, shock, or disturb. Any
restriction imposed in this sphere must be proportionate to the legitimate aim pursued. Absent any compelling
state interest, it is not for the COMELEC or this Court to impose its views on the populace. Otherwise stated,
the COMELEC is certainly not free to interfere with speech for no better reason than promoting an approved
message or discouraging a disfavored one.
This position gains even more force if one considers that homosexual conduct is not illegal in this country. It
follows that both expressions concerning one’s homosexuality and the activity of forming a political
association that supports LGBT individuals are protected as well.
Other jurisdictions have gone so far as to categorically rule that even overwhelming public perception that
homosexual conduct violates public morality does not justify criminalizing same-sex conduct.41 European and
United Nations judicial decisions have ruled in favor of gay rights claimants on both privacy and equality
grounds, citing general privacy and equal protection provisions in foreign and international texts. 42 To the
extent that there is much to learn from other jurisdictions that have reflected on the issues we face here, such
jurisprudence is certainly illuminating. These foreign authorities, while not formally binding on Philippine
courts, may nevertheless have persuasive influence on the Court’s analysis.
In the area of freedom of expression, for instance, United States courts have ruled that existing free speech
doctrines protect gay and lesbian rights to expressive conduct. In order to justify the prohibition of a particular
expression of opinion, public institutions must show that their actions were caused by "something more than a
mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."43
With respect to freedom of association for the advancement of ideas and beliefs, in Europe, with its vibrant
human rights tradition, the European Court of Human Rights (ECHR) has repeatedly stated that a political
party may campaign for a change in the law or the constitutional structures of a state if it uses legal and
democratic means and the changes it proposes are consistent with democratic principles. The ECHR has
emphasized that political ideas that challenge the existing order and whose realization is advocated by
peaceful means must be afforded a proper opportunity of expression through the exercise of the right of
association, even if such ideas may seem shocking or unacceptable to the authorities or the majority of the
population.44 A political group should not be hindered solely because it seeks to publicly debate controversial
political issues in order to find solutions capable of satisfying everyone concerned.45 Only if a political party
incites violence or puts forward policies that are incompatible with democracy does it fall outside the
protection of the freedom of association guarantee.46
We do not doubt that a number of our citizens may believe that homosexual conduct is distasteful, offensive,
or even defiant. They are entitled to hold and express that view. On the other hand, LGBTs and their
supporters, in all likelihood, believe with equal fervor that relationships between individuals of the same sex
are morally equivalent to heterosexual relationships. They, too, are entitled to hold and express that view.
However, as far as this Court is concerned, our democracy precludes using the religious or moral views of
one part of the community to exclude from consideration the values of other members of the community.
Of course, none of this suggests the impending arrival of a golden age for gay rights litigants. It well may be
that this Decision will only serve to highlight the discrepancy between the rigid constitutional analysis of this
Court and the more complex moral sentiments of Filipinos. We do not suggest that public opinion, even at its
most liberal, reflect a clear-cut strong consensus favorable to gay rights claims and we neither attempt nor
expect to affect individual perceptions of homosexuality through this Decision.
The OSG argues that since there has been neither prior restraint nor subsequent punishment imposed
on Ang Ladlad, and its members have not been deprived of their right to voluntarily associate, then there has
been no restriction on their freedom of expression or association. The OSG argues that:
There was no utterance restricted, no publication censored, or any assembly denied. [COMELEC] simply
exercised its authority to review and verify the qualifications of petitioner as a sectoral party applying to
participate in the party-list system. This lawful exercise of duty cannot be said to be a transgression of Section
4, Article III of the Constitution.
xxxx
A denial of the petition for registration x x x does not deprive the members of the petitioner to freely take part
in the conduct of elections. Their right to vote will not be hampered by said denial. In fact, the right to vote is a
constitutionally-guaranteed right which cannot be limited.
As to its right to be elected in a genuine periodic election, petitioner contends that the denial of Ang Ladlad’s
petition has the clear and immediate effect of limiting, if not outrightly nullifying the capacity of its members to
fully and equally participate in public life through engagement in the party list elections.
This argument is puerile. The holding of a public office is not a right but a privilege subject to limitations
imposed by law. x x x47
The OSG fails to recall that petitioner has, in fact, established its qualifications to participate in the party-list
system, and – as advanced by the OSG itself – the moral objection offered by the COMELEC was not a
limitation imposed by law. To the extent, therefore, that the petitioner has been precluded, because of
COMELEC’s action, from publicly expressing its views as a political party and participating on an equal basis
in the political process with other equally-qualified party-list candidates, we find that there has, indeed, been a
transgression of petitioner’s fundamental rights.
Non-Discrimination and International Law
In an age that has seen international law evolve geometrically in scope and promise, international human
rights law, in particular, has grown dynamically in its attempt to bring about a more just and humane world
order. For individuals and groups struggling with inadequate structural and governmental support,
international human rights norms are particularly significant, and should be effectively enforced in domestic
legal systems so that such norms may become actual, rather than ideal, standards of conduct.
Our Decision today is fully in accord with our international obligations to protect and promote human rights. In
particular, we explicitly recognize the principle of non-discrimination as it relates to the right to electoral
participation, enunciated in the UDHR and the ICCPR.
The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:
Article 26
All persons are equal before the law and are entitled without any discrimination to the equal protection of the
law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.
In this context, the principle of non-discrimination requires that laws of general application relating to elections
be applied equally to all persons, regardless of sexual orientation. Although sexual orientation is not
specifically enumerated as a status or ratio for discrimination in Article 26 of the ICCPR, the ICCPR Human
Rights Committee has opined that the reference to "sex" in Article 26 should be construed to include "sexual
orientation."48 Additionally, a variety of United Nations bodies have declared discrimination on the basis of
sexual orientation to be prohibited under various international agreements.49
The UDHR provides:
Article 21.
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen
representatives.
Likewise, the ICCPR states:
Article 25
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and
without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal
suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral participation is
elaborated by the Human Rights Committee in its General Comment No. 25 (Participation in Public Affairs and
the Right to Vote) as follows:
1. Article 25 of the Covenant recognizes and protects the right of every citizen to take part in the conduct of
public affairs, the right to vote and to be elected and the right to have access to public service. Whatever form
of constitution or government is in force, the Covenant requires States to adopt such legislative and other
measures as may be necessary to ensure that citizens have an effective opportunity to enjoy the rights it
protects. Article 25 lies at the core of democratic government based on the consent of the people and in
conformity with the principles of the Covenant.
xxxx
15. The effective implementation of the right and the opportunity to stand for elective office ensures that
persons entitled to vote have a free choice of candidates. Any restrictions on the right to stand for election,
such as minimum age, must be justifiable on objective and reasonable criteria. Persons who are otherwise
eligible to stand for election should not be excluded by unreasonable or discriminatory requirements such as
education, residence or descent, or by reason of political affiliation. No person should suffer discrimination or
disadvantage of any kind because of that person's candidacy. States parties should indicate and explain the
legislative provisions which exclude any group or category of persons from elective office.50
We stress, however, that although this Court stands willing to assume the responsibility of giving effect to the
Philippines’ international law obligations, the blanket invocation of international law is not the panacea for all
social ills. We refer now to the petitioner’s invocation of the Yogyakarta Principles (the Application of
International Human Rights Law In Relation to Sexual Orientation and Gender Identity),51 which petitioner
declares to reflect binding principles of international law.
At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are obligatory
on the Philippines. There are declarations and obligations outlined in said Principles which are not reflective of
the current state of international law, and do not find basis in any of the sources of international law
enumerated under Article 38(1) of the Statute of the International Court of Justice.52 Petitioner has not
undertaken any objective and rigorous analysis of these alleged principles of international law to ascertain
their true status.
We also hasten to add that not everything that society – or a certain segment of society – wants or demands
is automatically a human right. This is not an arbitrary human intervention that may be added to or subtracted
from at will. It is unfortunate that much of what passes for human rights today is a much broader context of
needs that identifies many social desires as rights in order to further claims that international law obliges
states to sanction these innovations. This has the effect of diluting real human rights, and is a result of the
notion that if "wants" are couched in "rights" language, then they are no longer controversial.1avvphi1
Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated by
various international law professors, are – at best – de lege ferenda – and do not constitute binding
obligations on the Philippines. Indeed, so much of contemporary international law is characterized by the "soft
law" nomenclature, i.e., international law is full of principles that promote international cooperation, harmony,
and respect for human rights, most of which amount to no more than well-meaning desires, without the
support of either State practice or opinio juris.53
As a final note, we cannot help but observe that the social issues presented by this case are emotionally
charged, societal attitudes are in flux, even the psychiatric and religious communities are divided in opinion.
This Court’s role is not to impose its own view of acceptable behavior. Rather, it is to apply the Constitution
and laws as best as it can, uninfluenced by public opinion, and confident in the knowledge that our democracy
is resilient enough to withstand vigorous debate.
WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the Commission on Elections dated
November 11, 2009 and December 16, 2009 in SPP No. 09-228 (PL) are hereby SET ASIDE. The
Commission on Elections is directed to GRANT petitioner’s application for party-list accreditation.
SO ORDERED.
EN BANC
G.R. No. 162759 August 4, 2006
LOIDA NICOLAS-LEWIS, GREGORIO B. MACABENTA, ALEJANDRO A. ESCLAMADO, ARMANDO B.
HEREDIA, REUBEN S. SEGURITAN, ERIC LACHICA FURBEYRE, TERESITA A. CRUZ, JOSEFINA
OPENA DISTERHOFT, MERCEDES V. OPENA, CORNELIO R. NATIVIDAD, EVELYN D.
NATIVIDAD, Petitioners,
vs.
COMMISSION ON ELECTIONS, Respondent.
DECISION
GARCIA, J.:
In this petition for certiorari and mandamus, petitioners, referring to themselves as "duals" or dual citizens,
pray that they and others who retained or reacquired Philippine citizenship under Republic Act (R.A.) No.
9225, the Citizenship Retention and Re-Acquisition Act of 2003, be allowed to avail themselves of the
mechanism provided under the Overseas Absentee Voting Act of 2003 1 (R.A. 9189) and that the
Commission on Elections (COMELEC) accordingly be ordered to allow them to vote and register as absentee
voters under the aegis of R.A. 9189.
The facts:
Petitioners are successful applicants for recognition of Philippine citizenship under R.A. 9225 which accords
to such applicants the right of suffrage, among others. Long before the May 2004 national and local elections,
petitioners sought registration and certification as "overseas absentee voter" only to be advised by the
Philippine Embassy in the United States that, per a COMELEC letter to the Department of Foreign Affairs
dated September 23, 2003 2, they have yet no right to vote in such elections owing to their lack of the oneyear residence requirement prescribed by the Constitution. The same letter, however, urged the different
Philippine posts abroad not to discontinue their campaign for voter’s registration, as the residence restriction
adverted to would contextually affect merely certain individuals who would likely be eligible to vote in future
elections.
Prodded for clarification by petitioner Loida Nicolas-Lewis in the light of the ruling in Macalintal vs.
COMELEC 3 on the residency requirement, the COMELEC wrote in response:
Although R.A. 9225 enjoys the presumption of constitutionality …, it is the Commission's position that those
who have availed of the law cannot exercise the right of suffrage given under the OAVL for the reason that the
OAVL was not enacted for them. Hence, as Filipinos who have merely re-acquired their citizenship on 18
September 2003 at the earliest, and as law and jurisprudence now stand, they are considered regular voters
who have to meet the requirements of residency, among others under Section 1, Article 5 of the
Constitution. 4
Faced with the prospect of not being able to vote in the May 2004 elections owing to the COMELEC's refusal
to include them in the National Registry of Absentee Voters, petitioner Nicolas-Lewis et al., 5 filed on April 1,
2004 this petition for certiorari and mandamus.
A little over a week before the May 10, 2004 elections, or on April 30, 2004, the COMELEC filed a
Comment, 6 therein praying for the denial of the petition. As may be expected, petitioners were not able to
register let alone vote in said elections.
On May 20, 2004, the Office of the Solicitor General (OSG) filed a Manifestation (in Lieu of Comment), therein
stating that "all qualified overseas Filipinos, including dual citizens who care to exercise the right of suffrage,
may do so" , observing, however, that the conclusion of the 2004 elections had rendered the petition moot
and academic. 7
The holding of the 2004 elections had, as the OSG pointed out, indeed rendered the petition moot and
academic, but insofar only as petitioners’ participation in such political exercise is concerned. The broader
and transcendental issue tendered or subsumed in the petition, i.e., the propriety of allowing "duals" to
participate and vote as absentee voter in future elections, however, remains unresolved.
Observing the petitioners’ and the COMELEC’s respective formulations of the issues, the same may be
reduced into the question of whether or not petitioners and others who might have meanwhile retained and/or
reacquired Philippine citizenship pursuant to R.A. 9225 may vote as absentee voter under R.A. 9189.
The Court resolves the poser in the affirmative, and thereby accords merit to the petition.
In esse, this case is all about suffrage. A quick look at the governing provisions on the right of suffrage is,
therefore, indicated.
We start off with Sections 1 and 2 of Article V of the Constitution, respectively reading as follows:
SECTION 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law,
who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and
in the place wherein they propose to vote for at least six months immediately preceding the election. xxx.
SEC 2. The Congress shall provide … a system for absentee voting by qualified Filipinos abroad.
In a nutshell, the aforequoted Section 1 prescribes residency requirement as a general eligibility factor for the
right to vote. On the other hand, Section 2 authorizes Congress to devise a system wherein an absentee may
vote, implying that a non-resident may, as an exception to the residency prescription in the preceding section,
be allowed to vote.
In response to its above mandate, Congress enacted R.A. 9189 - the OAVL 8 - identifying in its Section 4 who
can vote under it and in the following section who cannot, as follows:
Section 4. Coverage. – All citizens of the Philippines abroad, who are not otherwise disqualified by law, at
least eighteen (18) years of age on the day of elections, may vote for president, vice-president, senators and
party-list representatives.
Section 5. Disqualifications. – The following shall be disqualified from voting under this Act:
(a) Those who have lost their Filipino citizenship in accordance with Philippine laws;
(b) Those who have expressly renounced their Philippine citizenship and who have pledged allegiance to a
foreign country;
(c) Those who have … [been] convicted in a final judgment by a court or tribunal of an offense punishable by
imprisonment of not less than one (1) year, including those who have … been found guilty of Disloyalty as
defined under Article 137 of the Revised Penal Code, ….;
(d) An immigrant or a permanent resident who is recognized as such in the host country, unless he/she
executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that he/she
shall resume actual physical permanent residence in the Philippines not later than three (3) years from
approval of his/her registration under this Act. Such affidavit shall also state that he/she has not applied for
citizenship in another country. Failure to return shall be the cause for the removal of the name of the
immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent
disqualification to vote in absentia.
(e) Any citizen of the Philippines abroad previously declared insane or incompetent by competent authority ….
(Words in bracket added.)
Notably, Section 5 lists those who cannot avail themselves of the absentee voting mechanism. However,
Section 5(d) of the enumeration respecting Filipino immigrants and permanent residents in another country
opens an exception and qualifies the disqualification rule. Section 5(d) would, however, face a constitutional
challenge on the ground that, as narrated in Macalintal, it … violates Section 1, Article V of the 1987 Constitution which requires that the voter must be a resident in the
Philippines for at least one year and in the place where he proposes to vote for at least six months
immediately preceding an election. [The challenger] cites … Caasi vs. Court of Appeals 9 to support his claim
[where] the Court held that a "green card" holder immigrant to the [US] is deemed to have abandoned his
domicile and residence in the Philippines.
[The challenger] further argues that Section 1, Article V of the Constitution does not allow provisional
registration or a promise by a voter to perform a condition to be qualified to vote in a political exercise; that the
legislature should not be allowed to circumvent the requirement of the Constitution on the right of suffrage by
providing a condition thereon which in effect amends or alters the aforesaid residence requirement to qualify a
Filipino abroad to vote. He claims that the right of suffrage should not be granted to anyone who, on the date
of the election, does not possess the qualifications provided for by Section 1, Article V of the
Constitution. 10 (Words in bracket added.)
As may be recalled, the Court upheld the constitutionality of Section 5(d) of R.A. 9189 mainly on the strength
of the following premises:
As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies an immigrant or permanent
resident who is "recognized as such in the host country" because immigration or permanent residence in
another country implies renunciation of one's residence in his country of origin. However, same Section allows
an immigrant and permanent resident abroad to register as voter for as long as he/she executes an affidavit to
show that he/she has not abandoned his domicile in pursuance of the constitutional intent expressed in
Sections 1 and 2 of Article V that "all citizens of the Philippines not otherwise disqualified by law" must be
entitled to exercise the right of suffrage and, that Congress must establish a system for absentee voting; for
otherwise, if actual, physical residence in the Philippines is required, there is no sense for the framers of the
Constitution to mandate Congress to establish a system for absentee voting.
Contrary to the claim of [the challenger], the execution of the affidavit itself is not the enabling or enfranchising
act. The affidavit required in Section 5(d) is not only proof of the intention of the immigrant or permanent
resident to go back and resume residency in the Philippines, but more significantly, it serves as an explicit
expression that he had not in fact abandoned his domicile of origin. Thus, it is not correct to say that the
execution of the affidavit under Section 5(d) violates the Constitution that proscribes "provisional registration
or a promise by a voter to perform a condition to be qualified to vote in a political exercise." 11
Soon after Section 5(d) of R.A. 9189 passed the test of constitutionality, Congress enacted R.A. 9225 the
relevant portion of which reads:
SEC. 2. Declaration of Policy. – It is hereby declared the policy of the State that all Philippine citizens who
become citizens of another country shall be deemed not to have lost their Philippine citizenship under the
conditions of this Act.
SEC. 3. Retention of Philippine Citizenship. – Any provision of law to the contrary notwithstanding, naturalborn citizens of the Philippines who have lost their Philippine citizenship by reason of their naturalization as
citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the
following oath of allegiance to the Republic:
xxx xxx xxx
Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign
country shall retain their Philippine citizenship upon taking the aforesaid oath.
SEC. 4. Derivative Citizenship. – The unmarried child, whether legitimate, illegitimate or adopted, below
eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act shall be
deemed citizens of the Philippines.
SEC. 5. Civil and Political Rights and Liabilities. – Those who retain or re-acquire Philippine citizenship under
this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities
under existing laws of the Philippines and the following conditions:
(1) Those intending to exercise their right of suffrage must meet the requirements under Section 1, Article V of
the Constitution, Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003"
and other existing laws;
(2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public
office as required by the Constitution and existing laws and, at the time of the filing of the certificate of
candidacy, make a personal and sworn renunciation of any and all foreign citizenship …;
3) xxx xxx xxx.
(4) xxx xxx xxx;
(5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by,
or extended to, those who:
(a) are candidates for or are occupying any public office in the country of which they are naturalized citizens;
and/or
(b) are in active service as commissioned or non-commissioned officers in the armed forces of the country
which they are naturalized citizens.
After what appears to be a successful application for recognition of Philippine citizenship under R.A. 9189,
petitioners now invoke their right to enjoy … political rights, specifically the right of suffrage, pursuant to
Section 5 thereof.
Opposing the petitioners’ bid, however, respondent COMELEC invites attention to the same Section 5 (1)
providing that "duals" can enjoy their right to vote, as an adjunct to political rights, only if they meet the
requirements of Section 1, Article V of the Constitution, R.A. 9189 and other existing laws. Capitalizing on
what at first blush is the clashing provisions of the aforecited provision of the Constitution, which, to repeat,
requires residency in the Philippines for a certain period, and R.A. 9189 which grants a Filipino non-resident
absentee voting rights, 12 COMELEC argues:
4. ‘DUALS’ MUST FIRST ESTABLISH THEIR DOMICILE/ RESIDENCE IN THE PHILIPPINES
4.01. The inclusion of such additional and specific requirements in RA 9225 is logical. The ‘duals,’ upon
renouncement of their Filipino citizenship and acquisition of foreign citizenship, have practically and legally
abandoned their domicile and severed their legal ties to the homeland as a consequence. Having
subsequently acquired a second citizenship (i.e., Filipino) then, ‘duals’ must, for purposes of voting, first of all,
decisively and definitely establish their domicile through positive acts; 13
The Court disagrees.
As may be noted, there is no provision in the dual citizenship law - R.A. 9225 - requiring "duals" to actually
establish residence and physically stay in the Philippines first before they can exercise their right to vote. On
the contrary, R.A. 9225, in implicit acknowledgment that "duals" are most likely non-residents, grants under its
Section 5(1) the same right of suffrage as that granted an absentee voter under R.A. 9189. It cannot be
overemphasized that R.A. 9189 aims, in essence, to enfranchise as much as possible all overseas Filipinos
who, save for the residency requirements exacted of an ordinary voter under ordinary conditions, are qualified
to vote. Thus, wrote the Court in Macalintal:
It is clear from these discussions of the … Constitutional Commission that [it] intended to enfranchise as much
as possible all Filipino citizens abroad who have not abandoned their domicile of origin. The Commission
even intended to extend to young Filipinos who reach voting age abroad whose parents’ domicile of origin is
in the Philippines, and consider them qualified as voters for the first time.
It is in pursuance of that intention that the Commission provided for Section 2 [Article V] immediately after the
residency requirement of Section 1. By the doctrine of necessary implication in statutory construction, …, the
strategic location of Section 2 indicates that the Constitutional Commission provided for an exception to the
actual residency requirement of Section 1 with respect to qualified Filipinos abroad. The same Commission
has in effect declared that qualified Filipinos who are not in the Philippines may be allowed to vote even
though they do not satisfy the residency requirement in Section 1, Article V of the Constitution.
That Section 2 of Article V of the Constitution is an exception to the residency requirement found in Section 1
of the same Article was in fact the subject of debate when Senate Bill No. 2104, which became R.A. No.
9189, was deliberated upon on the Senate floor, thus:
Senator Arroyo. Mr. President, this bill should be looked into in relation to the constitutional provisions. I think
the sponsor and I would agree that the Constitution is supreme in any statute that we may enact.
Let me read Section 1, Article V, of the Constitution ….
xxx xxx xxx
Now, Mr. President, the Constitution says, "who shall have resided in the Philippines." They are permanent
immigrants. They have changed residence so they are barred under the Constitution. This is why I asked
whether this committee amendment which in fact does not alter the original text of the bill will have any effect
on this?
Senator Angara. Good question, Mr. President. And this has been asked in various fora. This is in compliance
with the Constitution. One, the interpretation here of "residence" is synonymous with "domicile."
As the gentleman and I know, Mr. President, "domicile" is the intent to return to one's home. And the fact that
a Filipino may have been physically absent from the Philippines and may be physically a resident of the
United States, for example, but has a clear intent to return to the Philippines, will make him qualified as a
resident of the Philippines under this law.
This is consistent, Mr. President, with the constitutional mandate that we – that Congress – must provide a
franchise to overseas Filipinos.
If we read the Constitution and the suffrage principle literally as demanding physical presence, then there is
no way we can provide for offshore voting to our offshore kababayan, Mr. President.
Senator Arroyo. Mr. President, when the Constitution says, in Section 2 of Article V, it reads: "The Congress
shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee
voting by qualified Filipinos abroad."
The key to this whole exercise, Mr. President, is "qualified." In other words, anything that we may do or say in
granting our compatriots abroad must be anchored on the proposition that they are qualified. Absent the
qualification, they cannot vote. And "residents" (sic) is a qualification.
xxx xxx xxx
Look at what the Constitution says – "In the place wherein they propose to vote for at least six months
immediately preceding the election."
Mr. President, all of us here have run (sic) for office.
I live in Makati. My neighbor is Pateros …. We are separated only by a creek. But one who votes in Makati
cannot vote in Pateros unless he resides in Pateros for six months. That is how restrictive our Constitution is.
….
As I have said, if a voter in Makati would want to vote in Pateros, yes, he may do so. But he must do so, make
the transfer six months before the election, otherwise, he is not qualified to vote.
xxx xxx xxx
Senator Angara. It is a good point to raise, Mr. President. But it is a point already well-debated even in the
constitutional commission of 1986. And the reason Section 2 of Article V was placed immediately after the sixmonth/one-year residency requirement is to demonstrate unmistakably that Section 2 which authorizes
absentee voting is an exception to the six-month/one-year residency requirement. That is the first principle,
Mr. President, that one must remember.
The second reason, Mr. President, is that under our jurisprudence … – "residency" has been interpreted as
synonymous with "domicile."
But the third more practical reason, … is, if we follow the interpretation of the gentleman, then it is legally and
constitutionally impossible to give a franchise to vote to overseas Filipinos who do not physically live in the
country, which is quite ridiculous because that is exactly the whole point of this exercise – to enfranchise them
and empower them to vote. 14 (Emphasis and words in bracket added; citations omitted)
Lest it be overlooked, no less than the COMELEC itself admits that the Citizenship Retention and
Re-Acquisition Act expanded the coverage of overseas absentee voting. According to the poll body:
1.05 With the passage of RA 9225 the scope of overseas absentee voting has been consequently expanded
so as to include Filipinos who are also citizens of other countries, subject, however, to the strict prerequisites
indicated in the pertinent provisions of RA 9225; 15
Considering the unison intent of the Constitution and R.A. 9189 and the expansion of the scope of that law
with the passage of R.A. 9225, the irresistible conclusion is that "duals" may now exercise the right of suffrage
thru the absentee voting scheme and as overseas absentee voters. R.A. 9189 defines the terms adverted to
in the following wise:
"Absentee Voting" refers to the process by which qualified citizens of the Philippines abroad exercise their
right to vote;
"Overseas Absentee Voter" refers to a citizen of the Philippines who is qualified to register and vote under this
Act, not otherwise disqualified by law, who is abroad on the day of elections;
While perhaps not determinative of the issue tendered herein, we note that the expanded thrust of R.A. 9189
extends also to what might be tag as the next generation of "duals". This may be deduced from the inclusion
of the provision on derivative citizenship in R.A. 9225 which reads:
SEC. 4. Derivative Citizenship. – The unmarried child, whether legitimate, illegitimate or adopted, below
eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act shall be
deemed citizens of the Philippines.
It is very likely that a considerable number of those unmarried children below eighteen (18) years of age had
never set foot in the Philippines. Now then, if the next generation of "duals" may nonetheless avail themselves
the right to enjoy full civil and political rights under Section 5 of the Act, then there is neither no rhyme nor
reason why the petitioners and other present day "duals," provided they meet the requirements under Section
1, Article V of the Constitution in relation to R.A. 9189, be denied the right of suffrage as an overseas
absentee voter. Congress could not have plausibly intended such absurd situation.
WHEREFORE, the instant petition is GRANTED. Accordingly, the Court rules and so holds that those who
retain or re-acquire Philippine citizenship under Republic Act No. 9225, the Citizenship Retention and
Re-Acquisition Act of 2003, may exercise the right to vote under the system of absentee voting in Republic
Act No. 9189, the Overseas Absentee Voting Act of 2003.
SO ORDERED.
G.R. No. 201716
January 8, 2013
MAYOR ABELARDO ABUNDO, SR., Petitioner,
vs.
COMMISSION ON ELECTIONS and ERNESTO R. VEGA, Respondents.
DECISION
VELASCO, JR., J.:
The Case
In this Petition for Certiorari under Rule 65, petitioner Abelardo Abundo, Sr. (Abundo) assails and seeks to
nullify (1) the February 8, 2012 Resolution1 of the Second Division, Commission on Elections (COMELEC), in
EAC (AE) No. A-25-2010 and (2) the May 10, 2012 Resolution2 of the COMELEC en banc affirming that
division’s disposition. The assailed issuances, in turn, affirmed the Decision of the Regional Trial Court (RTC)
of Virac, Catanduanes, Branch 43, dated August 9, 2010, in Election Case No. 55 declaring Abundo as
ineligible, under the three-term limit rule, to run in the 2010 elections for the position of, and necessarily to sit
as, Mayor of Viga, Catanduanes.
The antecedent facts are undisputed.
For four (4) successive regular elections, namely, the 2001, 2004, 2007 and 2010 national and local elections,
Abundo vied for the position of municipal mayor of Viga, Catanduanes. In both the 2001 and 2007 runs, he
emerged and was proclaimed as the winning mayoralty candidate and accordingly served the corresponding
terms as mayor. In the 2004 electoral derby, however, the Viga municipal board of canvassers initially
proclaimed as winner one Jose Torres (Torres), who, in due time, performed the functions of the office of
mayor. Abundo protested Torres’ election and proclamation. Abundo was eventually declared the winner of the
2004 mayoralty electoral contest, paving the way for his assumption of office starting May 9, 2006 until the
end of the 2004-2007 term on June 30, 2007, or for a period of a little over one year and one month.
Then came the May 10, 2010 elections where Abundo and Torres again opposed each other. When Abundo
filed his certificate of candidacy3 for the mayoralty seat relative to this electoral contest, Torres lost no time in
seeking the former’s disqualification to run, the corresponding petition,4 docketed as SPA Case No. 10-128
(DC), predicated on the three-consecutive term limit rule. On June 16, 2010, the COMELEC First Division
issued a Resolution5 finding for Abundo, who in the meantime bested Torres by 219 votes6 and was
accordingly proclaimed 2010 mayor-elect of Viga, Catanduanes.
Meanwhile, on May 21, 2010, or before the COMELEC could resolve the adverted disqualification case Torres
initiated against Abundo, herein private respondent Ernesto R. Vega (Vega) commenced a quo
warranto7 action before the RTC-Br. 43 in Virac, Catanduanes, docketed as Election Case No. 55, to unseat
Abundo on essentially the same grounds Torres raised in his petition to disqualify.
The Ruling of the Regional Trial Court
By Decision8 of August 9, 2010 in Election Case No. 55, the RTC declared Abundo ineligible to serve as
municipal mayor, disposing as follows:
WHEREFORE, Decision is, hereby, rendered GRANTING the petition and declaring Abelardo Abundo, Sr.
ineligible to serve as municipal mayor of Viga, Catanduanes.
SO ORDERED.9
In so ruling, the trial court, citing Aldovino, Jr. v. COMELEC,10 found Abundo to have already served three
consecutive mayoralty terms, to wit, 2001-2004, 2004-2007 and 2007-2010, and, hence, disqualified for
another, i.e., fourth, consecutive term. Abundo, the RTC noted, had been declared winner in the aforesaid
2004 elections consequent to his protest and occupied the position of and actually served as Viga mayor for
over a year of the remaining term, i.e., from May 9, 2006 to June 30, 2007, to be exact. To the RTC, the year
and a month service constitutes a complete and full service of Abundo’s second term as mayor.
Therefrom, Abundo appealed to the COMELEC, his recourse docketed as EAC (AE) No. A-25-2010.
The Ruling of the COMELEC
On February 8, 2012, in EAC (AE) No. A-25-2010, the COMELEC’s Second Division rendered the first
assailed Resolution, the dispositive portion of which reads as follows:
WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court Branch 73, Virac,
Catanduanes is AFFIRMED and the appeal is DISMISSED for lack of merit.
SO ORDERED.11
Just like the RTC, the COMELEC’s Second Division ruled against Abundo on the strength of Aldovino, Jr. and
held that service of the unexpired portion of a term by a protestant who is declared winner in an election
protest is considered as service for one full term within the contemplation of the three-term limit rule.
In time, Abundo sought but was denied reconsideration by the COMELEC en banc per its equally assailed
Resolution of May 10, 2012. The fallo of the COMELEC en banc’s Resolution reads as follows:
WHEREFORE, premises considered, the motion for reconsideration is DENIED for lack of merit. The
Resolution of the Commission (Second Division) is hereby AFFIRMED.
SO ORDERED.12
In affirming the Resolution of its Second Division, the COMELEC en banc held in essence the following: first,
there was no involuntary interruption of Abundo’s 2004-2007 term service which would be an exception to the
three-term limit rule as he is considered never to have lost title to the disputed office after he won in his
election protest; and second, what the Constitution prohibits is for an elective official to be in office for the
same position for more than three consecutive terms and not to the service of the term.
Hence, the instant petition with prayer for the issuance of a temporary restraining order (TRO) and/or
preliminary injunction.
Intervening Events
In the meantime, following the issuance by the COMELEC of its May 10, 2012 Resolution denying Abundo’s
motion for reconsideration, the following events transpired:
1. On June 20, 2012, the COMELEC issued an Order13 declaring its May 10, 2012 Resolution final
and executory. The following day, June 21, 2012, the COMELEC issued an Entry of Judgment.14
2. On June 25, 2012, Vega filed a Motion for Execution15 with the RTC-Br. 43 in Virac, Catanduanes.
3. On June 27, 2012, the COMELEC, acting on Vega’s counsel’s motion16 filed a day earlier, issued an
Order17 directing the bailiff of ECAD (COMELEC) to personally deliver the entire records to said RTC.
On June 29, 2012, the COMELEC ECAD Bailiff personally delivered the entire records of the instant
case to, and were duly received by, the clerk of court of RTC-Br. 43.
4. On June 29, 2012, or on the same day of its receipt of the case records, the RTC-Br. 43 in Virac,
Catanduanes granted Vega’s Motion for Execution through an Order18 of even date. And a Writ of
Execution19 was issued on the same day.
5. On July 2, 2012, Sheriff Q. Tador, Jr. received the Writ of Execution and served the same at the
office of Mayor Abundo on the same day via substituted service.
6. On July 3, 2012, the Court issued a TRO20 enjoining the enforcement of the assailed COMELEC
Resolutions.
7. On July 4, 2012, Vega received the Court’s July 3, 2012 Resolution21 and a copy of the TRO. On
the same day, Vice-Mayor Emeterio M. Tarin and First Councilor Cesar O. Cervantes of Viga,
Catanduanes took their oaths of office22 as mayor and vice-mayor of Viga, Catanduanes, respectively.
8. On July 5, 2012, Vega received a copy of Abundo’s Seventh (7th) Most Extremely Urgent
Manifestation and Motion23 dated June 28, 2012 praying for the issuance of a TRO and/or status quo
ante Order. On the same day, Vice-Mayor Emeterio M. Tarin and First Councilor Cesar O. Cervantes––
who had taken their oaths of office the day before—assumed the posts of mayor and vice-mayor of
Viga, Catanduanes.24
9. On July 6, 2012, Vega interposed a Motion (To Admit Attached Manifestation)25 and Manifestation
with Leave to Admit26 dated July 5, 2012 stating that the TRO thus issued by the Court has become
functus officio owing to the execution of the RTC’s Decision in Election Case No. 55.
10. On July 10, 2012, Vega filed his Comment/Opposition with Leave to the Petitioner’s Prayer for the
Issuance of a Status Quo Ante Order27 reiterating the argument that since Vice-Mayor Emeterio M.
Tarin and First Councilor Cesar O. Cervantes already assumed the posts of Mayor and Vice-Mayor of
Viga, Catanduanes, then a Status Quo Ante Order would serve no purpose.
11. On July 12, 2012, Abundo filed his Most Urgent Manifestation and Motion to Convert the July 3,
2012 TRO into a Status Quo Ante Order (In View of the Unreasonable and Inappropriate Progression
of Events).28
It is upon the foregoing backdrop of events that Abundo was dislodged from his post as incumbent mayor of
Viga, Catanduanes. To be sure, the speed which characterized Abundo’s ouster despite the supervening
issuance by the Court of a TRO on July 3, 2012 is not lost on the Court. While it is not clear whether ViceMayor Tarin and First Councilor Cervantes knew of or put on notice about the TRO either before they took
their oaths of office on July 4, 2012 or before assuming the posts of mayor and vice-mayor on July 5, 2012,
the confluence of events following the issuance of the assailed COMELEC en banc irresistibly tends to show
that the TRO––issued as it were to maintain the status quo, thus averting the premature ouster of Abundo
pending this Court’s resolution of his appeal––appears to have been trivialized.
On September 11, 2012, Vega filed his Comment on Abundo’s petition, followed not long after by public
respondent COMELEC’s Consolidated Comment.29
The Issues
Abundo raises the following grounds for the allowance of the petition:
6.1 The Commission En Banc committed grave abuse of discretion amounting to lack or excess of
jurisdiction when it declared the arguments in Abundo’s motion for reconsideration as mere rehash and
reiterations of the claims he raised prior to the promulgation of the Resolution.
6.2 The Commission En Banc committed grave abuse of discretion amounting to lack or excess of
jurisdiction when it declared that Abundo has consecutively served for three terms despite the fact that
he only served the remaining one year and one month of the second term as a result of an election
protest.30
First Issue:
Arguments in Motion for Reconsideration Not Mere Reiteration
The COMELEC en banc denied Abundo’s motion for reconsideration on the basis that his arguments in said
motion are mere reiterations of what he already brought up in his appeal Brief before the COMELEC Second
Division. In this petition, petitioner claims otherwise.
Petitioner’s assertion is devoid of merit.
A comparison of Abundo’s arguments in the latter’s Brief vis-à-vis those in his Motion for Reconsideration
(MR) reveals that the arguments in the MR are elucidations and amplications of the same issues raised in the
brief. First, in his Brief, Abundo raised the sole issue of lack of jurisdiction of the RTC to consider the quo
warranto case since the alleged violation of the three-term limit has already been rejected by the COMELEC
First Division in SPA Case No. 10-128 (DC), while in his MR, Abundo raised the similar ground of the
conclusiveness of the COMELEC’s finding on the issue of his qualification to run for the current term. Second,
in his Brief, Abundo assailed RTC’s reliance on Aldovino, Jr., while in his MR, he argued that the Court’s
pronouncement in Aldovino, Jr., which dealt with preventive suspension, is not applicable to the instant case
as it involves only a partial service of the term. Abundo argued in his Brief that his situation cannot be equated
with the case of preventive suspension as held in Aldovino, Jr., while in his MR, he argued before that the
almost two years which he did not sit as mayor during the 2004-2007 term is an interruption in the continuity
of his service for the full term.
Thus, COMELEC did not err in ruling that the issues in the MR are a rehash of those in the Brief.
Core Issue:
Whether or not Abundo is deemed to have served three consecutive terms
The pivotal determinative issue then is whether the service of a term less than the full three years by an
elected official arising from his being declared as the duly elected official upon an election protest is
considered as full service of the term for purposes of the application of the three consecutive term limit for
elective local officials.
On this core issue, We find the petition meritorious. The consecutiveness of what otherwise would have been
Abundo’s three successive, continuous mayorship was effectively broken during the 2004-2007 term when he
was initially deprived of title to, and was veritably disallowed to serve and occupy, an office to which he, after
due proceedings, was eventually declared to have been the rightful choice of the electorate.
The three-term limit rule for elective local officials, a disqualification rule, is found in Section 8, Article X of the
1987 Constitution, which provides:
Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by
law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary
renunciation of the office for any length of time shall not be considered as an interruption in the continuity of
his service for the full term for which he was elected. (Emphasis supplied.)
and is reiterated in Sec. 43(b) of Republic Act No. (RA) 7160, or the Local Government Code (LGC) of 1991,
thusly:
Sec. 43. Term of Office. —
xxxx
(b) No local elective official shall serve for more than three (3) consecutive terms in the same position.
Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the
continuity of service for the full term for which the elective official concerned was elected. (Emphasis Ours.)
To constitute a disqualification to run for an elective local office pursuant to the aforequoted constitutional and
statutory provisions, the following requisites must concur:
(1) that the official concerned has been elected for three consecutive terms in the same local
government post; and
(2) that he has fully served three consecutive terms.31
Judging from extant jurisprudence, the three-term limit rule, as applied to the different factual milieus, has its
complicated side. We shall revisit and analyze the various holdings and relevant pronouncements of the Court
on the matter.
As is clearly provided in Sec. 8, Art. X of the Constitution as well as in Sec. 43(b) of the LGC, voluntary
renunciation of the office by the incumbent elective local official for any length of time shall NOT, in
determining service for three consecutive terms, be considered an interruption in the continuity of service for
the full term for which the elective official concerned was elected. In Aldovino, Jr., however, the Court stated
the observation that the law "does not textually state that voluntary renunciation is the only actual interruption
of service that does not affect ‘continuity of service for a full term’ for purposes of the three-term limit rule."32
As stressed in Socrates v. Commission on Elections,33 the principle behind the three-term limit rule covers
only consecutive terms and that what the Constitution prohibits is a consecutive fourth term. Put a bit
differently, an elective local official cannot, following his third consecutive term, seek immediate reelection for
a fourth term,34 albeit he is allowed to seek a fresh term for the same position after the election where he
could have sought his fourth term but prevented to do so by reason of the prohibition.
There has, in fine, to be a break or interruption in the successive terms of the official after his or her third term.
An interruption usually occurs when the official does not seek a fourth term, immediately following the third. Of
course, the basic law is unequivocal that a "voluntary renunciation of the office for any length of time shall
NOT be considered an interruption in the continuity of service for the full term for which the elective official
concerned was elected." This qualification was made as a deterrent against an elective local official intending
to skirt the three-term limit rule by merely resigning before his or her third term ends. This is a voluntary
interruption as distinguished from involuntary interruption which may be brought about by certain events or
causes.
While appearing to be seemingly simple, the three-term limit rule has engendered a host of disputes resulting
from the varying interpretations applied on local officials who were elected and served for three terms or
more, but whose terms or service was punctuated by what they view as involuntary interruptions, thus entitling
them to a, but what their opponents perceive as a proscribed, fourth term. Involuntary interruption is claimed
to result from any of these events or causes: succession or assumption of office by operation of law,
preventive suspension, declaration of the defeated candidate as the winner in an election contest, declaration
of the proclaimed candidate as the losing party in an election contest, proclamation of a non-candidate as the
winner in a recall election, removal of the official by operation of law, and other analogous causes.
This brings us to an examination of situations and jurisprudence wherein such consecutive terms were
considered or not considered as having been "involuntarily interrupted or broken."
(1) Assumption of Office by Operation of Law
In Borja, Jr. v. Commission on Elections and Jose T. Capco, Jr.35 (1998) and Montebon v. Commission on
Elections36 (2008), the Court delved on the effects of "assumption to office by operation of law" on the threeterm limit rule. This contemplates a situation wherein an elective local official fills by succession a higher local
government post permanently left vacant due to any of the following contingencies, i.e., when the supposed
incumbent refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns or is
otherwise permanently incapacitated to discharge the functions of his office.37
In Borja, Jr., Jose T. Capco, Jr. (Capco) was elected vice-mayor of Pateros on January 18, 1988 for a term
ending June 30, 1992. On September 2, 1989, Capco became mayor, by operation of law, upon the death of
the incumbent mayor, Cesar Borja. Capco was then elected and served as mayor for terms 1992-1995 and
1995-1998. When Capco expressed his intention to run again for the mayoralty position during the 1998
elections, Benjamin U. Borja, Jr., who was then also a candidate for mayor, sought Capco’s disqualification for
violation of the three-term limit rule.
Finding for Capco, the Court held that for the disqualification rule to apply, "it is not enough that an individual
has served three consecutive terms in an elective local office, he must also have been elected to the same
position for the same number of times before the disqualification can apply."38 There was, the Court ruled, no
violation of the three-term limit, for Capco "was not elected to the office of the mayor in the first term but
simply found himself thrust into it by operation of law"39 when a permanent vacancy occurred in that office.
The Court arrived at a parallel conclusion in the case of Montebon. There, Montebon had been elected for
three consecutive terms as municipal councilor of Tuburan, Cebu in 1998-2001, 2001-2004, and 2004-2007.
However, in January 2004, or during his second term, Montebon succeeded and assumed the position of
vice-mayor of Tuburan when the incumbent vice-mayor retired. When Montebon filed his certificate of
candidacy again as municipal councilor, a petition for disqualification was filed against him based on the
three-term limit rule. The Court ruled that Montebon’s assumption of office as vice-mayor in January 2004 was
an interruption of his continuity of service as councilor. The Court emphasized that succession in local
government office is by operation of law and as such, it is an involuntary severance from office. Since the law
no less allowed Montebon to vacate his post as councilor in order to assume office as vice-mayor, his
occupation of the higher office cannot, without more, be deemed as a voluntary renunciation of his position as
councilor.
(2) Recall Election
With reference to the effects of recall election on the continuity of service, Adormeo v. Commission on
Elections40 (2002) and the aforementioned case of Socrates (2002) provide guidance.
In Adormeo, Ramon Talaga, Jr. (Talaga) was elected and served as mayor of Lucena City during terms 19921995 and 1995-1998. During the 1998 elections, Talaga lost to Bernard G. Tagarao. However, before
Tagarao’s 1998-2001 term ended, a recall election was conducted in May 2000 wherein Talaga won and
served the unexpired term of Tagarao until June 2001. When Talaga ran for mayor in 2001, his candidacy was
challenged on the ground he had already served as mayor for three consecutive terms for violation of the
three term-limit rule. The Court held therein that the remainder of Tagarao’s term after the recall election
during which Talaga served as mayor should not be considered for purposes of applying the three-term limit
rule. The Court emphasized that the continuity of Talaga’s mayorship was disrupted by his defeat during the
1998 elections.
A similar conclusion was reached by the Court in Socrates. The petitioners in that case assailed the
COMELEC Resolution which declared Edward Hagedorn qualified to run for mayor in a recall election. It
appeared that Hagedorn had been elected and served as mayor of Puerto Princesa City for three consecutive
terms: in 1992-1995, 1995-1998 and 1998-2001. Obviously aware of the three-term limit principle, Hagedorn
opted not to vie for the same mayoralty position in the 2001 elections, in which Socrates ran and eventually
won. However, midway into his term, Socrates faced recall proceedings and in the recall election held,
Hagedorn run for the former’s unexpired term as mayor. Socrates sought Hagedorn’s disqualification under
the three-term limit rule.
In upholding Hagedorn’s candidacy to run in the recall election, the Court ruled:
x x x After Hagedorn ceased to be mayor on June 30, 2001, he became a private citizen until the recall
election of September 24, 2002 when he won by 3,018 votes over his closest opponent, Socrates.
From June 30, 2001 until the recall election on September 24, 2002, the mayor of Puerto Princesa was
Socrates. During the same period, Hagedorn was simply a private citizen. This period is clearly an interruption
in the continuity of Hagedorn’s service as mayor, not because of his voluntary renunciation, but because of a
legal prohibition.41
The Court likewise emphasized in Socrates that "an elective local official cannot seek immediate reelection for
a fourth term. The prohibited election refers to the next regular election for the same office following the end of
the third consecutive term and, hence, any subsequent election, like recall election, is no longer covered x x
x."42
(3) Conversion of a Municipality into a City
On the other hand, the conversion of a municipality into a city does not constitute an interruption of the
incumbent official’s continuity of service. The Court said so in Latasa v. Commission on Elections43 (2003).
Latasa is cast against the ensuing backdrop: Arsenio A. Latasa was elected and served as mayor of the
Municipality of Digos, Davao del Sur for terms 1992-1995, 1995-1998, and 1998-2001. During his third term,
Digos was converted into a component city, with the corresponding cityhood law providing the holdover of
elective officials. When Latasa filed his certificate of candidacy as mayor for the 2001 elections, the Court
declared Latasa as disqualified to run as mayor of Digos City for violation of the three-term limit rule on the
basis of the following ratiocination:
This Court believes that (Latasa) did involuntarily relinquish his office as municipal mayor since the said office
has been deemed abolished due to the conversion. However, the very instant he vacated his office as
municipal mayor, he also assumed office as city mayor. Unlike in Lonzanida, where petitioner therein, for even
just a short period of time, stepped down from office, petitioner Latasa never ceased from acting as chief
executive of the local government unit. He never ceased from discharging his duties and responsibilities as
chief executive of Digos.
(Emphasis supplied.)
(4) Period of Preventive Suspension
In 2009, in the case Aldovino Jr., the Court espoused the doctrine that the period during which a local elected
official is under preventive suspension cannot be considered as an interruption of the continuity of his service.
The Court explained why so:
Strict adherence to the intent of the three-term limit rule demands that preventive suspension should not be
considered an interruption that allows an elective official’s stay in office beyond three terms. A preventive
suspension cannot simply be a term interruption because the suspended official continues to stay in office
although he is barred from exercising the functions and prerogatives of the office within the suspension
period. The best indicator of the suspended official’s continuity in office is the absence of a permanent
replacement and the lack of the authority to appoint one since no vacancy exists.44 (Emphasis supplied.)
(5) Election Protest
With regard to the effects of an election protest vis-à-vis the three-term limit rule, jurisprudence presents a
more differing picture. The Court’s pronouncements in Lonzanida v. Commission on Elections45 (1999), Ong
v. Alegre46 (2006), Rivera III v. Commission on Elections47 (2007) and Dizon v. Commission on
Elections48 (2009), all protest cases, are illuminating.
In Lonzanida, Romeo Lonzanida was elected and had served as municipal mayor of San Antonio, Zambales
in terms 1989-1992, 1992-1995 and 1995-1998. However, his proclamation relative to the 1995 election was
protested and was eventually declared by the RTC and then by COMELEC null and void on the ground of
failure of elections. On February 27, 1998, or about three months before the May 1998 elections, Lonzanida
vacated the mayoralty post in light of a COMELEC order and writ of execution it issued. Lonzanida’s opponent
assumed office for the remainder of the term. In the May 1998 elections, Lonzanida again filed his certificate
of candidacy. His opponent, Efren Muli, filed a petition for disqualification on the ground that Lonzanida had
already served three consecutive terms in the same post. The Court, citing Borja Jr., reiterated the two (2)
conditions which must concur for the three-term limit to apply: "1) that the official concerned has been elected
for three consecutive terms in the same local government post and 2) that he has fully served three
consecutive terms."49
In view of Borja, Jr., the Court ruled that the foregoing requisites were absent in the case of Lonzanida. The
Court held that Lonzanida cannot be considered as having been duly elected to the post in the May 1995
elections since his assumption of office as mayor "cannot be deemed to have been by reason of a valid
election but by reason of a void proclamation." And as a corollary point, the Court stated that Lonzanida did
not fully serve the 1995-1998 mayoral term having been ordered to vacate his post before the expiration of
the term, a situation which amounts to an involuntary relinquishment of office.This Court deviated from the
ruling in Lonzanida in Ong v. Alegre50 owing to a variance in the factual situations attendant.
In that case, Francis Ong (Ong) was elected and served as mayor of San Vicente, Camarines Norte for terms
1995-1998, 1998-2001, and 2001-2004. During the 1998 mayoralty elections, or during his supposed second
term, the COMELEC nullified Ong’s proclamation on the postulate that Ong lost during the 1998 elections.
However, the COMELEC’s decision became final and executory on July 4, 2001, when Ong had fully served
the 1998-2001 mayoralty term and was in fact already starting to serve the 2001-2004 term as mayor-elect of
the municipality of San Vicente. In 2004, Ong filed his certificate of candidacy for the same position as mayor,
which his opponent opposed for violation of the three-term limit rule.
Ong invoked the ruling in Lonzanida and argued that he could not be considered as having served as mayor
from 1998-2001 because he was not duly elected to the post and merely assumed office as a "presumptive
winner." Dismissing Ong’s argument, the Court held that his assumption of office as mayor for the term 19982001 constitutes "service for the full term" and hence, should be counted for purposes of the three-term limit
rule. The Court modified the conditions stated in Lonzanida in the sense that Ong’s service was deemed and
counted as service for a full term because Ong’s proclamation was voided only after the expiry of the term.
The Court noted that the COMELEC decision which declared Ong as not having won the 1998 elections was
"without practical and legal use and value" promulgated as it was after the contested term has expired. The
Court further reasoned:
Petitioner Francis Ong’s contention that he was only a presumptive winner in the 1998 mayoralty derby as his
proclamation was under protest did not make him less than a duly elected mayor. His proclamation as the
duly elected mayor in the 1998 mayoralty election coupled by his assumption of office and his continuous
exercise of the functions thereof from start to finish of the term, should legally be taken as service for a full
term in contemplation of the three-term rule.
The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary view would
mean that Alegre would – under the three-term rule - be considered as having served a term by virtue of a
veritably meaningless electoral protest ruling, when another actually served such term pursuant to a
proclamation made in due course after an election.51 (Emphasis supplied.)
The Court did not apply the ruling in Lonzanida and ruled that the case of Ong was different, to wit:
The difference between the case at bench and Lonzanida is at once apparent. For one, in Lonzanida, the
result of the mayoralty election was declared a nullity for the stated reason of "failure of election", and, as a
consequence thereof, the proclamation of Lonzanida as mayor-elect was nullified, followed by an order for
him to vacate the office of mayor. For another, Lonzanida did not fully serve the 1995-1998 mayoral term,
there being an involuntary severance from office as a result of legal processes. In fine, there was an effective
interruption of the continuity of service.52 (Emphasis supplied.)
Ong’s slight departure from Lonzanida would later find reinforcement in the consolidated cases of Rivera III v.
Commission on Elections53 and Dee v. Morales.54 Therein, Morales was elected mayor of Mabalacat,
Pampanga for the following consecutive terms: 1995-1998, 1998-2001 and 2001-2004. In relation to the 2004
elections, Morales again ran as mayor of the same town, emerged as garnering the majority votes and was
proclaimed elective mayor for term commencing July 1, 2004 to June 30, 2007. A petition for quo warranto
was later filed against Morales predicated on the ground that he is ineligible to run for a "fourth" term, having
served as mayor for three consecutive terms. In his answer, Morales averred that his supposed 1998-2001
term cannot be considered against him, for, although he was proclaimed by the Mabalacat board of
canvassers as elected mayor vis-à-vis the 1998 elections and discharged the duties of mayor until June 30,
2001, his proclamation was later nullified by the RTC of Angeles City and his closest rival, Anthony Dee,
proclaimed the duly elected mayor. Pursuing his point, Morales parlayed the idea that he only served as a
mere caretaker.
The Court found Morales’ posture untenable and held that the case of Morales presents a factual milieu
similar with Ong, not with Lonzanida. For ease of reference, the proclamation of Francis Ong, in Ong, was
nullified, but after he, like Morales, had served the three-year term from the start to the end of the term.
Hence, the Court concluded that Morales exceeded the three-term limit rule, to wit:
Here, respondent Morales was elected for the term July 1, 1998 to June 30, 2001. He assumed the position.
He served as mayor until June 30, 2001. He was mayor for the entire period notwithstanding the Decision of
the RTC in the electoral protest case filed by petitioner Dee ousting him (respondent) as mayor. To reiterate,
as held in Ong v. Alegre, such circumstance does not constitute an interruption in serving the full term.
xxxx
Respondent Morales is now serving his fourth term. He has been mayor of Mabalacat continuously without
any break since July 1, 1995. In just over a month, by June 30, 2007, he will have been mayor of Mabalacat
for twelve (12) continuous years.55 (Emphasis supplied.)
The Court ruled in Rivera that the fact of being belatedly ousted, i.e., after the expiry of the term, cannot
constitute an interruption in Morales’ service of the full term; neither can Morales, as he argued, be
considered merely a "caretaker of the office" or a mere "de facto officer" for purposes of applying the threeterm limit rule.
In a related 2009 case of Dizon v. Commission on Elections,56 the Court would again find the same Mayor
Morales as respondent in a disqualification proceeding when he ran again as a mayoralty candidate during
the 2007 elections for a term ending June 30, 2010. Having been unseated from his post by virtue of this
Court’s ruling in Rivera, Morales would argue this time around that the three-term limit rule was no longer
applicable as to his 2007 mayoralty bid. This time, the Court ruled in his favor, holding that for purposes of the
2007 elections, the three-term limit rule was no longer a disqualifying factor as against Morales. The Court
wrote:
Our ruling in the Rivera case served as Morales’ involuntary severance from office with respect to the 20042007 term. Involuntary severance from office for any length of time short of the full term provided by law
amounts to an interruption of continuity of service. Our decision in the Rivera case was promulgated on 9 May
2007 and was effective immediately. The next day, Morales notified the vice mayor’s office of our decision.
The vice mayor assumed the office of the mayor from 17 May 2007 up to 30 June 2007. The assumption by
the vice mayor of the office of the mayor, no matter how short it may seem to Dizon, interrupted Morales’
continuity of service. Thus, Morales did not hold office for the full term of 1 July 2004 to 30 June
2007.57 (Emphasis supplied)
To summarize, hereunder are the prevailing jurisprudence on issues affecting consecutiveness of terms
and/or involuntary interruption, viz:
1. When a permanent vacancy occurs in an elective position and the official merely assumed the
position pursuant to the rules on succession under the LGC, then his service for the unexpired portion
of the term of the replaced official cannot be treated as one full term as contemplated under the subject
constitutional and statutory provision that service cannot be counted in the application of any term limit
(Borja, Jr.). If the official runs again for the same position he held prior to his assumption of the higher
office, then his succession to said position is by operation of law and is considered an involuntary
severance or interruption (Montebon).
2. An elective official, who has served for three consecutive terms and who did not seek the elective
position for what could be his fourth term, but later won in a recall election, had an interruption in the
continuity of the official’s service. For, he had become in the interim, i.e., from the end of the 3rd term
up to the recall election, a private citizen (Adormeo and Socrates).
3. The abolition of an elective local office due to the conversion of a municipality to a city does not, by
itself, work to interrupt the incumbent official’s continuity of service (Latasa).
4. Preventive suspension is not a term-interrupting event as the elective officer’s continued stay and
entitlement to the office remain unaffected during the period of suspension, although he is barred from
exercising the functions of his office during this period (Aldovino, Jr.).
5. When a candidate is proclaimed as winner for an elective position and assumes office, his term is
interrupted when he loses in an election protest and is ousted from office, thus disenabling him from
serving what would otherwise be the unexpired portion of his term of office had the protest been
dismissed (Lonzanida and Dizon). The break or interruption need not be for a full term of three years or
for the major part of the 3-year term; an interruption for any length of time, provided the cause is
involuntary, is sufficient to break the continuity of service (Socrates, citing Lonzanida).
6. When an official is defeated in an election protest and said decision becomes final after said official
had served the full term for said office, then his loss in the election contest does not constitute an
interruption since he has managed to serve the term from start to finish. His full service, despite the
defeat, should be counted in the application of term limits because the nullification of his proclamation
came after the expiration of the term (Ong and Rivera).
The Case of Abundo
Abundo argues that the RTC and the COMELEC erred in uniformly ruling that he had already served three
consecutive terms and is, thus, barred by the constitutional three-term limit rule to run for the current 20102013 term. In gist, Abundo arguments run thusly:
1. Aldovino, Jr. is not on all fours with the present case as the former dealt with preventive suspension
which does not interrupt the continuity of service of a term;
2. Aldovino, Jr. recognizes that the term of an elected official can be interrupted so as to remove him
from the reach of the constitutional three-term limitation;
3. The COMELEC misinterpreted the meaning of "term" in Aldovino, Jr. by its reliance on a mere
portion of the Decision and not on the unified logic in the disquisition;
4. Of appropriate governance in this case is the holding in Lonzanida58 and Rivera III v. Commission
on Elections.59
5. The COMELEC missed the point when it ruled that there was no interruption in the service of
Abundo since what he considered as an "interruption" of his 2004-2007 term occurred before his term
started; and
6. To rule that the term of the protestee (Torres) whose proclamation was adjudged invalid was
interrupted while that of the protestant (Abundo) who was eventually proclaimed winner was not so
interrupted is at once absurd as it is illogical.
Both respondents Vega and the COMELEC counter that the ratio decidendi of Aldovino, Jr. finds application in
the instant case. The COMELEC ruled that Abundo did not lose title to the office as his victory in the protest
case confirmed his entitlement to said office and he was only unable to temporarily discharge the functions of
the office during the pendency of the election protest.
We note that this present case of Abundo deals with the effects of an election protest, for which the rulings in
Lonzanida, Ong, Rivera and Dizon appear to be more attuned than the case of Aldovino Jr., the interrupting
effects of the imposition of a preventive suspension being the very lis mota in the Aldovino, Jr. case. But just
the same, We find that Abundo’s case presents a different factual backdrop.
Unlike in the abovementioned election protest cases wherein the individuals subject of disqualification were
candidates who lost in the election protest and each declared loser during the elections, Abundo was the
winner during the election protest and was declared the rightful holder of the mayoralty post. Unlike Mayor
Lonzanida and Mayor Morales, who were both unseated toward the end of their respective terms, Abundo
was the protestant who ousted his opponent and had assumed the remainder of the term.
Notwithstanding, We still find this Court’s pronouncements in the past as instructive, and consider several
doctrines established from the 1998 case of Borja, Jr. up to the most recent case of Aldovino Jr. in 2009, as
potent aids in arriving at this Court’s conclusion.
The intention behind the three-term limit rule was not only to abrogate the "monopolization of political power"
and prevent elected officials from breeding "proprietary interest in their position" 60 but also to "enhance the
people’s freedom of choice."61 In the words of Justice Vicente V. Mendoza, "while people should be protected
from the evils that a monopoly of power may bring about, care should be taken that their freedom of choice is
not unduly curtailed."62
In the present case, the Court finds Abundo’s case meritorious and declares that the two-year period during
which his opponent, Torres, was serving as mayor should be considered as an interruption, which effectively
removed Abundo’s case from the ambit of the three-term limit rule.
It bears to stress at this juncture that Abundo, for the 2004 election for the term starting July 1, 2004 to June
30, 2007, was the duly elected mayor. Otherwise how explain his victory in his election protest against Torres
and his consequent proclamation as duly elected mayor. Accordingly, the first requisite for the application of
the disqualification rule based on the three-term limit that the official has been elected is satisfied.
This thus brings us to the second requisite of whether or not Abundo had served for "three consecutive
terms," as the phrase is juridically understood, as mayor of Viga, Catanduanes immediately before the 2010
national and local elections. Subsumed to this issue is of course the question of whether or not there was an
effective involuntary interruption during the three three-year periods, resulting in the disruption of the
continuity of Abundo’s mayoralty.
The facts of the case clearly point to an involuntary interruption during the July 2004-June 2007 term.
There can be no quibbling that, during the term 2004-2007, and with the enforcement of the decision of the
election protest in his favor, Abundo assumed the mayoralty post only on May 9, 2006 and served the term
until June 30, 2007 or for a period of a little over one year and one month. Consequently, unlike Mayor Ong in
Ong and Mayor Morales in Rivera, it cannot be said that Mayor Abundo was able to serve fully the entire
2004-2007 term to which he was otherwise entitled.
A "term," as defined in Appari v. Court of Appeals,63 means, in a legal sense, "a fixed and definite period of
time which the law describes that an officer may hold an office."64 It also means the "time during which the
officer may claim to hold office as a matter of right, and fixes the interval after which the several incumbents
shall succeed one another."65 It is the period of time during which a duly elected official has title to and can
serve the functions of an elective office. From paragraph (a) of Sec. 43, RA 7160,66 the term for local elected
officials is three (3) years starting from noon of June 30 of the first year of said term.
In the present case, during the period of one year and ten months, or from June 30, 2004 until May 8, 2006,
Abundo cannot plausibly claim, even if he wanted to, that he could hold office of the mayor as a matter of
right. Neither can he assert title to the same nor serve the functions of the said elective office. The reason is
simple: during that period, title to hold such office and the corresponding right to assume the functions thereof
still belonged to his opponent, as proclaimed election winner. Accordingly, Abundo actually held the office and
exercised the functions as mayor only upon his declaration, following the resolution of the protest, as duly
elected candidate in the May 2004 elections or for only a little over one year and one month. Consequently,
since the legally contemplated full term for local elected officials is three (3) years, it cannot be said that
Abundo fully served the term 2004-2007. The reality on the ground is that Abundo actually served less.
Needless to stress, the almost two-year period during which Abundo’s opponent actually served as Mayor is
and ought to be considered an involuntary interruption of Abundo’s continuity of service. An involuntary
interrupted term, cannot, in the context of the disqualification rule, be considered as one term for purposes of
counting the three-term threshold.67
The notion of full service of three consecutive terms is related to the concepts of interruption of service and
voluntary renunciation of service. The word interruption means temporary cessation, intermission or
suspension.68 To interrupt is to obstruct, thwart or prevent.69 When the Constitution and the LGC of 1991
speak of interruption, the reference is to the obstruction to the continuance of the service by the concerned
elected official by effectively cutting short the service of a term or giving a hiatus in the occupation of the
elective office. On the other hand, the word "renunciation" connotes the idea of waiver or abandonment of a
known right. To renounce is to give up, abandon, decline or resign.70 Voluntary renunciation of the office by
an elective local official would thus mean to give up or abandon the title to the office and to cut short the
service of the term the concerned elected official is entitled to.
In its assailed Resolution, the COMELEC en banc, applying Aldovino, Jr.,71 held:
It must be stressed that involuntary interruption of service which jurisprudence deems an exception to the
three-term limit rule, implies that the service of the term has begun before it was interrupted. Here, the
respondent did not lose title to the office. As the assailed Resolution states:
In the case at bar, respondent cannot be said to have lost his title to the office. On the contrary, he actively
sought entitlement to the office when he lodged the election protest case. And respondent-appellant’s victory
in the said case is a final confirmation that he was validly elected for the mayoralty post of Viga, Catanduanes
in 2004-2007. At most, respondent-appellant was only unable to temporarily discharge the functions of the
office to which he was validly elected during the pendency of the election protest, but he never lost title to the
said office.72 (Emphasis added.)
The COMELEC’s Second Division, on the other hand, pronounced that the actual length of service by the
public official in a given term is immaterial by reckoning said service for the term in the application of the
three-term limit rule, thus:
As emphasized in the case of Aldovino, "this formulation—no more than three consecutive terms—is a clear
command suggesting the existence of an inflexible rule." Therefore we cannot subscribe to the argument that
since respondent Abundo served only a portion of the term, his 2004-2007 "term" should not be considered
for purposes of the application of the three term limit rule. When the framers of the Constitution drafted and
incorporated the three term limit rule, it is clear that reference is to the term, not the actual length of the
service the public official may render. Therefore, one’s actual service of term no matter how long or how short
is immaterial.73
In fine, the COMELEC ruled against Abundo on the theory that the length of the actual service of the term is
immaterial in his case as he was only temporarily unable to discharge his functions as mayor.
The COMELEC’s case disposition and its heavy reliance on Aldovino, Jr. do not commend themselves for
concurrence. The Court cannot simply find its way clear to understand the poll body’s determination that
Abundo was only temporarily unable to discharge his functions as mayor during the pendency of the election
protest.
As previously stated, the declaration of being the winner in an election protest grants the local elected official
the right to serve the unexpired portion of the term. Verily, while he was declared winner in the protest for the
mayoralty seat for the 2004-2007 term, Abundo’s full term has been substantially reduced by the actual
service rendered by his opponent (Torres). Hence, there was actual involuntary interruption in the term of
Abundo and he cannot be considered to have served the full 2004-2007 term.
This is what happened in the instant case. It cannot be overemphasized that pending the favorable resolution
of his election protest, Abundo was relegated to being an ordinary constituent since his opponent, as
presumptive victor in the 2004 elections, was occupying the mayoralty seat. In other words, for almost two
years or from July 1, 2004—the start of the term—until May 9, 2006 or during which his opponent actually
assumed the mayoralty office, Abundo was a private citizen warming his heels while awaiting the outcome of
his protest. Hence, even if declared later as having the right to serve the elective position from July 1, 2004,
such declaration would not erase the fact that prior to the finality of the election protest, Abundo did not serve
in the mayor’s office and, in fact, had no legal right to said position.
Aldovino Jr. cannot possibly lend support to respondent’s cause of action, or to COMELEC’s resolution
against Abundo. In Aldovino Jr., the Court succinctly defines what temporary inability or disqualification to
exercise the functions of an elective office means, thus:
On the other hand, temporary inability or disqualification to exercise the functions of an elective post, even if
involuntary, should not be considered an effective interruption of a term because it does not involve the loss of
title to office or at least an effective break from holding office; the office holder, while retaining title, is simply
barred from exercising the functions of his office for a reason provided by law.74
We rule that the above pronouncement on preventive suspension does not apply to the instant case. Verily, it
is erroneous to say that Abundo merely was temporarily unable or disqualified to exercise the functions of an
elective post. For one, during the intervening period of almost two years, reckoned from the start of the 20042007 term, Abundo cannot be said to have retained title to the mayoralty office as he was at that time not the
duly proclaimed winner who would have the legal right to assume and serve such elective office. For another,
not having been declared winner yet, Abundo cannot be said to have lost title to the office since one cannot
plausibly lose a title which, in the first place, he did not have. Thus, for all intents and purposes, even if the
belated declaration in the election protest accords him title to the elective office from the start of the term,
Abundo was not entitled to the elective office until the election protest was finally resolved in his favor.1âwphi1
Consequently, there was a hiatus of almost two years, consisting of a break and effective interruption of his
service, until he assumed the office and served barely over a year of the remaining term. At this juncture, We
observe the apparent similarities of Mayor Abundo’s case with the cases of Mayor Talaga in Adormeo and
Mayor Hagedorn in Socrates as Mayors Talaga and Hagedorn were not proclaimed winners since they were
non-candidates in the regularelections. They were proclaimed winners during the recall elections and clearly
were not able to fully serve the terms of the deposed incumbent officials. Similar to their cases where the
Court deemed their terms as involuntarily interrupted, Abundo also became or was a private citizen during the
period over which his opponent was serving as mayor. If in Lonzanida, the Court ruled that there was
interruption in Lonzanida’s service because of his subsequent defeat in the election protest, then with more
reason, Abundo’s term for 2004-2007 should be declared interrupted since he was not proclaimed winner
after the 2004 elections and was able to assume the office and serve only for a little more than a year after
winning the protest.
As aptly stated in Latasa, to be considered as interruption of service, the "law contemplates a rest period
during which the local elective official steps down from office and ceases to exercise power or authority over
the inhabitants of the territorial jurisdiction of a particular local government unit."75 Applying the said principle
in the present case, there is no question that during the pendency of the election protest, Abundo ceased from
exercising power or authority over the good people of Viga, Catanduanes.
Consequently, the period during which Abundo was not serving as mayor should be considered as a rest
period or break in his service because, as earlier stated, prior to the judgment in the election protest, it was
Abundo’s opponent, Torres, who was exercising such powers by virtue of the still then valid proclamation.
As a final note, We reiterate that Abundo’s case differs from other cases involving the effects of an election
protest because while Abundo was, in the final reckoning, the winning candidate, he was the one deprived of
his right and opportunity to serve his constituents. To a certain extent, Abundo was a victim of an imperfect
election system. While admittedly the Court does not possess the mandate to remedy such imperfections, the
Constitution has clothed it with enough authority to establish a fortress against the injustices it may bring.
In this regard, We find that a contrary ruling would work damage and cause grave injustice to Abundo––an
elected official who was belatedly declared as the winner and assumed office for only a short period of the
term. If in the cases of Lonzanida and Dizon, this Court ruled in favor of a losing candidate––or the person
who was adjudged not legally entitled to hold the contested public office but held it anyway––We find more
reason to rule in favor of a winning candidate-protestant who, by popular vote, deserves title to the public
office but whose opportunity to hold the same was halted by an invalid proclamation.
Also, more than the injustice that may be committed against Abundo is the injustice that may likewise be
committed against the people of Viga, Catanduanes by depriving them of their right to choose their leaders.
Like the framers of the Constitution, We bear in mind that We "cannot arrogate unto ourselves the right to
decide what the people want"76 and hence, should, as much as possible, "allow the people to exercise their
own sense of proportion and rely on their own strength to curtail the power when it overreaches itself." 77 For
democracy draws strength from the choice the people make which is the same choice We are likewise bound
to protect.
WHEREFORE, the instant petition is PARTLY GRANTED. Accordingly, the assailed February 8, 2012
Resolution of the Commission on Elections Second Division and May 10, 2012 Resolution of the Commission
on Elections en banc in EAC (AE) No. A-25-2010 and the Decision of the Regional Trial Court (RTC) of Virac,
Catanduanes, Branch 43, dated August 9, 2010, in Election Case No. 55, are hereby REVERSED and SET
ASIDE.
Petitioner Abelardo Abundo, Sr. is DECLARED ELIGIBLE for the position of Mayor of Viga, Catanduanes to
which he was duly elected in the May 2010 elections and is accordingly ordered IMMEDIATELY REINSTATED
to said position. Withal, Emeterio M. Tarin and Cesar O. Cervantes are ordered to immediately vacate the
positions of Mayor and Vice-Mayor of Viga, Catanduanes, respectively, and shall revert to their original
positions of Vice-Mayor and First Councilor, respectively, upon receipt of this Decision.
The TRO issued by the Court on July 3, 2012 is hereby LIFTED.
This Decision is immediately executory.
SO ORDERED.
G.R. No. 132875-76
February 3, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROMEO G. JALOSJOS, accused-appellant.
RESOLUTION
YNARES-SANTIAGO, J.:
The accused-appellant, Romeo F. Jaloslos is a full-pledged member of Congress who is now confined at the
national penitentiary while his conviction for statutory rape on two counts and acts of lasciviousness on six
counts1 is pending appeal. The accused-appellant filed this motion asking that he be allowed to fully
discharge the duties of a Congressman, including attendance at legislative sessions and committee meetings
despite his having been convicted in the first instance of a non-bailable offense.
The issue raised is one of the first impression.
Does membership in Congress exempt an accused from statutes and rules which apply to validly incarcerated
persons in general? In answering the query, we are called upon to balance relevant and conflicting factors in
the judicial interpretation of legislative privilege in the context of penal law.
The accused-appellant's "Motion To Be Allowed To Discharge Mandate As Member of House of
Representatives" was filed on the grounds that —
1. Accused-appellant's reelection being an expression of popular will cannot be rendered inutile by any
ruling, giving priority to any right or interest — not even the police power of the State.
2. To deprive the electorate of their elected representative amounts to taxation without representation.
3. To bar accused-appellant from performing his duties amounts to his suspension/removal and mocks
the renewed mandates entrusted to him by the people.
4. The electorate of the First District of Zamboanga del Norte wants their voice to be heard.
5. A precedent-setting U.S. ruling allowed a detained lawmaker to attend sessions of the U.S.
Congress.
6. The House treats accused-appellant as a bona fide member thereof and urges a co-equal branch of
government to respect its mandate.
7. The concept of temporary detention does not necessarily curtail the duty of accused-appellant to
discharge his mandate.
8. Accused-appellant has always complied with the conditions/restrictions when allowed to leave jail.
The primary argument of the movant is the "mandate of sovereign will." He states that the sovereign
electorate of the First District of Zamboanga del Norte chose him as their representative in Congress. Having
been re-elected by his constituents, he has the duty to perform the functions of a Congressman. He calls this
a covenant with his constituents made possible by the intervention of the State. He adds that it cannot be
defeated by insuperable procedural restraints arising from pending criminal cases.
True, election is the expression of the sovereign power of the people. In the exercise of suffrage, a free
people expects to achieve the continuity of government and the perpetuation of its benefits. However, inspite
of its importance, the privileges and rights arising from having been elected may be enlarged or restricted by
law. Our first task is to ascertain the applicable law.
We start with the incontestable proposition that all top officials of Government-executive, legislative, and
judicial are subject to the majesty of law. There is an unfortunate misimpression in the public mind that
election or appointment to high government office, by itself, frees the official from the common restraints of
general law. Privilege has to be granted by law, not inferred from the duties of a position. In fact, the higher
the rank, the greater is the requirement of obedience rather than exemption.
The immunity from arrest or detention of Senators and members of the House of Representatives, the latter
customarily addressed as Congressmen, arises from a provision of the Constitution. The history of the
provision shows that privilege has always been granted in a restrictive sense. The provision granting an
exemption as a special privilege cannot be extended beyond the ordinary meaning of its terms. It may not be
extended by intendment, implication or equitable considerations.
The 1935 Constitution provided in its Article VI on the Legislative Department.
Sec 15. The Senators and Members of the House of Representatives shall in all cases except treason,
felony, and breach of the peace be privileged from arrest during their attendance at the sessions of
Congress, and in going to and returning from the same, . . .
Because of the broad coverage of felony and breach of the peace, the exemption applied only to civil arrests.
A congressman like the accused-appellant, convicted under Title Eleven of the Revised Penal Code could not
claim parliamentary immunity from arrest. He was subject to the same general laws governing all persons still
to be tried or whose convictions were pending appeal.
The 1973 Constitution broadened the privilege of immunity as follows:
Art. VIII, Sec. 9. A Member of the Batasang Pambansa shall, in all offenses punishable by not more
than six years imprisonment, be privileged from arrest during his attendance at its sessions and in
going to and returning from the same.
For offenses punishable by more than six years imprisonment, there was no immunity from arrest. The
restrictive interpretation of immunity and intent to confine it within carefully defined parameters is illustrated by
the concluding portion of the provision, to wit:
. . . but the Batasang Pambansa shall surrender the member involved the custody of the law within
twenty four hours after its adjournment for a recess or for its next session, otherwise such privilege
shall cease upon its failure to do so.
The present Constitution adheres to the same restrictive rule minus the obligation of Congress to surrender
the subject Congressman to the custody of the law. The requirement that he should be attending sessions or
committee meetings has also been removed. For relatively minor offenses, it is enough that Congress is in
session.
The accused-appellant argues that a member of Congress' function to attend sessions is underscored by
Section 16 (2), Article VI of the Constitution which states that —
(2) A majority of each House shall constitute a quorum to do business, but a smaller number may
adjourn from day to day and may compel the attendance of absent Members in such manner, and
under such penalties, as such House may provide.
However, the accused-appellant has not given any reason why he should be exempted from the operation of
Section 11, Article VI of the Constitution. The members of Congress cannot compel absent members to attend
sessions if the reason for the absence is a legitimate one. The confinement of a Congressman charged with a
crime punishable by imprisonment of more than six months is not merely authorized by law, it has
constitutional foundations.
Accused-appellant's reliance on the ruling in Aguinaldo v. Santos2, which states, inter alia, that —
The Court should never remove a public officer for acts done prior to his present term of office. To do
otherwise would be to deprive the people of their right to elect their officers. When a people have
elected a man to office, it must be assumed that they did this with the knowledge of his life and
character, and that they disregarded or forgave his fault or misconduct, if he had been guilty of any. It is
not for the Court, by reason of such fault or misconduct, to practically overrule the will of the people.
will not extricate him from his predicament. It can be readily seen in the above-quoted ruling that the
Aguinaldo case involves the administrative removal of a public officer for acts done prior to his present term of
office. It does not apply to imprisonment arising from the enforcement of criminal law. Moreover, in the same
way that preventive suspension is not removal, confinement pending appeal is not removal. He remains a
congressman unless expelled by Congress or, otherwise, disqualified.
One rationale behind confinement, whether pending appeal or after final conviction, is public self-defense.
Society must protect itself. It also serves as an example and warning to others.
A person charged with crime is taken into custody for purposes of the administration of justice. As stated
in United States v. Gustilo,3 it is the injury to the public which State action in criminal law seeks to redress. It
is not the injury to the complainant. After conviction in the Regional Trial Court, the accused may be denied
bail and thus subjected to incarceration if there is risk of his absconding.4
The accused-appellant states that the plea of the electorate which voted him into office cannot be supplanted
by unfounded fears that he might escape eventual punishment if permitted to perform congressional duties
outside his regular place of confinement.
It will be recalled that when a warrant for accused-appellant's arrest was issued, he fled and evaded capture
despite a call from his colleagues in the House of Representatives for him to attend the sessions and to
surrender voluntarily to the authorities. Ironically, it is now the same body whose call he initially spurned which
accused-appellant is invoking to justify his present motion. This can not be countenanced because, to
reiterate, aside from its being contrary to well-defined Constitutional restrains, it would be a mockery of the
aims of the State's penal system.
Accused-appellant argues that on several occasions the Regional Trial Court of Makati granted several
motions to temporarily leave his cell at the Makati City Jail, for official or medical reasons, to wit:
a) to attend hearings of the House Committee on Ethics held at the Batasan Complex, Quezon City, on
the issue of whether to expel/suspend him from the House of Representatives;
b) to undergo dental examination and treatment at the clinic of his dentist in Makati City;
c) to undergo a thorough medical check-up at the Makati Medical Center, Makati City;
d) to register as a voter at his hometown in Dapitan City. In this case, accused-appellant commuted by
chartered plane and private vehicle.
He also calls attention to various instances, after his transfer at the New Bilibid Prison in Muntinlupa City,
when he was likewise allowed/permitted to leave the prison premises, to wit.
a) to join "living-out" prisoners on "work-volunteer program" for the purpose of 1) establishing a
mahogany seedling bank and 2) planting mahogany trees, at the NBP reservation. For this purpose, he
was assigned one guard and allowed to use his own vehicle and driver in going to and from the project
area and his place of confinement.
b) to continue with his dental treatment at the clinic of his dentist in Makati City.
c) to be confined at the Makati Medical Center in Makati City for his heart condition.
There is no showing that the above privileges are peculiar to him or to a member of Congress. Emergency or
compelling temporary leaves from imprisonment are allowed to all prisoners, at the discretion of the
authorities or upon court orders.
What the accused-appellant seeks is not of an emergency nature. Allowing accused-appellant to attend
congressional sessions and committee meeting for five (5) days or more in a week will virtually make him free
man with all the privilege appurtenant to his position. Such an aberrant situation not only elevates accusedappellant's status to that of a special class, it also would be a mockery of the purposes of the correction
system. Of particular relevance in this regard are the following observations of the Court in Martinez v.
Morfe:5
The above conclusion reached by this Court is bolstered and fortified by policy considerations. There
is, to be sure, a full recognition of the necessity to have members of Congress, and likewise delegates
to the Constitutional Convention, entitled to the utmost freedom to enable them to discharge their vital
responsibilities, bowing to no other force except the dictates of their conscience of their conscience.
Necessarily the utmost latitude in free speech should be accorded them. When it comes to freedom
from arrest, however, it would amount to the creation of a privileged class, without justification in
reason, if notwithstanding their liability for a criminal offense, they would be considered immune during
their attendance in Congress and in going to and returning from the same. There is likely to be no
dissent from the proposition that a legislator or a delegate can perform his functions efficiently and well,
without the need for any transgression of the criminal law. Should such an unfortunate event come to
pass, he is to be treated like any other citizen considering that there is a strong public interest in seeing
to it that crime should not go unpunished. To the fear that may be expressed that the prosecuting arm
of the government might unjustly go after legislators belonging to the minority, it suffices to answer that
precisely all the safeguards thrown around an accused by the Constitution, solicitous of the rights of an
individual, would constitute an obstacle to such an attempt at abuse of power. The presumption of
course is that the judiciary would remain independent. It is trite to say that in each and every
manifestation of judicial endeavor, such a virtue is of the essence.
The accused-appellant avers that his constituents in the First District of Zamboanga del Norte want their
voices to be heard and that since he is treated as bona fide member of the House of Representatives, the
latter urges a co-equal branch of government to respect his mandate. He also claims that the concept of
temporary detention does not necessarily curtail his duty to discharge his mandate and that he has always
complied with the conditions/restrictions when he is allowed to leave jail.
We remain unpersuaded.1âwphi1.nêt
No less than accused-appellant himself admits that like any other member of the House of Representatives
"[h]e is provided with a congressional office situated at Room N-214, North Wing Building, House of
Representatives Complex, Batasan Hills, Quezon City, manned by a full complement of staff paid for by
Congress. Through [an] inter-department coordination, he is also provided with an office at the Administration
Building, New Bilibid Prison, Muntinlupa City, where he attends to his constituents." Accused-appellant further
admits that while under detention, he has filed several bills and resolutions. It also appears that he has been
receiving his salaries and other monetary benefits. Succinctly stated, accused-appellant has been discharging
his mandate as a member of the House of Representative consistent with the restraints upon one who is
presently under detention. Being a detainee, accused-appellant should not even have been allowed by the
prison authorities at the National Penitentiary to perform these acts.
When the voters of his district elected the accused-appellant to Congress, they did so with full awareness of
the limitations on his freedom of action. They did so with the knowledge that he could achieve only such
legislative results which he could accomplish within the confines of prison. To give a more drastic illustration, if
voters elect a person with full knowledge that he suffering from a terminal illness, they do so knowing that at
any time, he may no longer serve his full term in office.
In the ultimate analysis, the issue before us boils down to a question of constitutional equal protection.
The Constitution guarantees: ". . . nor shall any person be denied the equal protection of laws."6 This simply
means that all persons similarly situated shall be treated alike both in rights enjoyed and responsibilities
imposed.7 The organs of government may not show any undue favoritism or hostility to any person. Neither
partiality not prejudice shall be displayed.
Does being an elective official result in a substantial distinction that allows different treatment? Is being a
Congressman a substantial differentiation which removes the accused-appellant as a prisoner from the same
class as all persons validly confined under law?
The performance of legitimate and even essential duties by public officers has never been an excuse to free a
person validly in prison. The duties imposed by the "mandate of the people" are multifarious. The accusedappellant asserts that the duty to legislative ranks highest in the hierarchy of government. The accusedappellant is only one of 250 members of the House of Representatives, not to mention the 24 members of the
Senate, charged with the duties of legislation. Congress continues to function well in the physical absence of
one or a few of its members. Depending on the exigency of Government that has to be addressed, the
President or the Supreme Court can also be deemed the highest for that particular duty. The importance of a
function depends on the need to its exercise. The duty of a mother to nurse her infant is most compelling
under the law of nature. A doctor with unique skills has the duty to save the lives of those with a particular
affliction. An elective governor has to serve provincial constituents. A police officer must maintain peace and
order. Never has the call of a particular duty lifted a prisoner into a different classification from those others
who are validly restrained by law.
A strict scrutiny of classifications is essential lest wittingly or otherwise, insidious discriminations are made in
favor of or against groups or types of individuals.8
The Court cannot validate badges of inequality. The necessities imposed by public welfare may justify
exercise of government authority to regulate even if thereby certain groups may plausibly assert that their
interests are disregarded.9
We, therefore, find that election to the position of Congressman is not a reasonable classification in criminal
law enforcement. The functions and duties of the office are not substantial distinctions which lift him from the
class of prisoners interrupted in their freedom and restricted in liberty of movement. Lawful arrest and
confinement are germane to the purposes of the law and apply to all those belonging to the same class.10
Imprisonment is the restraint of a man's personal liberty; coercion exercised upon a person to prevent the free
exercise
of
his
power
of
locomotion.11
More explicitly, "imprisonment" in its general sense, is the restraint of one's liberty. As a punishment, it is
restraint by judgment of a court or lawful tribunal, and is personal to the accused.12 The term refers to the
restraint on the personal liberty of another; any prevention of his movements from place to place, or of his free
action according to his own pleasure and will.13 Imprisonment is the detention of another against his will
depriving him of his power of locomotion14 and it "[is] something more than mere loss of freedom. It includes
the notion of restraint within limits defined by wall or any exterior barrier."15
It can be seen from the foregoing that incarceration, by its nature, changes an individual's status in
society.16 Prison officials have the difficult and often thankless job of preserving the security in a potentially
explosive setting, as well as of attempting to provide rehabilitation that prepares inmates for re-entry into the
social mainstream. Necessarily, both these demands require the curtailment and elimination of certain
rights.17
Premises considered, we are constrained to rule against the accused-appellant's claim that re-election to
public office gives priority to any other right or interest, including the police power of the State.
WHEREFORE, the instant motion is hereby DENIED.
SO ORDERED.
G.R. No. L-15905
August 3, 1966
NICANOR T. JIMENEZ, ET AL., plaintiffs and appellants,
vs.
BARTOLOME CABANGBANG, defendant and appellee.
Liwag and Vivo and S. Artiaga, Jr. for plaintiffs and appellants.
Jose S. Zafra and Associates and V. M. Fortich Zerda for defendant and appellee.
CONCEPCION, C.J.:
This is an ordinary civil action, originally instituted in the Court of First Instance of Rizal, for the recovery, by
plaintiffs Nicanor T. Jimenez, Carlos J. Albert and Jose L. Lukban, of several sums of money, by way of
damages for the publication of an allegedly libelous letter of defendant Bartolome Cabangbang. Upon being
summoned, the latter moved to dismiss the complaint upon the ground that the letter in question is not
libelous, and that, even if were, said letter is a privileged communication. This motion having been granted by
the lower court, plaintiffs interposed the present appeal from the corresponding order of dismissal.
The issues before us are: (1) whether the publication in question is a privileged communication; and, if not, (2)
whether it is libelous or not.
The first issue stems from the fact that, at the time of said publication, defendant was a member of the House
of Representatives and Chairman of its Committee on National Defense, and that pursuant to the
Constitution:
The Senators and Members of the House of Representatives shall in all cases except treason, felony,
and breach of the peace, be privileged from arrest during their attendance at the sessions of the
Congress, and in going to and returning from the same; and for any speech or debate therein, they
shall not be questioned in any other place. (Article VI, Section 15.)
The determination of the first issue depends on whether or not the aforementioned publication falls within the
purview of the phrase "speech or debate therein" — that is to say, in Congress — used in this provision.
Said expression refers to utterances made by Congressmen in the performance of their official functions, such
as speeches delivered, statements made, or votes cast in the halls of Congress, while the same is in session,
as well as bills introduced in Congress, whether the same is in session or not, and other acts performed by
Congressmen, either in Congress or outside the premises housing its offices, in the official discharge of their
duties as members of Congress and of Congressional Committees duly authorized to perform its functions as
such, at the time of the performance of the acts in question.1
The publication involved in this case does not belong to this category. According to the complaint herein, it
was an open letter to the President of the Philippines, dated November 14, 1958, when Congress presumably
was not in session, and defendant caused said letter to be published in several newspapers of general
circulation in the Philippines, on or about said date. It is obvious that, in thus causing the communication to be
so published, he was not performing his official duty, either as a member of Congress or as officer or any
Committee thereof. Hence, contrary to the finding made by His Honor, the trial Judge, said communication is
not absolutely privileged.
Was it libelous, insofar as the plaintiffs herein are concerned? Addressed to the President, the communication
began with the following paragraph:
In the light of the recent developments which however unfortunate had nevertheless involved the
Armed Forces of the Philippines and the unfair attacks against the duly elected members of Congress
of engaging in intriguing and rumor-mongering, allow me, Your Excellency, to address this open letter
to focus public attention to certain vital information which, under the present circumstances, I feel it my
solemn duty to our people to expose.1äwphï1.ñët
It has come to my attention that there have been allegedly three operational plans under serious study
by some ambitious AFP officers, with the aid of some civilian political strategists.
Then, it describes the "allegedly three (3) operational plans" referred to in the second paragraph. The first
plan is said to be "an insidious plan or a massive political build-up" of then Secretary of National Defense,
Jesus Vargas, by propagandizing and glamorizing him in such a way as to "be prepared to become a
candidate for President in 1961". To this end, the "planners" are said to "have adopted the sales-talk that
Secretary Vargas is 'Communists' Public Enemy No. 1 in the Philippines." Moreover, the P4,000,000.00
"intelligence and psychological warfare funds" of the Department of National Defense, and the "Peace and
Amelioration Fund" — the letter says — are "available to adequately finance a political campaign". It further
adds:
It is reported that the "Planners" have under their control the following: (1) Col. Nicanor Jimenez of
NICA, (2) Lt. Col. Jose Lukban of NBI, (3) Capt. Carlos Albert (PN) of G-2 AFP, (4) Col. Fidel Llamas of
MIS (5) Lt. Col. Jose Regala of the Psychological Warfare Office, DND, and (6) Major Jose Reyna of
the Public information Office, DND. To insure this control, the "Planners" purportedly sent Lt. Col. Job
Mayo, Chief of MIS to Europe to study and while Mayo was in Europe, he was relieved by Col. Fidel
Llamas. They also sent Lt. Col. Deogracias Caballero, Chief of Psychological Warfare Office, DND, to
USA to study and while Caballero was in USA, he was relieved by Lt. Col. Jose Regala. The "Planners"
wanted to relieve Lt. Col. Ramon Galvezon, Chief of CIS (PC) but failed. Hence, Galvezon is
considered a missing link in the intelligence network. It is, of course, possible that the offices
mentioned above are unwitting tools of the plan of which they may have absolutely no knowledge.
(Emphasis ours.)
Among the means said to be used to carry out the plan the letter lists, under the heading "other operational
technique the following:
(a) Continuous speaking engagements all over the Philippines for Secretary Vargas to talk on
"Communism" and Apologetics on civilian supremacy over the military;
(b) Articles in magazines, news releases, and hundreds of letters — "typed in two (2) typewriters only"
— to Editors of magazines and newspapers, extolling Secretary Vargas as the "hero of democracy in
1951, 1953, 1955 and 1957 elections";
(c) Radio announcements extolling Vargas and criticizing the administration;
(d) Virtual assumption by Vargas of the functions of the Chief of Staff and an attempt to pack key
positions in several branches of the Armed Forces with men belonging to his clique;
(e) Insidious propaganda and rumors spread in such a way as to give the impression that they reflect
the feeling of the people or the opposition parties, to undermine the administration.
Plan No. II is said to be a "coup d'etat", in connection with which the "planners" had gone no further than the
planning stage, although the plan "seems to be held in abeyance and subject to future developments".
Plan No. III is characterized as a modification of Plan No. I, by trying to assuage the President and the public
with a loyalty parade, in connection with which Gen. Arellano delivered a speech challenging the authority and
integrity of Congress, in an effort to rally the officers and men of the AFP behind him, and gain popular and
civilian support.
The letter in question recommended.: (1) that Secretary Vargas be asked to resign; (2) that the Armed Forces
be divorced absolutely from politics; (3) that the Secretary of National Defense be a civilian, not a professional
military man; (4) that no Congressman be appointed to said office; (5) that Gen. Arellano be asked to resign or
retire; (6) that the present chiefs of the various intelligence agencies in the Armed Forces including the chiefs
of the NICA, NBI, and other intelligence agencies mentioned elsewhere in the letter, be reassigned,
considering that "they were handpicked by Secretary Vargas and Gen. Arellano", and that, "most probably,
they belong to the Vargas-Arellano clique"; (7) that all military personnel now serving civilian offices be
returned to the AFP, except those holding positions by provision of law; (8) that the Regular Division of the
AFP stationed in Laur, Nueva Ecija, be dispersed by batallion strength to the various stand-by or training
divisions throughout the country; and (9) that Vargas and Arellano should disqualify themselves from holding
or undertaking an investigation of the planned coup d'etat".
We are satisfied that the letter in question is not sufficient to support plaintiffs' action for damages. Although
the letter says that plaintiffs are under the control of the unnamed persons therein alluded to as "planners",
and that, having been handpicked by Secretary Vargas and Gen. Arellano, plaintiffs "probably belong to the
Vargas-Arellano clique", it should be noted that defendant, likewise, added that "it is of course possible" that
plaintiffs "are unwitting tools of the plan of which they may have absolutely no knowledge". In other words, the
very document upon which plaintiffs' action is based explicitly indicates that they might be absolutely
unaware of the alleged operational plans, and that they may be merely unwitting tools of the planners. We do
not think that this statement is derogatory to the plaintiffs, to the point of entitling them to recover damages,
considering that they are officers of our Armed Forces, that as such they are by law, under the control of the
Secretary of National Defense and the Chief of Staff, and that the letter in question seems to suggest that the
group therein described as "planners" include these two (2) high ranking officers.
It is true that the complaint alleges that the open letter in question was written by the defendant, knowing that
it is false and with the intent to impeach plaintiffs' reputation, to expose them to public hatred, contempt,
dishonor and ridicule, and to alienate them from their associates, but these allegations are mere conclusions
which are inconsistent with the contents of said letter and can not prevail over the same, it being the very
basis of the complaint. Then too, when plaintiffs allege in their complaint that said communication is false,
they could not have possibly meant that they were aware of the alleged plan to stage a coup d'etat or that
they were knowingly tools of the "planners". Again, the aforementioned passage in the defendant's letter
clearly implies that plaintiffs were not among the "planners" of said coup d'etat, for, otherwise, they could not
be "tools", much less, unwittingly on their part, of said "planners".
Wherefore, the order appealed from is hereby affirmed. It is so ordered.
[ G.R. No. 223451, March 14, 2018 ]
ANTONIO F. TRILLANES IV, PETITIONER, VS. HON. EVANGELINE C. CASTILLO-MARIGOMEN, IN HER
CAPACITY AS PRESIDING JUDGE OF THE REGIONAL TRIAL COURT, QUEZON CITY, BRANCH 101 AND
ANTONIO L. TIU, RESPONDENTS.
DECISION
TIJAM, J.:
This is a Petition for Certiorari[1] under Rule 65 of the Rules of Court over public respondent's Order[2] dated
May 19, 2015 which denied petitioner's motion to dismiss premised on the special and affirmative defenses in
his Answer, and public respondent's Order[3] dated December 16, 2015 which denied petitioner's Motion for
Reconsideration, both issued in Civil Case No. R-QZN-14-10666-CV entitled "Antonio L. Tiu v. Antonio F.
Trillanes IV."
The Facts
Petitioner, as a Senator of the Republic of the Philippines, filed Proposed Senate Resolution No. 826 (P.S.
Resolution No. 826) directing the Senate's Committee on Accountability of Public Officials and Investigations
to investigate, in aid of legislation, the alleged P1.601 Billion overpricing of the new 11-storey Makati City Hall
II Parking Building, the reported overpricing of the 22-storey Makati City Hall Building at the average cost of
P240,000.00 per square meter, and related anomalies purportedly committed by former and local government
officials.[4]
Petitioner alleged that at the October 8, 2014 Senate Blue Ribbon Sub-Committee (SBRS) hearing on P.S.
Resolution No. 826, former Makati Vice Mayor Ernesto Mercado (Mercado) testified on how he helped former
Vice President Jejomar Binay (VP Binay) acquire and expand what is now a 350-hectare estate in Barangay
Rosario, Batangas, which has been referred to as the Hacienda Binay, about 150 hectares of which have
already been developed, with paved roads, manicured lawns, a mansion with resort-style swimming pool,
man-made lakes, Japanese gardens, a horse stable with practice race tracks, an extensive farm for fighting
cocks,
green
houses
and
orchards.[5]
According to petitioner, Mercado related in said hearing that because VP Binay's wife would not allow the
estate's developer, Hillmares' Construction Corporation (HCC), to charge the development expenses against
VP Binay's 13% share in kickbacks from all Makati infrastructure projects, HCC was compelled to add the
same as "overprice" on Makati projects, particularly the Makati City Hall Parking Building.[6]
Petitioner averred that private respondent thereafter claimed "absolute ownership" of the estate, albeit
asserting that it only covered 145 hectares, through his company called Sunchamp Real Estate Corporation
(Sunchamp), which purportedly entered into a Memorandum of Agreement (MOA) with a certain Laureano R.
Gregorio, Jr. (Gregorio, Jr.), the alleged owner of the consolidated estate and its improvements.[7]
Petitioner further averred that private respondent testified before the SBRS on the so-called Hacienda Binay
on October 22 and 30, 2014, and at the October 30, 2014 hearing, the latter presented a one-page
Agreement[8] dated January 18, 2013 between Sunchamp and Gregorio.[9] On its face, the Agreement
covered a 150-hectare property in Rosario, Batangas and showed a total consideration of P400 Million,
payable in tranches and in cash and/or listed shares, adjustable based on the fair market value. The
Agreement likewise ostensibly showed that Gregorio is obligated to cause the registration of improvements in
the name of Sunchamp and within two years, to deliver titles/documents evidencing the real and enforceable
rights of Sunchamp, and the latter, in the interim, shall have usufruct over the property, which is extendible.
Petitioner admitted that during media interviews at the Senate, particularly during gaps and breaks in the
plenary hearings as well as committee hearings, and in reply to the media's request to respond to private
respondent's claim over the estate, he expressed his opinion that based on his office's review of the
documents, private respondent appears to be a "front" or "nominee" or is acting as a "dummy" of the actual
and
beneficial
owner
of
the
estate,
VP
Binay.[10]
On October 22, 2014, private respondent filed a Complaint for Damages[11] against petitioner, docketed as
Civil Case No. R-QZN-14-10666-CV, for the latter's alleged defamatory statements before the media from
October 8 to 14, 2014, specifically his repeated accusations that private respondent is a mere "dummy" of VP
Binay.
Private respondent alleged that he is a legitimate businessman engaged in various businesses primarily in the
agricultural sector, and that he has substantial shareholdings, whether in his own name or through his holding
companies, in numerous corporations and companies, globally, some of which are publicly listed. He averred
that because of petitioner's defamatory statements, his reputation was severely tarnished as shown by the
steep drop in the stock prices of his publicly listed companies, AgriNurture, Inc. (AgriNurture), of which he is
the Executive Chairman, and Greenergy Holdings, Inc. (Greenergy), of which he is the Chairman, President
and Chief Executive Officer. To illustrate this, private respondent alleged that on October 7, 2014, the price of
a share of stock of Greenergy was P0.011 per share and the volume of trading was at 61 Million, while on
October 8, 2014, the price dropped to P0.0099 per share (equivalent to a 10% reduction) and the volume of
trading increased by more than seven times (at 475.7 Million), with the price continuing to drop thereafter.
Similarly, private respondent alleged that on October 8, 2014, AgriNurture experienced a six percent (6%)
drop from its share price of October 7, 2014 (from P2.6 to P2.45) and an increase of more than six times in
the volume of trading (from 68,000 to 409,000), with the share price continuing to drop thereafter. According
to private respondent, the unusual drop in the share price and the drastic increase in trading could be
attributed to the statements made by petitioner, which caused the general public to doubt his capability as a
businessman and to unload their shares, to the detriment of private respondent who has substantial
shareholdings
therein
through
his
holding
companies.
Denying that he is a "dummy," private respondent alleged that he possesses the requisite financial capacity to
fund the development, operation and maintenance of the "Sunchamp Agri-Tourism Park." He averred that
petitioner's accusations were defamatory, as they dishonored and discredited him, and malicious as they were
intended to elicit bias and prejudice his reputation. He further averred that such statements were not
absolutely privileged since they were not uttered in the discharge of petitioner's functions as a Senator, or
qualifiedly privileged under Article 354 of the Revised Penal Code,[12] nor constitutive of fair commentaries
on matters of public interest. He added that petitioner's statement that he was willing to apologize if proven
wrong, showed that he spoke without a reasonable degree of care and without regard to the gravity of his
sweeping
accusation.
Claiming that petitioner's statements besmirched his reputation, and caused him sleepless nights, wounded
feelings, serious anxiety, mental anguish and social humiliation, private respondent sought to recover P4
Million as moral damages, P500,000.00 as exemplary damages and attorney's fees in the amount of
P500,000.00.
In his Answer with Motion to Dismiss,[13] petitioner raised the following Special and Affirmative Defenses:
First, petitioner averred that private respondent failed to state and substantiate his cause of action since
petitioner's statement that private respondent was acting as a "front," "nominee" or "dummy" of VP Binay for
his Hacienda Binay
is
a
statement
of
fact.[14]
Petitioner asserted that private respondent was unable to prove his alleged ownership of the subject estate,
and that Mercado had testified that VP Binay is the actual and beneficial owner thereof, based on his personal
knowledge and his participation in the consolidation of the property. Petitioner noted that the titles covering
the estate are in the names of persons related to or identified with Binay. He argued that the one-page
Agreement submitted by private respondent hardly inspires belief as it was unnotarized and lacked details
expected in a legitimate document such as the technical description of the property, the certificates of title, tax
declarations, the area of the property and its metes and bounds, schedule of payments, list of deliverables
with their due dates, warranties and undertakings and closing date. He also pointed out that while the total
consideration for the Agreement was P446 Million, the downpayment was only P5 Million. With a yearly P30
Million revenue from the orchard, petitioner questioned why Gregorio would agree to part with his possession
for a mere one percent (1%) of the total consideration.[15] Petitioner likewise disputed private respondent's
supposed claim that Sunchamp had introduced improvements in the estate amounting to P50 Million,
stressing that it took over the estate only in July 2014 and that it did not own the property and probably never
would given the agrarian reform issues. Petitioner claimed that it was based on the foregoing and the report of
his legal/legislative staff that he made his statement that private respondent is a front, nominee or dummy of
VP
Binay.[16]
Second, petitioner posited that his statements were part of an ongoing public debate on a matter of public
concern, and private respondent, who had freely entered into and thrust himself to the forefront of said
debate, has acquired the status of a public figure or quasi-public figure. For these reasons, he argued that his
statements are protected by his constitutionally guaranteed rights to free speech and freedom of expression
and
of
the
press.[17]
Third, petitioner contended that his statements, having been made in the course of the performance of his
duties as a Senator, are covered by his parliamentary immunity under Article VI, Section 11 of the 1987
Constitution.[18]
Citing Antero J Pobre v. Sen. Miriam Defensor-Santiago,[19] petitioner argued that the claim of falsity of
statements made by a member of Congress does not destroy the privilege of parliamentary immunity, and the
authority to discipline said member lies in the assembly or the voters and not the courts.
Petitioner added that he never mentioned private respondent's two companies in his interviews and it was
private respondent who brought them up. Petitioner pointed out that private respondent only had an eight
percent (8%) shareholding in one of said companies and no shareholding in the other, and that based on the
records of the Philippine Stock Exchange, the share prices of both companies had been on a downward trend
long before October 8, 2014. Petitioner described the Complaint as a mere media ploy, noting that private
respondent made no claim for actual damages despite the alleged price drop. This, according to petitioner,
showed
that
private
respondent
could
not
substantiate
his
claim.[20]
Petitioner prayed for the dismissal of the Complaint and for the award of his Compulsory Counterclaims
consisting
of
moral
and
exemplary
damages
and
attorney's
fees.[21]
Petitioner subsequently filed a Motion (to Set Special and Affirmative Defenses for Preliminary Hearing)
[22] on the strength of Section 6, Rule 16 of the Rules of Court, which allows the court to hold a preliminary
hearing on any of the grounds for dismissal provided in the same rule, as may have been pleaded as an
affirmative
defense
in
the
answer.[23]
Private respondent opposed the motion on the grounds that the motion failed to comply with the provisions of
the Rules of Court on motions, and a preliminary hearing on petitioner's special and affirmative defenses was
prohibited
as
petitioner
had
filed
a
motion
to
dismiss.
On May 19, 2015, public respondent issued the Order[24] denying petitioner's motion to dismiss premised on
the special and affirmative defenses in his Answer. The Order, in pertinent part, states:
FIRST
ISSUE:
The
Complaint
failed
to
state
a
cause
of
action.
Whether true or false, the allegations in the complaint, would show that the same are sufficient to
enable the court to render judgment according to the prayer/s in the complaint.
SECOND
ISSUE:
The
defendant's
parliamentary
immunity.
The defense of parliamentary immunity may be invoked only on special circumstances such that
the special circumstance becomes a factual issue that would require for its establishment the
conduct
of
a
full
blown
trial.
With the defense invoking the defendant's parliamentary immunity from suit, it claims that this
Court has no jurisdiction over the instant case. Again, whether or not the courts have jurisdiction
over the instant case is determined based on the allegations of the complaint.
xxxx
Subject to the presentation of evidence, the complaint alleged that the libelous or defamatory
imputations (speech) committed by the defendant against the plaintiff were made not in Congress
or in any committee thereof. This parliamentary immunity, again, is subject to special
circumstances which circumstances must be established in a full blown trial.
xxxx
FOURTH. Whether or not a motion to dismiss was filed to prevent a preliminary hearing on the
defendant's
special
and
affirmative
defenses.
xxxx
Said 'answer with motion to dismiss' of the defendant did not contain any notice of hearing and was
not actually heard. To the mind of the Court, the use of the phrase 'with motion to dismiss'
highlights the allegations of special and affirmative defenses which are grounds for a motion to
dismiss. Thus, absent any motion to dismiss as contemplated by law, the preliminary hearing on
the special and affirmative defenses of the defendant may be conducted thereon.
Petitioner's motion for reconsideration was denied in public respondent's Order[25] dated December 16,
2015. Public respondent held that:
xxxx
To reiterate the ruling in the assailed order, parliamentary immunity is subject to special
circumstances
which
must
be
established
in
a
full
blown
trial.
In the complaint, the plaintiff stated that the defamatory statements were made in broadcast and
print media, not during a Senate hearing. Hence, between the allegations in the complaint and the
affirmative defenses in the answer, the issue on whether or not the alleged defamatory statements
were made in Congress or in any committee thereof arises. It would be then up to the Court to
determine whether the alleged defamatory statements are covered by parliamentary immunity after
trial.
Petitioner subsequently filed the instant Petition for Certiorari, assailing public respondent's May 19, 2015 and
December 16, 2015 Orders on the ground of grave abuse of discretion amounting to lack or excess of
jurisdiction. In ascribing grave abuse of discretion against public respondent, petitioner reiterates the special
and affirmative defenses in his Answer with Motion to Dismiss, and asks that the assailed Orders be nullified,
reversed
and
set
aside
and
a
new
one
be
issued
dismissing
the
Complaint.
In his Comment,[26] private respondent points out that the petition violates the doctrine of hierarchy of courts.
He contends that petitioner cannot invoke parliamentary immunity as his utterances were made in various
media interviews, beyond the scope of his official duties as Senator, and that the constitutional right to free
speech can be raised only against the government, not against private individuals.
Private respondent asserts that his Complaint sufficiently stated a cause of action as petitioner's imputations,
as alleged therein, were defamatory, malicious and made public, and the victim was clearly identifiable.
According to him, petitioner's claim that his imputations were statements of fact, covered by his parliamentary
immunity and not actionable under the doctrine of fair comment, are irrelevant as his motion to dismiss, based
on failure to state a cause of action, hypothetically admitted the allegations in the Complaint. At any rate, he
argues
that
truth
is
not
a
defense
in
an
action
for
defamation.
Private respondent further contends that he is not a public figure as to apply the doctrine of fair comment, and
that it was petitioner who brought up his name, out of nowhere, at the October 8, 2014 SBRS hearing. He
asserts that contrary to petitioner's claim, the Courts, not the Senate, has jurisdiction over the case. Finally, he
avers that because failure to state a cause of action and lack of jurisdiction over the subject matter are
determined solely by the allegations of the complaint, a preliminary hearing is unnecessary.
The Court's Ruling
Hierarchy
of
courts
should
have
been
observed
In justifying his direct recourse to the Court, petitioner alleges that there is a clear threat to his parliamentary
immunity as well as his rights to freedom of speech and freedom of expression, and he had no other plain,
speedy and adequate remedy in the ordinary course of law that could protect him from such threat. Petitioner
argues that the doctrine of hierarchy of courts is not an iron-clad rule, and direct filing with the Court is
allowed when there are genuine issues of constitutionality that must be addressed at the most immediate
time. Petitioner asserts that the case encompasses an issue which would require an interpretation of Section
11,
Article
VI
of
the
1987
Constitution.
The
Court
is
not
persuaded.
The power to issue writs of certiorari, prohibition, and mandamus is not exclusive to this Court.[27] The Court
shares the jurisdiction over petitions for these extraordinary writs with the Court of Appeals and the Regional
Trial Courts.[28] The hierarchy of courts serves as the general determinant of the appropriate forum for such
petitions.[29] The established policy is that "petitions for the issuance of extraordinary writs against first level
(inferior) courts should be filed with the Regional Trial Court, and those against the latter, with the Court of
Appeals," and "[a] direct invocation of the Supreme Court's original jurisdiction to issue these writs should be
allowed only when there are special and important reasons therefor, clearly and specifically set out in the
petition."[30] The parties, therefore, do not have an unfettered discretion in selecting the forum to which their
application
will
be
directed.[31]
Adherence to the doctrine on hierarchy of courts ensures that every level of the judiciary performs its
designated role in an effective and efficient manner.[32] This practical judicial policy is established to obviate
"inordinate demands upon the Court's time and attention which are better devoted to those matters within its
exclusive jurisdiction," and to prevent the congestion of the Court's docket.[33] The Court must remain as a
court of last resort if it were to satisfactorily perform its duties under the Constitution.[34]
After all, trial courts are not limited to the determination of facts upon evaluation of the evidence presented to
them.[35] They are likewise competent to determine issues of law which may include the validity of an
ordinance, statute, or even an executive issuance in relation to the Constitution.[36]
It is true that the doctrine of hierarchy of courts is not an iron-clad rule, and this Court has allowed a direct
application to this Court for a writ of certiorari when there are genuine issues of constitutionality that must be
addressed
at
the
most
immediate
time.[37]
However, the issue of what parliamentary immunity encompasses, in relation to a lawmaker's speech or
words spoken in debate in Congress, has been addressed as early as 1966 in the case of Nicanor T. Jimenez
v. Bartolome Cabangbang,[38] where the Court succinctly held:
The determination of the first issue depends on whether or not the aforementioned publication falls
within the purview of the phrase "speech or debate therein"-that is to say, in Congress used in this
provision.
Said expression refers to utterances made by Congressmen in the performance of their official
functions, such as speeches delivered, statements made, or votes cast in the halls of Congress,
while the same is in session, as well as bills introduced in Congress, whether the same is in
session or not, and other acts performed by Congressmen, either in Congress or outside the
premises housing its offices, in the official discharge of their duties as members of Congress
and of Congressional Committees duly authorized to perform its functions as such , at the
time of the performance of the acts in question. (Citations omitted and emphasis ours.)[39]
In Jimenez, a civil action for damages was filed against a member of the House of Representatives for the
publication, in several newspapers of general circulation, of an open letter to the President which spoke of
operational plans of some ambitious officers of the Armed Forces of the Philippines (AFP) involving a
"massive political build-up" of then Secretary of National Defense Jesus Vargas to prepare him to become a
presidential candidate, a coup d'etat, and a speech from General Arellano challenging Congress' authority
and integrity to rally members of the AFP behind him and to gain civilian support. The letter alluded to the
plaintiffs, who were members of the AFP, to be under the control of the unnamed "planners," "probably
belong(ing) to the Vargas-Arellano clique," and possibly "unwitting tools" of the plans.
Holding that the open letter did not fall under the privilege of speech or debate under the Constitution, the
Court declared:
The publication involved in this case does not belong to this category. According to the complaint
herein, it was an open letter to the President of the Philippines, dated November 14, 1958, when
Congress presumably was not in session, and defendant caused said letter to be published in
several newspapers of general circulation in the Philippines, on or about said date. It is obvious
that, in thus causing the communication to be so published, he was not performing his official
duty, either as a member of Congress or as officer or any Committee thereof. Hence, contrary
to the finding made by His Honor, the trial Judge, said communication is not absolutely
privileged. (Emphasis ours.)
Albeit rendered in reference to the 1935 constitutional grant of parliamentary immunity,
the Jimenez pronouncement on what constitutes privileged speech or debate in Congress still applies. The
same privilege of "speech or debate" was granted under the 1973 and 1987 Philippine Constitutions, with the
latter Charters specifying that the immunity extended to lawmakers' speeches or debates in any committee of
the legislature. This is clear from the "speech or debate" clauses in the parliamentary immunity provisions of
the 1935, 1973 and 1987 Constitutions which respectively provide:
Section 15. The Senators and Members of the House of Representatives shall in all cases except
treason, felony, and breach of the peace, be privileged from arrest during their attendance at the
session of the Congress, and in going to and returning from the same; and for any speech or
debate therein, they shall not be questioned in any other place.[40] (Emphasis ours.)
Section 9. A Member of the National Assembly shall, in all offenses punishable by not more than six
years imprisonment, be privileged from arrest during his attendance at its sessions, and in going to
and returning from the same; but the National Assembly shall surrender the Member involved to
the custody of the law within twenty-four hours after its adjournment for a recess or its next
session, otherwise such privilege shall cease upon its failure to do so. A Member shall not be
questioned or held liable in any other place for any speech or debate in the Assembly or in
any
committee
thereof.[41] (Emphasis
ours.)
Section 11. A Senator or Member of the House of Representatives shall, in all offenses punishable
by not more than six years imprisonment, be privileged from arrest while the Congress is in
session. No Member shall be questioned nor be held liable in any other place for any speech
or debate in the Congress or in any committee thereof.[42] (Emphasis ours.)
Clearly, settled jurisprudence provides sufficient standards and guidelines by which the trial and appellate
courts can address and resolve the issue of parliamentary immunity raised by petitioner. The Court is, thus,
unconvinced that petitioner has presented an "exceptionally compelling reason"[43] to justify his direct
application
for
a
writ
of certiorari with
this
Court.
Even assuming arguendo that direct recourse to this Court is permissible, the petition must still be dismissed.
Petitioner's statements in media interviews are not covered by the parliamentary speech or debate"
privilege
Petitioner admits that he uttered the questioned statements, describing private respondent as former VP
Binay's "front" or "dummy" in connection with the so-called Hacienda Binay, in response to media interviews
during gaps and breaks in plenary and committee hearings in the Senate.[44] With Jimenez as our guidepost,
it is evident that petitioner's remarks fall outside the privilege of speech or debate under Section 11, Article VI
of the 1987 Constitution. The statements were clearly not part of any speech delivered in the Senate or any of
its committees. They were also not spoken in the course of any debate in said fora. It cannot likewise be
successfully contended that they were made in the official discharge or performance of petitioner's duties as a
Senator, as the remarks were not part of or integral to the legislative process.
The Speech or Debate Clause under the 1935 Constitution "was taken or is a copy of sec. 6, clause 1 of Art. 1
of the Constitution of the United States."[45] Such immunity has come to this country from the practices of the
Parliamentary as construed and applied by the Congress of the United States.[46]
The U.S. Supreme Court's disquisition in United States v. Brewster[47] on the scope of the privilege is of
jurisprudential significance:
Johnson thus stand as a unanimous holding that a Member of Congress may be prosecuted under
a criminal statute provided that the Government's case does not rely on legislative acts or the
motivation for legislative acts. A legislative act has consistently been defined as an act
generally done in Congress in relation to the business before it. In sum, the Speech or Debate
Clause prohibits inquiry only into those things generally said or done in the House or the Senate in
the performance of official duties and into the motivation for those acts.
It is well known, of course, that Members of the Congress engage in many activities other than the
purely legislative activities protected by the Speech or Debate Clause. These include a wide range
of legitimate "errands" performed for constituents, the making of appointments with Government
agencies, assistance in securing Government contracts, preparing so-called "news letters" to
constituents, news releases, and speeches delivered outside the Congress. The range of these
related activities has grown over the years. They are performed in part because they have
come to be expected by constituents, and because they are a means of developing
continuing support for future elections. Although these are entirely legitimate activities,
they are political in nature, rather than legislative, in the sense that term has been used by the
Court in prior cases. But it has never been seriously contended that these political matters,
however appropriate, have the protection afforded by the Speech or Debate Clause. Careful
examination of the decided cases reveals that the Court has regarded the protection as
reaching only those things "generally done in a session of the House by one of its members
in relation to the business before it," Kilbourn v. Thompson, supra, at 204, or things "said or
done by him, as a representative, in the exercise of the functions of that office," Coffin v. Coffin, 4
Mass.
1,
27
(
1808).
xxxx
xxx In stating that those things "in no wise related to the due functioning of the legislative process"
were not covered by the privilege, the Court did not in any sense imply as a corollary that
everything that "related" to the office of a Member was shielded by the Clause. Quite the contrary,
in Johnson we held, citing Kilbourn v. Thompson, supra, that only acts generally done in the
course
of
the
process
of
enacting
legislation
were
protected.
xxxx
In no case has this Court ever treated the Clause as protecting all con duct relating to the
legislative process. In every case thus far before this Court, the Speech or Debate Clause has
been limited to an act which was clearly a part of the legislative process - the due
functioning
of
the
process.
xxx
xxxx
(c) We would not think it sound or wise, simply out of an abundance of caution to doubly insure
legislative independence, to extend the privilege beyond its intended scope, its literal language,
and its history, to include all things in any way related to the legislative process. Given such a
sweeping reading, we have no doubt that there are few activities in which a legislator engages that
he would be unable somehow to "relate" to the legislative process. Admittedly, the Speech or
Debate Clause must be read broadly to effectuate its purpose of protecting the independence of
the Legislative Branch, but no more than the statutes we apply, was its purpose to make
Members of Congress super-citizens, immune from criminal responsibility. In its narrowest
scope, the Clause is a very large, albeit essential, grant of privilege. It has enabled reckless men to
slander and even destroy others with impunity, but that was the conscious choice of the Framers.
xxxx
xxx.The authors of our Constitution were well aware of the history of both the need for the privilege
and the abuses that could flow from too sweeping safeguards. In order to preserve other values,
they wrote the privilege so that it tolerates and protects behavior on the part of Members not
tolerated and protected when done by other citizens. but the shield does not extend beyond
what is necessary to preserve the integrity of the legislative process. Moreover, unlike
England, with no formal written constitutional limitations on the monarch, we defined limits on the
coordinate branches, providing other checks to protect against abuses of the kind experienced in
that
country.
(Emphasis
ours.)
xxxx
In Gravel v. United States,[48] the U.S. Supreme Court ruled that a Senator's private publication of certain
classified documents (popularly known as the Pentagon Papers), which the latter had taken up at a Senate
subcommittee hearing and placed in the legislative record, did not constitute "protected speech or debate,"
holding that it "was in no way essential to the deliberations of the Senate," and was "not part and parcel of the
legislative process." Explaining the scope of the Speech or Debate Clause, the U.S. Supreme Court declared:
But the Clause has not been extended beyond the legislative sphere. That Senators generally
perform certain acts in their official capacity as Senators does not necessarily make all such acts
legislative in nature. Members of Congress are constantly in touch with the Executive Branch of the
Government and with administrative agencies - they may cajole, and exhort with respect to the
administration of a federal statute - but such conduct, though generally done, is not protected
legislative
activity.
xxx
xxxx
Legislative acts are not all-encompassing. The heart of the Clause is speech or debate in either
House. Insofar as the Clause is construed to reach other matters, they must be an integral
part of the deliberative and communicative processes by which Members participate in
committee and House proceedings with respect to the consideration and passage or
rejection of proposed legislation or with respect to other matters which the Constitution
places within the jurisdiction of either House. xxx (Emphasis ours.)
It is, thus, clear that parliamentary non-accountability cannot be invoked when the lawmaker's speech or
utterance is made outside sessions, hearings or debates in Congress, extraneous to the "due functioning of
the (legislative) process."[49] To participate in or respond to media interviews is not an official function of any
lawmaker; it is not demanded by his sworn duty nor is it a component of the process of enacting laws. Indeed,
a lawmaker may well be able to discharge his duties and legislate without having to communicate with the
press. A lawmaker's participation in media interviews is not a legislative act, but is "political in
nature,"[50] outside the ambit of the immunity conferred under the Speech or Debate Clause in the 1987
Constitution. Contrary to petitioner's stance, therefore, he cannot invoke parliamentary immunity to cause the
dismissal of private respondent's Complaint. The privilege arises not because the statement is made by a
lawmaker,
but
because
it
is
uttered
in
furtherance
of
legislation.
The Speech or Debate Clause in our Constitution did not turn our Senators and Congressmen into "supercitizens"[51] whose spoken words or actions are rendered absolutely impervious to prosecution or civil action.
The Constitution conferred the privilege on members of Congress "not for their private indulgence, but for the
public good."[52] It was intended to protect them against government pressure and intimidation aimed at
influencing their decision-making prerogatives.[53] Such grant of legislative privilege must perforce be viewed
according to its purpose and plain language. Indeed, the privilege of speech or debate, which may "(enable)
reckless men to slander and even destroy others,"[54] is not a cloak of unqualified impunity; its invocation
must be "as a means of perpetuating inviolate the functioning process of the legislative department."[55] As
this Court emphasized in Pobre,[56] "the parliamentary non-accountability thus granted to members of
Congress is not to protect them against prosecutions for their own benefit, but to enable them, as the
people's representatives, to perform the functions of their office without fear of being made responsible
before
the
courts
or
other
forums
outside
the
congressional
hall."
Jurisdiction
lies
with
the
courts,
not
the
Senate
Petitioner argues that the RTC had no jurisdiction over the case, and citing Pobre, asserts that the authority to
discipline a member of Congress lies in the assembly or the voters and not the courts.
Petitioner's reliance on Pobre is misplaced. The statements questioned in said disbarment case were part of a
lawyer-Senator's privilege speech delivered on the Senate floor professedly with a view to future remedial
legislation. By reason of the Senator's parliamentary immunity, the Court held that her speech was "not
actionable criminally or in a disciplinary proceeding under the Rules of Court." The questioned statements in
this case, however, were admittedly made in response to queries from the media during gaps in the Senate's
plenary and committee hearings, thus, beyond the purview of privileged speech or debate under Section 11,
Article
VI
of
the
Constitution.
The Court held in Pobre:
Courts do not interfere with the legislature or its members in the manner they perform their
functions in the legislative floor or in committee rooms. Any claim of an unworthy purpose or
of the falsity and mala fides of the statement uttered by the member of the Congress does not
destroy the privilege. The disciplinary authority of the assembly and the voters, not the courts, can
properly discourage or correct such abuses committed in the name of parliamentary immunity.
(Citations omitted and emphasis ours.)[57]
Clearly, the Court's pronouncement that the legislative body and the voters, not the courts, would serve as the
disciplinary authority to correct abuses committed in the name of parliamentary immunity, was premised on
the questionable remarks being made in the performance of legislative functions, on the legislative floor or
committee rooms where the privilege of speech or debate may be invoked. Necessarily, therefore, statements
falling outside the privilege and giving rise to civil injury or criminal responsibility will not foreclose judicial
review.
Furthermore, it is well-settled that jurisdiction over the subject matter of a case is conferred by law.[58] An
action for damages on account of defamatory statements not constituting protected or privileged "speech or
debate" is a controversy well within the courts' authority to settle. The Constitution vests upon the courts the
power and duty "to settle actual controversies involving rights which are legally demandable and
enforceable."[59] Batas Pambansa Blg. 129, as amended, conferred jurisdiction over actions for damages
upon either the RTC or the Municipal Trial Court, depending on the total amount claimed.[60] So also, Article
33 of the Civil Code expressly provides that in cases of defamation, a civil action for damages, entirely
separate and distinct from the criminal action, may be brought by the injured party, and such civil action shall
proceed independently of the criminal prosecution, and shall require only a preponderance of evidence.
In fine, petitioner cannot successfully invoke parliamentary nonaccountability to insulate his statements,
uttered
outside
the
"sphere
of
legislative
activity,"[61] from
judicial
review.
Preliminary
hearing
was
not
warranted
Petitioner argues that a preliminary hearing on his special and affirmative defenses is necessary to allow him
to
present
evidence
that
will
warrant
the
immediate
dismissal
of
the
Complaint.
The
Court
is
not
persuaded.
Under Section 6, Rule 16 of the Rules of Court, a preliminary hearing on the affirmative defenses may be
allowed only when no motion to dismiss has been filed. Section 6, however, must be construed in the light of
Section 3 of the same Rule, which requires courts to resolve a motion to dismiss and prohibits deferment of
such resolution on the ground of indubitability. Thus, Section 6 disallows a preliminary hearing of affirmative
defenses once a motion to dismiss has been filed because such defenses should have already been
resolved.[62]
In this case, however, petitioner's motion to dismiss had not been resolved when petitioner moved for a
preliminary hearing. As public respondent stated in the assailed May 19, 2015 Order, the motion did not
contain a notice of hearing and was not actually heard. Even so, a preliminary hearing is not warranted.
In his Answer with Motion to Dismiss, petitioner averred that private respondent failed to state and
substantiate his cause of action, arguing that the statement he made before the media, in which he described
private respondent as a "front" or "dummy" of former VP Binay for the so-called Hacienda Binay, was one of
fact.
By raising failure to state a cause of action as his defense, petitioner is regarded as having hypothetically
admitted
the
allegations
in
the
Complaint.[63]
The test of the sufficiency of the facts stated in a complaint as constituting a cause of action is whether or not,
admitting the facts so alleged, the court can render a valid judgment upon the same in accordance with the
plaintiff's prayer.[64] Inquiry is into the sufficiency not the veracity of the facts so alleged.[65] If the allegations
furnish sufficient basis by which the complaint may be maintained, the same should not be dismissed
regardless
of
the
defenses
that
may
be
raised
by
the
defendants.[66]
Accordingly, in determining whether a complaint did or did not state a cause of action, only the statements in
the complaint may properly be considered.[67] The court cannot take cognizance of external facts or hold
preliminary hearings to determine its existence.[68] For the court to do otherwise would be a procedural error
and
a
denial
of
the
plaintiff's
right
to
due
process.[69]
As this Court, in Aquino, et al. v. Quiazon, et al.[70] instructs:
The trial court may indeed elect to hold a preliminary hearing on affirmative defenses as raised in
the answer under Section 6 of Rules 16 of the Rules of Court. It has been held, however, that such
a hearing is not necessary when the affirmative defense is failure to state a cause of action,
and that it is, in fact, error for the court to hold a preliminary hearing to determine the
existence of external facts outside the complaint. The reception and the consideration of
evidence on the ground that the complaint fails to state a cause of action, has been held to be
improper and impermissible. Thus, in a preliminary hearing on a motion to dismiss or on the
affirmative defenses raised in an answer, the parties are allowed to present evidence except when
the motion is based on the ground of insufficiency of the statement of the cause of action which
must be determined on the basis only of the facts alleged in the complaint and no other. Section 6,
therefore, does not apply to the ground that the complaint fails to state a cause of
action. The trial court, thus, erred in receiving and considering evidence in connection with this
ground. (Citations omitted and emphasis ours.)
Complaint
sufficiently
states
a
cause
of
action
Private respondent filed his Complaint for moral and exemplary damages pursuant to Article 33 of the Civil
Code[71] which authorizes an injured party to file a civil action for damages, separate and distinct from the
criminal
action,
in
cases
of
defamation,
fraud
and
physical
injuries.
As defined in Article 353 of the Revised Penal Code, a libel[72] is a public and malicious imputation of a
crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending
to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one
who
is
dead.
For an imputation to be libelous, the following requisites must concur: a) it must be defamatory; b) it must be
malicious; c) it must be given publicity and d) the victim must be identifiable.[73] Any of the imputations
covered by Article 353 is defamatory,[74] and every defamatory imputation is presumed malicious.[75]
The Civil Code provides that moral damages include mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation, and similar injury, and may be recovered in
cases of libel, slander or any other form of defamation,[76] while exemplary damages may be recovered in
addition to moral damages, by way of correction or example for the public good, as determined by the court.
[77]
Measured against the foregoing requisites and considerations, including the scope of parliamentary nonaccountability, private respondent's Complaint, on its face, sufficiently makes out a cause of action for
damages.
In his Complaint, private respondent alleged that petitioner gave statements during interviews by the media,
describing him as the "dummy" of former VP Binay in connection with the so-called Hacienda Binay. Private
respondent averred that such imputation, unprivileged as it was uttered outside of petitioner's legislative
functions, actually discredited him and tarnished his reputation as a legitimate businessman, and caused him
sleepless nights, wounded feelings, serious anxiety, mental anguish and social humiliation. The statements,
presumed to be malicious and so described by private respondent, were also alleged to have been made
public through broadcast and print media, and identified private respondent as their subject. Hypothetically
admitting these allegations as true, as is required in determining whether a complaint fails to state a cause of
action,
private
respondent
may
be
granted
his
claim.[78]
The Complaint, therefore, cannot be dismissed on the ground of failure to state a cause of action. As the RTC
held, whether true or false, the allegations in the Complaint are sufficient to enable the court to render
judgment
according
to
private
respondent's
prayer.
Defense
of
lack
of
cause
of
action
requires
a
full-blown
trial
In moving for the outright dismissal of the Complaint, petitioner averred that private respondent failed to prove
his alleged ownership of the subject estate. To establish this, petitioner pointed to Mercado's testimony that
former VP Binay is the actual and beneficial owner thereof, the certificates of title covering the estate
purportedly in the names of persons related to or identified with former VP Binay, and the one-page
Agreement between Sunchamp and Gregorio which, according to petitioner, hardly inspires belief because it
was not notarized and lacked details expected in a legitimate document, and because the transaction, which
required Gregorio to give up possession, entailed a measly downpayment of P5 Million, out of the P446
Million total consideration, for an estate with a yearly P30 Million revenue from its orchard.
For these reasons, petitioner asserted that when he remarked before the media that private respondent was
acting as former VP Binay's "front" or "dummy," he was simply making a statement of fact which he had based
on documents, reports and information available to him, and which was never intended to be an insult or a
derogatory
imputation.
Petitioner also argued that because private respondent had thrust himself into the public debate on the socalled Hacienda Binay, he should be deemed a "public figure" and the questioned statements consequently
qualify
for
the
constitutional
protection
of
freedom
of
expression.
Private respondent, however, has notably denied being a "dummy," and rebuffed petitioner's claim that he had
thrust himself into the public debate, alleging that it was petitioner who brought up his name, out of nowhere,
at
the
October
8,
2014
SBRS
hearing.
Petitioner's Answer likewise repudiated private respondent's claim that the questioned statements had
brought about a steep drop in the share prices of two listed companies he was managing, to the detriment of
his substantial shareholdings therein. Petitioner countered that said prices had been on a downward trend
long before he uttered the questioned statements; that he never mentioned said companies in his interviews;
and that far from substantial, private respondent only had an 8% stake in one of the companies and none in
the
other.
A perusal of petitioner's defenses and arguments, as above outlined, at once reveals that the averments were
grounded on lack of cause of action. In fact, by pleading in his Answer that private respondent failed to
"substantiate" his cause of action, petitioner effectively questioned its existence, and would have the trial court
inquire
into
the
veracity
and
probative
value
of
private
respondent's
submissions.
Distinguished from failure to state a cause of action, which refers to the insufficiency of the allegations in the
pleading, lack of cause of action refers to the insufficiency of the factual basis for the action. [79] Petitioner, in
his Answer with Motion to Dismiss, clearly impugned the sufficiency of private respondent's basis for filing his
action
for
damages.
Section 6, Rule 16 allows the court to hold a preliminary hearing on affirmative defenses pleaded in the
answer based on grounds for dismissal under the same rule.[80] The ground of "lack of cause of action,"
however, is not one of the grounds for a motion to dismiss under Rule 16, hence, not proper for resolution
during
a
preliminary
hearing
held
pursuant
to
Section
6
thereof.[81]
Furthermore, Aquino teaches that the existence of a cause of action "goes into the very crux of the
controversy and is a matter of evidence for resolution after a full-blown hearing." An affirmative defense,
raising the ground that there is no cause of action as against the defendant, poses a question of fact that
should
be
resolved
after
the
conduct
of
the
trial
on
the
merits.[82]
Indeed, petitioner, in asking for the outright dismissal of the Complaint, has raised evidentiary matters and
factual issues which this Court cannot address or resolve, let alone at the first instance. The proof thereon
cannot be received in certiorari proceedings before the Court, but should be established in the RTC.[83]
Thus, even granting that the petition for certiorari might be directly filed with this Court, its dismissal must
perforce follow because its consideration and resolution would inevitably require the consideration and
evaluation of evidentiary matters. The Court is not a trier of facts, and cannot accept the petition
for certiorari for
that
reason.[84]
All
told,
for
its
procedural
infirmity
and
lack
of
merit,
the
petition
must
be
dismissed.
WHEREFORE, the petition is DISMISSED. Public respondent's Orders dated May 19, 2015 and December
16, 2015 in Civil Case No. RQZN-14-10666-CV are affirmed insofar as they are consistent with this decision.
SO ORDERED.
A.C. No. 7399
August 25, 2009
ANTERO J. POBRE, Complainant,
vs.
Sen. MIRIAM DEFENSOR-SANTIAGO, Respondent.
DECISION
VELASCO, JR., J.:
In his sworn letter/complaint dated December 22, 2006, with enclosures, Antero J. Pobre invites the Court’s
attention to the following excerpts of Senator Miriam Defensor-Santiago’s speech delivered on the Senate
floor:
x x x I am not angry. I am irate. I am foaming in the mouth. I am homicidal. I am suicidal. I am humiliated,
debased, degraded. And I am not only that, I feel like throwing up to be living my middle years in a country of
this nature. I am nauseated. I spit on the face of Chief Justice Artemio Panganiban and his cohorts in the
Supreme Court, I am no longer interested in the position [of Chief Justice] if I was to be surrounded by idiots. I
would rather be in another environment but not in the Supreme Court of idiots x x x.
To Pobre, the foregoing statements reflected a total disrespect on the part of the speaker towards then Chief
Justice Artemio Panganiban and the other members of the Court and constituted direct contempt of court.
Accordingly, Pobre asks that disbarment proceedings or other disciplinary actions be taken against the lady
senator.
In her comment on the complaint dated April 25, 2007, Senator Santiago, through counsel, does not deny
making the aforequoted statements. She, however, explained that those statements were covered by the
constitutional provision on parliamentary immunity, being part of a speech she delivered in the discharge of
her duty as member of Congress or its committee. The purpose of her speech, according to her, was to bring
out in the open controversial anomalies in governance with a view to future remedial legislation. She averred
that she wanted to expose what she believed "to be an unjust act of the Judicial Bar Council [JBC]," which,
after sending out public invitations for nomination to the soon to-be vacated position of Chief Justice, would
eventually inform applicants that only incumbent justices of the Supreme Court would qualify for nomination.
She felt that the JBC should have at least given an advanced advisory that non-sitting members of the Court,
like her, would not be considered for the position of Chief Justice.
The immunity Senator Santiago claims is rooted primarily on the provision of Article VI, Section 11 of the
Constitution, which provides: "A Senator or Member of the House of Representative shall, in all offenses
punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in
session. No member shall be questioned nor be held liable in any other place for any speech or debate
in the Congress or in any committee thereof." Explaining the import of the underscored portion of the
provision, the Court, in Osmeña, Jr. v. Pendatun, said:
Our Constitution enshrines parliamentary immunity which is a fundamental privilege cherished in every
legislative assembly of the democratic world. As old as the English Parliament, its purpose "is to enable and
encourage a representative of the public to discharge his public trust with firmness and success" for "it is
indispensably necessary that he should enjoy the fullest liberty of speech and that he should be protected
from resentment of every one, however, powerful, to whom the exercise of that liberty may occasion
offense."1
As American jurisprudence puts it, this legislative privilege is founded upon long experience and arises as a
means of perpetuating inviolate the functioning process of the legislative department. Without parliamentary
immunity, parliament, or its equivalent, would degenerate into a polite and ineffective debating forum.
Legislators are immune from deterrents to the uninhibited discharge of their legislative duties, not for their
private indulgence, but for the public good. The privilege would be of little value if they could be subjected to
the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a
judgment against them based upon a judge’s speculation as to the motives.2
This Court is aware of the need and has in fact been in the forefront in upholding the institution of
parliamentary immunity and promotion of free speech. Neither has the Court lost sight of the importance of
the legislative and oversight functions of the Congress that enable this representative body to look diligently
into every affair of government, investigate and denounce anomalies, and talk about how the country and its
citizens are being served. Courts do not interfere with the legislature or its members in the manner they
perform their functions in the legislative floor or in committee rooms. Any claim of an unworthy purpose or of
the falsity and mala fides of the statement uttered by the member of the Congress does not destroy the
privilege.3 The disciplinary authority of the assembly4 and the voters, not the courts, can properly discourage
or correct such abuses committed in the name of parliamentary immunity.5
For the above reasons, the plea of Senator Santiago for the dismissal of the complaint for disbarment or
disciplinary action is well taken. Indeed, her privilege speech is not actionable criminally or in a disciplinary
proceeding under the Rules of Court. It is felt, however, that this could not be the last word on the matter.
The Court wishes to express its deep concern about the language Senator Santiago, a member of the Bar,
used in her speech and its effect on the administration of justice. To the Court, the lady senator has
undoubtedly crossed the limits of decency and good professional conduct. It is at once apparent that her
statements in question were intemperate and highly improper in substance. To reiterate, she was quoted as
stating that she wanted "to spit on the face of Chief Justice Artemio Panganiban and his cohorts in the
Supreme Court," and calling the Court a "Supreme Court of idiots."
The lady senator alluded to In Re: Vicente Sotto.6 We draw her attention to the ensuing passage in Sotto that
she should have taken to heart in the first place:
x x x [I]f the people lose their confidence in the honesty and integrity of this Court and believe that they cannot
expect justice therefrom, they might be driven to take the law into their own hands, and disorder and perhaps
chaos would be the result.1avvphi1
No lawyer who has taken an oath to maintain the respect due to the courts should be allowed to erode the
people’s faith in the judiciary. In this case, the lady senator clearly violated Canon 8, Rule 8.01 and Canon 11
of the Code of Professional Responsibility, which respectively provide:
Canon 8, Rule 8.01.––A lawyer shall not, in his professional dealings, use language which is abusive,
offensive or otherwise improper.
Canon 11.––A lawyer shall observe and maintain the respect due to the courts and to the judicial officers and
should insist on similar conduct by others.
Senator/Atty. Santiago is a cut higher than most lawyers. Her achievements speak for themselves. She was a
former Regional Trial Court judge, a law professor, an oft-cited authority on constitutional and international
law, an author of numerous law textbooks, and an elected senator of the land. Needless to stress, Senator
Santiago, as a member of the Bar and officer of the court, like any other, is duty-bound to uphold the dignity
and authority of this Court and to maintain the respect due its members. Lawyers in public service are
keepers of public faith and are burdened with the higher degree of social responsibility, perhaps higher than
their brethren in private practice.7 Senator Santiago should have known, as any perceptive individual, the
impact her statements would make on the people’s faith in the integrity of the courts.
As Senator Santiago alleged, she delivered her privilege speech as a prelude to crafting remedial legislation
on the JBC. This allegation strikes the Court as an afterthought in light of the insulting tenor of what she said.
We quote the passage once more:
x x x I am not angry. I am irate. I am foaming in the mouth. I am homicidal. I am suicidal. I am humiliated,
debased, degraded. And I am not only that, I feel like throwing up to be living my middle years in a country of
this nature. I am nauseated. I spit on the face of Chief Justice Artemio Panganiban and his cohorts in the
Supreme Court, I am no longer interested in the position [of Chief Justice] if I was to be surrounded by
idiots. I would rather be in another environment but not in the Supreme Court of idiots x x x. (Emphasis ours.)
A careful re-reading of her utterances would readily show that her statements were expressions of personal
anger and frustration at not being considered for the post of Chief Justice. In a sense, therefore, her remarks
were outside the pale of her official parliamentary functions. Even parliamentary immunity must not be
allowed to be used as a vehicle to ridicule, demean, and destroy the reputation of the Court and its
magistrates, nor as armor for personal wrath and disgust. Authorities are agreed that parliamentary immunity
is not an individual privilege accorded the individual members of the Parliament or Congress for their personal
benefit, but rather a privilege for the benefit of the people and the institution that represents them.
To be sure, Senator Santiago could have given vent to her anger without indulging in insulting rhetoric and
offensive personalities.
Lest it be overlooked, Senator Santiago’s outburst was directly traceable to what she considered as an "unjust
act" the JBC had taken in connection with her application for the position of Chief Justice. But while the JBC
functions under the Court’s supervision, its individual members, save perhaps for the Chief Justice who sits as
the JBC’s ex-officio chairperson,8 have no official duty to nominate candidates for appointment to the position
of Chief Justice. The Court is, thus, at a loss to understand Senator Santiago’s wholesale and indiscriminate
assault on the members of the Court and her choice of critical and defamatory words against all of them.
At any event, equally important as the speech and debate clause of Art. VI, Sec. 11 of the Constitution is Sec.
5(5) of Art. VIII of the Constitution that provides:
Section 5. The Supreme Court shall have the following powers:
xxxx
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice,
and procedure in all courts, the admission to the practice of the law, the Integrated Bar, and legal assistance
to the underprivileged. (Emphasis ours.)
The Court, besides being authorized to promulgate rules concerning pleading, practice, and procedure in all
courts, exercises specific authority to promulgate rules governing the Integrated Bar with the end in view that
the integration of the Bar will, among other things:
(4) Shield the judiciary, which traditionally cannot defend itself except within its own forum, from the assaults
that politics and self interest may level at it, and assist it to maintain its integrity, impartiality and
independence;
xxxx
(11) Enforce rigid ethical standards x x x.9
In Re: Letter Dated 21 February 2005 of Atty. Noel S. Sorreda,10 we reiterated our pronouncement in Rheem
of the Philippines v. Ferrer11 that the duty of attorneys to the courts can only be maintained by rendering no
service involving any disrespect to the judicial office which they are bound to uphold. The Court wrote
in Rheem of the Philippines:
x x x As explicit is the first canon of legal ethics which pronounces that "[i]t is the duty of a lawyer to maintain
towards the Courts a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but
for the maintenance of its supreme importance." That same canon, as a corollary, makes it peculiarly
incumbent upon lawyers to support the courts against "unjust criticism and clamor." And more. The attorney’s
oath solemnly binds him to a conduct that should be "with all good fidelity x x x to the courts."
Also, in Sorreda, the Court revisited its holding in Surigao Mineral Reservation Board v. Cloribel12 that:
A lawyer is an officer of the courts; he is, "like the court itself, an instrument or agency to advance the ends of
justice." His duty is to uphold the dignity and authority of the courts to which he owes fidelity, "not to promote
distrust in the administration of justice." Faith in the courts, a lawyer should seek to preserve. For, to
undermine the judicial edifice "is disastrous to the continuity of government and to the attainment of the
liberties of the people." Thus has it been said of a lawyer that "[a]s an officer of the court, it is his sworn and
moral duty to help build and not destroy unnecessarily that high esteem and regard towards the courts so
essential to the proper administration of justice."13
The lady senator belongs to the legal profession bound by the exacting injunction of a strict Code. Society has
entrusted that profession with the administration of the law and dispensation of justice. Generally speaking, a
lawyer holding a government office may not be disciplined as a member of the Bar for misconduct committed
while in the discharge of official duties, unless said misconduct also constitutes a violation of his/her oath as a
lawyer.14
Lawyers may be disciplined even for any conduct committed in their private capacity, as long as their
misconduct reflects their want of probity or good demeanor,15 a good character being an essential
qualification for the admission to the practice of law and for continuance of such privilege. When the Code of
Professional Responsibility or the Rules of Court speaks of "conduct" or "misconduct," the reference is not
confined to one’s behavior exhibited in connection with the performance of lawyers’ professional duties, but
also covers any misconduct, which––albeit unrelated to the actual practice of their profession––would show
them to be unfit for the office and unworthy of the privileges which their license and the law invest in them.16
This Court, in its unceasing quest to promote the people’s faith in courts and trust in the rule of law, has
consistently exercised its disciplinary authority on lawyers who, for malevolent purpose or personal malice,
attempt to obstruct the orderly administration of justice, trifle with the integrity of courts, and embarrass or,
worse, malign the men and women who compose them. We have done it in the case of former Senator
Vicente Sotto in Sotto, in the case of Atty. Noel Sorreda in Sorreda, and in the case of Atty. Francisco B. Cruz
in Tacordan v. Ang17 who repeatedly insulted and threatened the Court in a most insolent manner.
The Court is not hesitant to impose some form of disciplinary sanctions on Senator/Atty. Santiago for what
otherwise would have constituted an act of utter disrespect on her part towards the Court and its members.
The factual and legal circumstances of this case, however, deter the Court from doing so, even without any
sign of remorse from her. Basic constitutional consideration dictates this kind of disposition.
We, however, would be remiss in our duty if we let the Senator’s offensive and disrespectful language that
definitely tended to denigrate the institution pass by. It is imperative on our part to re-instill in Senator/Atty.
Santiago her duty to respect courts of justice, especially this Tribunal, and remind her anew that the
parliamentary non-accountability thus granted to members of Congress is not to protect them against
prosecutions for their own benefit, but to enable them, as the people’s representatives, to perform the
functions of their office without fear of being made responsible before the courts or other forums outside the
congressional hall.18 It is intended to protect members of Congress against government pressure and
intimidation aimed at influencing the decision-making prerogatives of Congress and its members.
The Rules of the Senate itself contains a provision on Unparliamentary Acts and Language that enjoins a
Senator from using, under any circumstance, "offensive or improper language against another Senator
or against any public institution."19 But as to Senator Santiago’s unparliamentary remarks, the Senate
President had not apparently called her to order, let alone referred the matter to the Senate Ethics Committee
for appropriate disciplinary action, as the Rules dictates under such circumstance.20 The lady senator clearly
violated the rules of her own chamber. It is unfortunate that her peers bent backwards and avoided imposing
their own rules on her.
Finally, the lady senator questions Pobre’s motives in filing his complaint, stating that disciplinary proceedings
must be undertaken solely for the public welfare. We cannot agree with her more. We cannot overstress that
the senator’s use of intemperate language to demean and denigrate the highest court of the land is a clear
violation of the duty of respect lawyers owe to the courts.21
Finally, the Senator asserts that complainant Pobre has failed to prove that she in fact made the statements in
question. Suffice it to say in this regard that, although she has not categorically denied making such
statements, she has unequivocally said making them as part of her privilege speech. Her implied admission is
good enough for the Court.
WHEREFORE, the letter-complaint of Antero J. Pobre against Senator/Atty. Miriam Defensor-Santiago is,
conformably to Art. VI, Sec. 11 of the Constitution, DISMISSED.
SO ORDERED.
G.R. No. L-68159 March 18, 1985
HOMOBONO ADAZA, petitioner,
vs.
FERNANDO PACANA, JR., respondent
ESCOLIN, J.:
The issues posed for determination in this petition for prohibition with prayer for a writ of preliminary injunction
and/or restraining order are: [1] whether or not a provincial governor who was elected and had qualified as a
Mambabatas Pambansa [MP] can exercise and discharge the functions of both offices simultaneously; and [2]
whether or not a vice-governor who ran for the position of Mambabatas Pambansa, but lost, can continue
serving as vice-governor and subsequently succeed to the office of governor if the said office is vacated.
The factual background of the present controversy is as follows:
Petitioner Homobono A. Adaza was elected governor of the province of Misamis Oriental in the January 30,
1980 elections. He took his oath of office and started discharging his duties as provincial governor on March
3, 1980. Elected vice-governor for said province in the same elections was respondent Fernando Pacana, Jr.,
who likewise qualified for and assumed said office on March 3, 1980. Under the law, their respective terms of
office would expire on March 3, 1986.
On March 27, 1984, respondent Pacana filed his certificate of candidacy for the May 14, 1984 Batasan
Pambansa elections; petitioner Adaza followed suit on April 27, 1984. In the ensuing elections, petitioner won
by placing first among the candidates, while respondent lost.
Petitioner took his oath of office as Mambabatas Pambansa on July 19, 1984 1 and since then he has
discharged the functions of said office.
On July 23, 1984, respondent took his oath of office as governor of Misamis Oriental before President
Ferdinand E. Marcos, 2 and started to perform the duties of governor on July 25, 1984.
Claiming to be the lawful occupant of the governor's office, petitioner has brought this petition to exclude
respondent therefrom. He argues that he was elected to said office for a term of six years, that he remains to
be the governor of the province until his term expires on March 3, 1986 as provided by law, and that within the
context of the parliamentary system, as in France, Great Britain and New Zealand, a local elective official can
hold the position to which he had been elected and simultaneously be an elected member of Parliament.
Petitioner further contends that respondent Pacana should be considered to have abandoned or resigned
from the position of vice-governor when he filed his certificate of candidacy for the 1984 Batas Pambansa
elections; and since respondent had reverted to the status of a mere private citizen after he lost in the Batas
Pambansa elections, he could no longer continue to serve as vice-governor, much less assume the office of
governor.
1. The constitutional prohibition against a member of the Batasan Pambansa from holding any other office or
employment in the government during his tenure is clear and unambiguous. Section 10, Article VIII of the
1973 Constitution provides as follows:
Section 10 A member of the National Assembly [now Batasan Pambansa shall not hold any
other office or employment in the government or any subdivision, agency or instrumentality
thereof, including government owned or controlled corporations, during his tenure, except that of
prime minister or member of the cabinet. ...
The language used in the above-cited section is plain, certain and free from ambiguity. The only exceptions
mentioned therein are the offices of prime minister and cabinet member. The wisdom or expediency of the
said provision is a matter which is not within the province of the Court to determine.
A public office is a public trust. 3 It is created for the interest and the benefit of the people. As such, a holder
thereof "is subject to such regulations and conditions as the law may impose" and "he cannot complain of any
restrictions which public policy may dictate on his holding of more than one office." 4 It is therefore of no avail
to petitioner that the system of government in other states allows a local elective official to act as an elected
member of the parliament at the same time. The dictate of the people in whom legal sovereignty lies is
explicit. It provides no exceptions save the two offices specifically cited in the above-quoted constitutional
provision. Thus, while it may be said that within the purely parliamentary system of government no
incompatibility exists in the nature of the two offices under consideration, as incompatibility is understood in
common law, the incompatibility herein present is one created by no less than the constitution itself. In the
case at bar, there is no question that petitioner has taken his oath of office as an elected Mambabatas
Pambansa and has been discharging his duties as such. In the light of the oft-mentioned constitutional
provision, this fact operated to vacate his former post and he cannot now continue to occupy the same, nor
attempt to discharge its functions.
2. The second proposition advanced by petitioner is that respondent Pacana, as a mere private citizen, had
no right to assume the governorship left vacant by petitioner's election to the Batasan Pambansa. He
maintains that respondent should be considered as having abandoned or resigned from the vice-governorship
when he filed his certificate of candidacy for the Batas Pambansa elections. The point pressed runs afoul of
Batas Pambansa Blg. 697, the law governing the election of members of the Batasan Pambansa on May 14,
1984, Section 13[2] of which specifically provides that "governors, mayors, members of the various
sangguniang or barangay officials shall, upon filing a certificate of candidacy, be considered on forced leave
of absence from office." Indubitably, respondent falls within the coverage of this provision, considering that at
the time he filed his certificate of candidacy for the 1984 Batasan Pambansa election he was a member of the
Sangguniang Panlalawigan as provided in Sections 204 and 205 of Batas Pambansa Blg. 337, 5 otherwise
known as the Local Government Code. The reason the position of vice-governor was not included in Section
13[2] of BP Blg. 697 is explained by the following interchange between Assemblymen San Juan and Davide
during the deliberations on said legislation:
MR. DAVIDE. If I was able to get correctly the proposed amendment it would cover only
governors and members of the different sanggunians? Mayor, governors?
MR. SAN JUAN. Governors, mayors, members of the various sanggunian or barangay officials.
A vice-governor is a member of the Sanggunian Panlalawigan.
MR. DAVIDE. All. Why don't we instead use the word, "Local officials?
MR. SAN JUAN. Well, Mr. Speaker, your humble representation ...
MR. DAVIDE. And, secondly, why don't we include the vice-governor, the vice-mayors?
MR. SAN JUAN. Because they are members of the Sanggunians, Mr. Speaker. They are
covered by the provision on members of sanggunian. [Record of Proceedings, February 20,
1984, p. 92, Rollo]
Thus, when respondent reassumed the position of vice-governor after the Batas Pambansa elections, he was
acting within the law. His succession to the governorship was equally legal and valid, the same being in
accordance with Section 204[2] [a] of the same Local Government Code, which reads as follows:
SECTION 204. Powers, Duties and Privileges:
1] x x x
2] He shall:
a] Assume the office of the governor for the unexpired term of the latter in the cases provided for
in Section 48, paragraph 16 of this Code;
WHEREFORE, the instant petition is hereby dismissed. No costs.
SO ORDERED.
[ G.R. No. 175352, July 15, 2009 ]
DANTE V. LIBAN, REYNALDO M. BERNARDO, AND SALVADOR M. VIARI, PETITIONERS, VS. RICHARD
J. GORDON, RESPONDENT.
DECISION
CARPIO, J.:
The Case
This is a petition to declare Senator Richard J. Gordon (respondent) as having forfeited his seat in the
Senate.
The Facts
Petitioners Dante V. Liban, Reynaldo M. Bernardo, and Salvador M. Viari (petitioners) filed with this Court
a Petition to Declare Richard J. Gordon as Having Forfeited His Seat in the Senate. Petitioners are officers of
the Board of Directors of the Quezon City Red Cross Chapter while respondent is Chairman of the Philippine
National
Red
Cross
(PNRC)
Board
of
Governors.
During respondent's incumbency as a member of the Senate of the Philippines,[1] he was elected Chairman
of the PNRC during the 23 February 2006 meeting of the PNRC Board of Governors. Petitioners allege that
by accepting the chairmanship of the PNRC Board of Governors, respondent has ceased to be a member of
the Senate as provided in Section 13, Article VI of the Constitution, which reads:
SEC. 13. No Senator or Member of the House of Representatives may hold any other office or employment in
the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries, during his term without forfeiting his seat. Neither shall he be
appointed to any office which may have been created or the emoluments thereof increased during the term for
which he was elected.
Petitioners cite Camporedondo v. NLRC,[2] which held that the PNRC is a government-owned or controlled
corporation. Petitioners claim that in accepting and holding the position of Chairman of the PNRC Board of
Governors, respondent has automatically forfeited his seat in the Senate, pursuant to Flores v. Drilon,
[3] which held that incumbent national legislators lose their elective posts upon their appointment to another
government
office.
In his Comment, respondent asserts that petitioners have no standing to file this petition which appears to be
an action for quo warranto, since the petition alleges that respondent committed an act which, by provision of
law, constitutes a ground for forfeiture of his public office. Petitioners do not claim to be entitled to the Senate
office of respondent. Under Section 5, Rule 66 of the Rules of Civil Procedure, only a person claiming to be
entitled to a public office usurped or unlawfully held by another may bring an action for quo warranto in his
own name. If the petition is one for quo warranto, it is already barred by prescription since under Section 11,
Rule 66 of the Rules of Civil Procedure, the action should be commenced within one year after the cause of
the public officer's forfeiture of office. In this case, respondent has been working as a Red Cross volunteer for
the past 40 years. Respondent was already Chairman of the PNRC Board of Governors when he was elected
Senator in May 2004, having been elected Chairman in 2003 and re-elected in 2005.
Respondent contends that even if the present petition is treated as a taxpayer's suit, petitioners cannot be
allowed to raise a constitutional question in the absence of any claim that they suffered some actual damage
or threatened injury as a result of the allegedly illegal act of respondent. Furthermore, taxpayers are allowed
to sue only when there is a claim of illegal disbursement of public funds, or that public money is being diverted
to any improper purpose, or where petitioners seek to restrain respondent from enforcing an invalid law that
results
in
wastage
of
public
funds.
Respondent also maintains that if the petition is treated as one for declaratory relief, this Court would have no
jurisdiction since original jurisdiction for declaratory relief lies with the Regional Trial Court.
Respondent further insists that the PNRC is not a government-owned or controlled corporation and that the
prohibition under Section 13, Article VI of the Constitution does not apply in the present case since volunteer
service
to
the
PNRC
is
neither
an
office
nor
an
employment.
In their Reply, petitioners claim that their petition is neither an action for quo warranto nor an action for
declaratory relief. Petitioners maintain that the present petition is a taxpayer's suit questioning the unlawful
disbursement of funds, considering that respondent has been drawing his salaries and other compensation as
a Senator even if he is no longer entitled to his office. Petitioners point out that this Court has jurisdiction over
this petition since it involves a legal or constitutional issue which is of transcendental importance.
The Issues
Petitioners raise the following issues:
1. Whether the Philippine National Red Cross (PNRC) is a government- owned or controlled
corporation;
2. Whether Section 13, Article VI of the Philippine Constitution applies to the case of respondent
who is Chairman of the PNRC and at the same time a Member of the Senate;
3. Whether respondent should be automatically removed as a Senator pursuant to Section 13,
Article VI of the Philippine Constitution; and
4. Whether petitioners may legally institute this petition against respondent.[4]
The substantial issue boils down to whether the office of the PNRC Chairman is a government office or an
office in a government-owned or controlled corporation for purposes of the prohibition in Section 13, Article VI
of the Constitution.
The Court's Ruling
We
find
Petitioners
Have
the
No
petition
Standing
to
without
File
merit.
this
Petition
A careful reading of the petition reveals that it is an action for quo warranto. Section 1, Rule 66 of the Rules of
Court provides:
Section 1. Action by Government against individuals. - An action for the usurpation of a public
office, position or franchise may be commenced by a verified petition brought in the name of
the
Republic
of
the
Philippines
against:
(a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or
franchise;
(b) A public officer who does or suffers an act which by provision of law, constitutes a
ground
for
the
forfeiture
of
his
office;
or
(c) An association which acts as a corporation within the Philippines without being legally
incorporated or without lawful authority so to act. (Emphasis supplied)
Petitioners allege in their petition that:
4. Respondent became the Chairman of the PNRC when he was elected as such during the First
Regular Luncheon-Meeting of the Board of Governors of the PNRC held on February 23, 2006, the
minutes of which is hereto attached and made integral part hereof as Annex "A."
5. Respondent was elected as Chairman of the PNRC Board of Governors, during his incumbency
as a Member of the House of Senate of the Congress of the Philippines, having been elected as
such
during
the
national
elections
last
May
2004.
6. Since his election as Chairman of the PNRC Board of Governors, which position he duly
accepted, respondent has been exercising the powers and discharging the functions and duties of
said
office,
despite
the
fact
that
he
is
still
a
senator.
7. It is the respectful submission of the petitioner[s] that by accepting the chairmanship of the
Board of Governors of the PNRC, respondent has ceased to be a Member of the House of
Senate as provided in Section 13, Article VI of the Philippine Constitution, x x x
x
x
x
x
10. It is respectfully submitted that in accepting the position of Chairman of the Board of
Governors of the PNRC on February 23, 2006, respondent has automatically forfeited his
seat in the House of Senate and, therefore, has long ceased to be a Senator, pursuant to the
ruling of this Honorable Court in the case of FLORES, ET AL. VS. DRILON AND GORDON, G.R.
No.
104732,
x
x
x
11. Despite the fact that he is no longer a senator, respondent continues to act as such and still
performs the powers, functions and duties of a senator, contrary to the constitution, law and
jurisprudence.
12. Unless restrained, therefore, respondent will continue to falsely act and represent himself as a
senator or member of the House of Senate, collecting the salaries, emoluments and other
compensations, benefits and privileges appertaining and due only to the legitimate senators, to the
damage, great and irreparable injury of the Government and the Filipino people.[5] (Emphasis
supplied)
Thus, petitioners are alleging that by accepting the position of Chairman of the PNRC Board of Governors,
respondent has automatically forfeited his seat in the Senate. In short, petitioners filed an action for
usurpation of public office against respondent, a public officer who allegedly committed an act which
constitutes a ground for the forfeiture of his public office. Clearly, such an action is for quo warranto,
specifically
under
Section
1(b),
Rule
66
of
the
Rules
of
Court.
Quo warranto is generally commenced by the Government as the proper party plaintiff. However, under
Section 5, Rule 66 of the Rules of Court, an individual may commence such an action if he claims to be
entitled to the public office allegedly usurped by another, in which case he can bring the action in his own
name. The person instituting quo warranto proceedings in his own behalf must claim and be able to show that
he is entitled to the office in dispute, otherwise the action may be dismissed at any stage.[6] In the present
case, petitioners do not claim to be entitled to the Senate office of respondent. Clearly, petitioners have no
standing
to
file
the
present
petition.
Even if the Court disregards the infirmities of the petition and treats it as a taxpayer's suit, the petition would
still fail on the merits.
PNRC is a Private Organization Performing Public Functions
On 22 March 1947, President Manuel A. Roxas signed Republic Act No. 95,[7] otherwise known as the PNRC
Charter. The PNRC is a non-profit, donor-funded, voluntary, humanitarian organization, whose mission is to
bring timely, effective, and compassionate humanitarian assistance for the most vulnerable without
consideration of nationality, race, religion, gender, social status, or political affiliation.[8] The PNRC provides
six major services: Blood Services, Disaster Management, Safety Services, Community Health and Nursing,
Social
Services
and
Voluntary
Service.[9]
The Republic of the Philippines, adhering to the Geneva Conventions, established the PNRC as a voluntary
organization for the purpose contemplated in the Geneva Convention of 27 July 1929.[10] The Whereas
clauses of the PNRC Charter read:
WHEREAS, there was developed at Geneva, Switzerland, on August 22, 1864, a convention by
which the nations of the world were invited to join together in diminishing, so far lies within their
power,
the
evils
inherent
in
war;
WHEREAS, more than sixty nations of the world have ratified or adhered to the subsequent
revision of said convention, namely the "Convention of Geneva of July 29 [sic], 1929 for the
Amelioration of the Condition of the Wounded and Sick of Armies in the Field" (referred to in this
Charter
as
the
Geneva
Red
Cross
Convention);
WHEREAS, the Geneva Red Cross Convention envisages the establishment in each country
of a voluntary organization to assist in caring for the wounded and sick of the armed forces
and
to
furnish
supplies
for
that
purpose;
WHEREAS, the Republic of the Philippines became an independent nation on July 4, 1946
and proclaimed its adherence to the Geneva Red Cross Convention on February 14, 1947,
and by that action indicated its desire to participate with the nations of the world in
mitigating the suffering caused by war and to establish in the Philippines a voluntary
organization for that purpose as contemplated by the Geneva Red Cross Convention;
WHEREAS, there existed in the Philippines since 1917 a Charter of the American National Red
Cross which must be terminated in view of the independence of the Philippines; and
WHEREAS, the volunteer organizations established in the other countries which have ratified or
adhered to the Geneva Red Cross Convention assist in promoting the health and welfare of their
people in peace and in war, and through their mutual assistance and cooperation directly and
through their international organizations promote better understanding and sympathy among the
peoples of the world. (Emphasis supplied)
The PNRC is a member National Society of the International Red Cross and Red Crescent Movement
(Movement), which is composed of the International Committee of the Red Cross (ICRC), the International
Federation of Red Cross and Red Crescent Societies (International Federation), and the National Red Cross
and Red Crescent Societies (National Societies). The Movement is united and guided by its seven
Fundamental Principles:
1. HUMANITY - The International Red Cross and Red Crescent Movement, born of a desire to
bring assistance without discrimination to the wounded on the battlefield, endeavors, in its
international and national capacity, to prevent and alleviate human suffering wherever it may be
found. Its purpose is to protect life and health and to ensure respect for the human being. It
promotes mutual understanding, friendship, cooperation and lasting peace amongst all peoples.
2. IMPARTIALITY - It makes no discrimination as to nationality, race, religious beliefs, class or
political opinions. It endeavors to relieve the suffering of individuals, being guided solely by their
needs,
and
to
give
priority
to
the
most
urgent
cases
of
distress.
3. NEUTRALITY - In order to continue to enjoy the confidence of all, the Movement may not
take sides in hostilities or engage at any time in controversies of a political, racial, religious
or
ideological
nature.
4. INDEPENDENCE - The Movement is independent. The National Societies, while auxiliaries
in the humanitarian services of their governments and subject to the laws of their respective
countries, must always maintain their autonomy so that they may be able at all times to act
in
accordance
with
the
principles
of
the
Movement.
5. VOLUNTARY SERVICE - It is a voluntary relief movement not prompted in any manner by desire
for
gain.
6. UNITY - There can be only one Red Cross or one Red Crescent Society in any one country. It
must be open to all. It must carry on its humanitarian work throughout its territory.
7. UNIVERSALITY - The International Red Cross and Red Crescent Movement, in which all
Societies have equal status and share equal responsibilities and duties in helping each other, is
worldwide. (Emphasis supplied)
The Fundamental Principles provide a universal standard of reference for all members of the Movement. The
PNRC, as a member National Society of the Movement, has the duty to uphold the Fundamental Principles
and ideals of the Movement. In order to be recognized as a National Society, the PNRC has to
be autonomous and must operate in conformity with the Fundamental Principles of the Movement.[11]
The reason for this autonomy is fundamental. To be accepted by warring belligerents as neutral workers
during international or internal armed conflicts, the PNRC volunteers must not be seen as belonging to any
side of the armed conflict. In the Philippines where there is a communist insurgency and a Muslim separatist
rebellion, the PNRC cannot be seen as government-owned or controlled, and neither can the PNRC
volunteers be identified as government personnel or as instruments of government policy. Otherwise, the
insurgents or separatists will treat PNRC volunteers as enemies when the volunteers tend to the wounded in
the
battlefield
or
the
displaced
civilians
in
conflict
areas.
Thus, the PNRC must not only be, but must also be seen to be, autonomous, neutral and independent in
order to conduct its activities in accordance with the Fundamental Principles. The PNRC must not appear to
be an instrument or agency that implements government policy; otherwise, it cannot merit the trust of all and
cannot effectively carry out its mission as a National Red Cross Society.[12] It is imperative that the PNRC
must
be
autonomous,
neutral,
and
independent
in
relation
to
the
State.
To ensure and maintain its autonomy, neutrality, and independence, the PNRC cannot be owned or controlled
by the government. Indeed, the Philippine government does not own the PNRC. The PNRC does not have
government assets and does not receive any appropriation from the Philippine Congress.[13] The PNRC is
financed primarily by contributions from private individuals and private entities obtained through solicitation
campaigns organized by its Board of Governors, as provided under Section 11 of the PNRC Charter:
SECTION 11. As a national voluntary organization, the Philippine National Red Cross shall be
financed primarily by contributions obtained through solicitation campaigns throughout the
year which shall be organized by the Board of Governors and conducted by the Chapters in
their respective jurisdictions. These fund raising campaigns shall be conducted independently of
other fund drives by other organizations. (Emphasis supplied)
The government does not control the PNRC. Under the PNRC Charter, as amended, only six of the thirty
members of the PNRC Board of Governors are appointed by the President of the Philippines. Thus,
twenty-four members, or four-fifths (4/5), of the PNRC Board of Governors are not appointed by the President.
Section 6 of the PNRC Charter, as amended, provides:
SECTION 6. The governing powers and authority shall be vested in a Board of Governors composed of thirty
members, six of whom shall be appointed by the President of the Philippines, eighteen shall be elected by
chapter delegates in biennial conventions and the remaining six shall be selected by the twenty-four members
of the Board already chosen. x x x.
Thus, of the twenty-four members of the PNRC Board, eighteen are elected by the chapter delegates of the
PNRC, and six are elected by the twenty-four members already chosen -- a select group where the private
sector members have three-fourths majority. Clearly, an overwhelming majority of four-fifths of the PNRC
Board are elected or chosen by the private sector members of the PNRC.
The PNRC Board of Governors, which exercises all corporate powers of the PNRC, elects the PNRC
Chairman and all other officers of the PNRC. The incumbent Chairman of PNRC, respondent Senator
Gordon, was elected, as all PNRC Chairmen are elected, by a private sector-controlled PNRC Board fourfifths of whom are private sector members of the PNRC. The PNRC Chairman is not appointed by the
President or by any subordinate government official.
Under Section 16, Article VII of the Constitution,[14] the President appoints all officials and
employees in the Executive branch whose appointments are vested in the President by the
Constitution or by law. The President also appoints those whose appointments are not otherwise
provided by law. Under this Section 16, the law may also authorize the "heads of departments,
agencies, commissions, or boards" to appoint officers lower in rank than such heads of
departments, agencies, commissions or boards.[15] In Rufino v. Endriga,[16] the Court explained
appointments
under
Section
16
in
this
wise:
Under Section 16, Article VII of the 1987 Constitution, the President appoints three groups of
officers. The first group refers to the heads of the Executive departments, ambassadors, other
public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain,
and other officers whose appointments are vested in the President by the Constitution. The second
group refers to those whom the President may be authorized by law to appoint. The third group
refers to all other officers of the Government whose appointments are not otherwise provided by
law.
Under the same Section 16, there is a fourth group of lower-ranked officers whose appointments
Congress may by law vest in the heads of departments, agencies, commissions, or boards. x x x
x
x
x
In a department in the Executive branch, the head is the Secretary. The law may not authorize the
Undersecretary, acting as such Undersecretary, to appoint lower-ranked officers in the Executive
department. In an agency, the power is vested in the head of the agency for it would be
preposterous to vest it in the agency itself. In a commission, the head is the chairperson of the
commission. In a board, the head is also the chairperson of the board. In the last three situations,
the law may not also authorize officers other than the heads of the agency, commission, or board to
appoint
lower-ranked
officers.
x
x
x
The Constitution authorizes Congress to vest the power to appoint lower-ranked officers
specifically in the "heads" of the specified offices, and in no other person. The word "heads" refers
to the chairpersons of the commissions or boards and not to their members, for several reasons.
The President does not appoint the Chairman of the PNRC. Neither does the head of any department,
agency, commission or board appoint the PNRC Chairman. Thus, the PNRC Chairman is not an official or
employee of the Executive branch since his appointment does not fall under Section 16, Article VII of the
Constitution. Certainly, the PNRC Chairman is not an official or employee of the Judiciary or Legislature. This
leads us to the obvious conclusion that the PNRC Chairman is not an official or employee of the Philippine
Government. Not being a government official or employee, the PNRC Chairman, as such, does not hold
a
government
office
or
employment.
Under Section 17, Article VII of the Constitution,[17] the President exercises control over all government
offices in the Executive branch. If an office is legally not under the control of the President, then such
office is not part of the Executive branch. In Rufino v. Endriga,[18] the Court explained the President's
power of control over all government offices as follows:
Every government office, entity, or agency must fall under the Executive, Legislative, or Judicial branches, or
must belong to one of the independent constitutional bodies, or must be a quasi-judicial body or local
government unit. Otherwise, such government office, entity, or agency has no legal and constitutional basis
for
its
existence.
The CCP does not fall under the Legislative or Judicial branches of government. The CCP is also not one of
the independent constitutional bodies. Neither is the CCP a quasi-judicial body nor a local government unit.
Thus, the CCP must fall under the Executive branch. Under the Revised Administrative Code of 1987, any
agency "not placed by law or order creating them under any specific department" falls "under the Office of the
President."
Since the President exercises control over "all the executive departments, bureaus, and offices," the
President necessarily exercises control over the CCP which is an office in the Executive branch. In mandating
that the President "shall have control of all executive . . . offices," Section 17, Article VII of the 1987
Constitution does not exempt any executive office -- one performing executive functions outside of the
independent constitutional bodies -- from the President's power of control. There is no dispute that the CCP
performs executive, and not legislative, judicial, or quasi-judicial functions.
The President's power of control applies to the acts or decisions of all officers in the Executive
branch. This is true whether such officers are appointed by the President or by heads of departments,
agencies, commissions, or boards. The power of control means the power to revise or reverse the
acts or decisions of a subordinate officer involving the exercise of discretion.
In short, the President sits at the apex of the Executive branch, and exercises "control of all the executive
departments, bureaus, and offices." There can be no instance under the Constitution where an officer of the
Executive branch is outside the control of the President. The Executive branch is unitary since there is only
one President vested with executive power exercising control over the entire Executive branch. Any office in
the Executive branch that is not under the control of the President is a lost command whose existence is
without any legal or constitutional basis. (Emphasis supplied)
An overwhelming four-fifths majority of the PNRC Board are private sector individuals elected to the PNRC
Board by the private sector members of the PNRC. The PNRC Board exercises all corporate powers of the
PNRC. The PNRC is controlled by private sector individuals. Decisions or actions of the PNRC Board are not
reviewable by the President. The President cannot reverse or modify the decisions or actions of the
PNRC Board. Neither can the President reverse or modify the decisions or actions of the PNRC
Chairman. It is the PNRC Board that can review, reverse or modify the decisions or actions of the PNRC
Chairman. This proves again that the office of the PNRC Chairman is a private office, not a government office.
Although the State is often represented in the governing bodies of a National Society, this can be justified by
the need for proper coordination with the public authorities, and the government representatives may take
part in decision-making within a National Society. However, the freely-elected representatives of a National
Society's active members must remain in a large majority in a National Society's governing bodies.[19]
The PNRC is not government-owned but privately owned. The vast majority of the thousands of PNRC
members are private individuals, including students. Under the PNRC Charter, those who contribute to
the annual fund campaign of the PNRC are entitled to membership in the PNRC for one year. Thus, any one
between 6 and 65 years of age can be a PNRC member for one year upon contributing P35, P100, P300,
P500 or P1,000 for the year.[20] Even foreigners, whether residents or not, can be members of the PNRC.
Section 5 of the PNRC Charter, as amended by Presidential Decree No. 1264,[21] reads:
SEC. 5. Membership in the Philippine National Red Cross shall be open to the entire population in the
Philippines regardless of citizenship. Any contribution to the Philippine National Red Cross Annual Fund
Campaign shall entitle the contributor to membership for one year and said contribution shall be deductible in
full for taxation purposes.
Thus, the PNRC is a privately owned, privately funded, and privately run charitable organization. The PNRC is
not
a
government-owned
or
controlled
corporation.
Petitioners anchor their petition on the 1999 case of Camporedondo v. NLRC,[22] which ruled that the PNRC
is a government-owned or controlled corporation. In ruling that the PNRC is a government-owned or
controlled corporation, the simple test used was whether the corporation was created by its own special
charter for the exercise of a public function or by incorporation under the general corporation law. Since the
PNRC was created under a special charter, the Court then ruled that it is a government corporation. However,
the Camporedondo ruling failed to consider the definition of a government-owned or controlled corporation as
provided under Section 2(13) of the Introductory Provisions of the Administrative Code of 1987:
SEC. 2. General Terms Defined. - x x x
(13) Government-owned or controlled corporation refers to any agency organized as a stock
or non-stock corporation, vested with functions relating to public needs whether
governmental or proprietary in nature, and owned by the Government directly or through its
instrumentalities either wholly, or where applicable as in the case of stock corporations, to
the extent of at least fifty-one (51) percent of its capital stock: Provided, That governmentowned or controlled corporations may be further categorized by the Department of the Budget, the
Civil Service Commission, and the Commission on Audit for purposes of the exercise and
discharge of their respective powers, functions and responsibilities with respect to such
corporations.(Boldfacing and underscoring supplied)
A government-owned or controlled corporation must be owned by the government, and in the case of a stock
corporation, at least a majority of its capital stock must be owned by the government. In the case of a nonstock corporation, by analogy at least a majority of the members must be government officials holding such
membership by appointment or designation by the government. Under this criterion, and as discussed earlier,
the
government
does
not
own
or
control
PNRC.
The PNRC Charter is Violative of the Constitutional Proscription against the Creation of Private
Corporations
by
Special
Law
The 1935 Constitution, as amended, was in force when the PNRC was created by special charter on 22
March 1947. Section 7, Article XIV of the 1935 Constitution, as amended, reads:
SEC. 7. The Congress shall not, except by general law, provide for the formation, organization, or regulation
of private corporations, unless such corporations are owned or controlled by the Government or any
subdivision or instrumentality thereof.
The subsequent 1973 and 1987 Constitutions contain similar provisions prohibiting Congress from creating
private corporations except by general law. Section 1 of the PNRC Charter, as amended, creates the PNRC
as a "body corporate and politic," thus:
SECTION 1. There is hereby created in the Republic of the Philippines a body corporate and
politic to be the voluntary organization officially designated to assist the Republic of the
Philippines in discharging the obligations set forth in the Geneva Conventions and to
perform such other duties as are inherent upon a National Red Cross Society. The national
headquarters of this Corporation shall be located in Metropolitan Manila. (Emphasis supplied)
In Feliciano v. Commission on Audit,[23] the Court explained the constitutional provision prohibiting Congress
from creating private corporations in this wise:
We begin by explaining the general framework under the fundamental law. The Constitution
recognizes two classes of corporations. The first refers to private corporations created under a
general law. The second refers to government-owned or controlled corporations created by special
charters.
Section
16,
Article
XII
of
the
Constitution
provides:
Sec. 16. The Congress shall not, except by general law, provide for the formation, organization, or
regulation of private corporations. Government-owned or controlled corporations may be created or
established by special charters in the interest of the common good and subject to the test of
economic
viability.
The Constitution emphatically prohibits the creation of private corporations except by general law
applicable to all citizens. The purpose of this constitutional provision is to ban private corporations
created by special charters, which historically gave certain individuals, families or groups special
privileges
denied
to
other
citizens.
In short, Congress cannot enact a law creating a private corporation with a special charter.
Such legislation would be unconstitutional. Private corporations may exist only under a
general law. If the corporation is private, it must necessarily exist under a general
law. Stated differently, only corporations created under a general law can qualify as private
corporations. Under existing laws, the general law is the Corporation Code, except that the
Cooperative
Code
governs
the
incorporation
of
cooperatives.
The Constitution authorizes Congress to create government-owned or controlled corporations
through special charters. Since private corporations cannot have special charters, it follows that
Congress can create corporations with special charters only if such corporations are governmentowned or controlled.[24] (Emphasis supplied)
In Feliciano, the Court held that the Local Water Districts are government-owned or controlled corporations
since they exist by virtue of Presidential Decree No. 198, which constitutes their special charter. The seed
capital assets of the Local Water Districts, such as waterworks and sewerage facilities, were public property
which were managed, operated by or under the control of the city, municipality or province before the assets
were transferred to the Local Water Districts. The Local Water Districts also receive subsidies and loans from
the Local Water Utilities Administration (LWUA). In fact, under the 2009 General Appropriations Act,[25] the
LWUA has a budget amounting to P400,000,000 for its subsidy requirements.[26] There is no private capital
invested in the Local Water Districts. The capital assets and operating funds of the Local Water Districts all
come from the government, either through transfer of assets, loans, subsidies or the income from such assets
or
funds.
The government also controls the Local Water Districts because the municipal or city mayor, or the provincial
governor, appoints all the board directors of the Local Water Districts. Furthermore, the board directors and
other personnel of the Local Water Districts are government employees subject to civil service laws and antigraft laws. Clearly, the Local Water Districts are considered government-owned or controlled corporations not
only because of their creation by special charter but also because the government in fact owns and controls
the
Local
Water
Districts.
Just like the Local Water Districts, the PNRC was created through a special charter. However, unlike the
Local Water Districts, the elements of government ownership and control are clearly lacking in the
PNRC. Thus, although the PNRC is created by a special charter, it cannot be considered a governmentowned or controlled corporation in the absence of the essential elements of ownership and control by the
government. In creating the PNRC as a corporate entity, Congress was in fact creating a private corporation.
However, the constitutional prohibition against the creation of private corporations by special charters
provides no exception even for non-profit or charitable corporations. Consequently, the PNRC Charter, insofar
as it creates the PNRC as a private corporation and grants it corporate powers,[27] is void for being
unconstitutional. Thus, Sections 1,[28] 2,[29] 3,[30] 4(a),[31] 5,[32] 6,[33] 7,[34] 8,[35] 9,[36] 10,[37] 11,[38] 12,
[39] and
13[40] of
the
PNRC
Charter,
as
amended,
are
void.
The other provisions[41] of the PNRC Charter remain valid as they can be considered as a recognition by the
State that the unincorporated PNRC is the local National Society of the International Red Cross and Red
Crescent Movement, and thus entitled to the benefits, exemptions and privileges set forth in the PNRC
Charter. The other provisions of the PNRC Charter implement the Philippine Government's treaty obligations
under Article 4(5) of the Statutes of the International Red Cross and Red Crescent Movement, which provides
that to be recognized as a National Society, the Society must be "duly recognized by the legal government of
its country on the basis of the Geneva Conventions and of the national legislation as a voluntary aid society,
auxiliary
to
the
public
authorities
in
the
humanitarian
field."
In sum, we hold that the office of the PNRC Chairman is not a government office or an office in a governmentowned or controlled corporation for purposes of the prohibition in Section 13, Article VI of the 1987
Constitution. However, since the PNRC Charter is void insofar as it creates the PNRC as a private
corporation, the PNRC should incorporate under the Corporation Code and register with the Securities and
Exchange
Commission
if
it
wants
to
be
a
private
corporation.
WHEREFORE, we declare that the office of the Chairman of the Philippine National Red Cross is not a
government office or an office in a government-owned or controlled corporation for purposes of the prohibition
in Section 13, Article VI of the 1987 Constitution. We also declare that Sections 1, 2, 3, 4(a), 5, 6, 7, 8, 9, 10,
11, 12, and 13 of the Charter of the Philippine National Red Cross, or Republic Act No. 95, as amended by
Presidential Decree Nos. 1264 and 1643, are VOID because they create the PNRC as a private corporation
or
grant
it
corporate
powers.
SO ORDERED.