Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. 190120               November 11, 2014

CIVIL AVIATION AUTHORITY OF THE PHILIPPINES EMPLOYEES' UNION (CAAP-EU) FORMERLY AIR TRANSPORTATION EMPLOYEES' UNION (ATEU), Petitioner, vs.CIVIL AVIATION AUTHORITY OF THE PHILIPPINES (CAAP); HON. LEANDRO R. MENDOZA, Secretary, Department of Transportation and Communications, in his capacity as Ex-Officio CAAP Chairman of the Board; RUBEN F. CIRON, PhD, Acting Director General, in his capacity as CAAP Ex Officio Vice Chairman; HON. AGNES VST. DEV ANADERA, Acting Secretary, Department of Justice, HON. MARGARITO B. TEVES, Secretary, Department of Finance, HON. ALBERTO G. ROMULO, Secretary, Department of Foreign Affairs, HON. RONALDO V. PUNO, Secretary, Department of Interior and Local Government, HON. MARIANITO D. ROQUE, Secretary, Department of Labor and Employment, and HON. JOSEPH ACE H. DURANO, Secretary, Department of Tourism, in their capacity as Ex-Officio MEMBERS CAAP Board of Directors; DEPARTMENT OF BUDGET AND MANAGEMENT (DBM); HON. ROLANDO C. ANDAYA, JR., in his capacity as Secretary of the Department of Budget and Management; CIVIL SERVICE COMMISSION (CSC); HON. CESAR D. BUENAFLOR and HON. MARY Z. FERNANDEZ-MENDOZA, in their capacity as Commissioners of the Civil Service Commission; EDUARDO E. KAPUNAN, JR., in his capacity as DeputyDirector General for Administrationof CAAP and as Chairman, CAAP Selection Committee; and ROLANDO P. MANLAPIG, in his capacity as Chairman, CAAP Special Selection Committee, Respondents.

D E C I S I O N

VILLARAMA, JR., J.:

Before this Court is an Amended Petition1 for Prohibition with prayer for the issuance of a Temporary Restraining Order (TRO) and a Writ of Preliminary Injunction filed by petitioner Civil Aviation Authority of

the Philippines Employees’ Union (CAAP-EU) formerly Air Transportation Employees’ Union (ATEU) (petitioner) – a legitimate union of employees of respondent Civil Aviation Authority of the Philippines (CAAP). Petitioner prays that the Court direct all respondents to desist from promulgating and implementing Authority Orders, Memoranda and all other issuances relating to the filling up of positions within the CAAP whether existing or newly created, and praying that the Court nullify and set aside the following:

a. Authority Order No. 77-08;2

b. Authority Order No. 118-08;3

c. Authority Order No. 139-08;4

d. Authority Order No. 163-08;5

e. Authority Order No. 172-08;6

f. Authority Order No. 173-08;7

g. Authority Order No. 181-08;8

h. Authority Order No. 81-09;9

i. Authority Order No. 82-09;10 and

j. Authority Order No. 83-0911

all issued by respondent Ruben F. Ciron, former Acting Director General of the CAAP allegedly with grave abuse of discretion amounting to lack of or in excess of jurisdiction. Petitioner asserts that such grave abuse of discretion was shown by the issuances of said Authority Orders and Memoranda which resulted in the classification and treatment of the incumbent personnel of the Air Transportation Office (ATO), now of CAAP, into "hold-over" status, thus violating the provisions of Republic Act (R.A.) No. 949712

otherwise known as the Civil Aviation Authority Act of 2008 and the security of tenure of government employees guaranteed by the 1987 Constitution and R.A. No. 6656.13

A brief historical background of the CAAP is in order.14

On November 20, 1931, the Philippine Legislature passed Act No. 390915 providing that the Secretary ofthe Department of Commerce and Communications has the duty, among others, to foster air commerce, encourage the establishment of airports, civil airways and other navigation facilities and investigate causes of air mishaps. As such, said Secretary has the power to administer and enforce air traffic rules, issue or revoke licenses and issue regulations necessary to execute his vested functions.

On December 5, 1932, Act No. 399616 amended Act No. 3909 as to matters concerning the licensing of airmen and aircraft, inspection of aircraft, air traffic rules, schedules and rates and enforcement of aviation laws.

On December 9, 1932, Act No. 403317 was approved, providing, among others, that no aviation public service, including those of foreign aircrafts, shall operate in the Philippines without having first secured from the Philippine Legislature a franchise to operate an air service.18 CAAP narrated that from 1932 to 1936, there were no standard procedures as to the licensing of airmen, registration of aircraft and recording of various aeronautical activities connected with commercial aviation. There were attempts made to register planes and their owners without ascertaining their airworthiness and to record names of pilots, airplane mechanics and other details. It was also narrated that in 1933, the office of Technical Assistant of Aviation Matters was expanded into the Aeronautics Division under the Department of Commerce and Industry, the functions of which were embodied in Administrative Order No. 309, a joint Bulletin issued by the Department of Public Works and Communications and the Department of Finance.19

On November 12, 1936, the National Assembly passed Commonwealth Act No. 168,20 otherwise known as the Civil Aviation Law of the Philippines, creating the Bureauof Aeronautics and organizing the same under the Department of Public Works and Communications.21 After the liberation of the Philippines in March 1945, the Bureau was reorganized and placed under the Department of National Defense. Among its functions was to promulgate civil

aviation regulations.22

On October, 1947, Executive Order (E.O.) No. 94 which reorganized the government, transferred the Bureau of Aeronautics to the newly created Department of Commerce and Industry and renamed the same as the Civil Aeronautics Administration (CAA).23

On June 5, 1948, R.A. No. 22424 created the National Airports Corporation, serving as an agency of the Republic of the Philippines for the development, administration, operation and management of government owned landing fields in the country25 except for those controlled and/or operated by the Armed Forces.

On November 10, 1950, the National Airports Corporation was abolished by E.O. No. 36526 and was replaced by the CAA.27

On June 20, 1952, R.A. No. 776,28 otherwise known as the Civil Aeronautics Act of the Philippines, was passed, reorganizing the Civil Aeronautics Board and the CAA, defining their respective powers and duties, making adjustments as to the funds and personnel and regulating civil aeronautics. Under R.A. No. 776, the CAA was charged with the duty of planning, designing, constructing, equipping, expanding, improving, repairing or altering aerodromes or such other structures, improvements or air navigation facilities.29

On October 19, 1956, former President Ramon Magsaysay issued E.O. No. 209,30 transferring in totothe CAA to the Department of Public Works, Transportation and Communications from the Department of Commerce and Industry.31

On January 20, 1975, Letter of Instruction No. 244, series of 1975,32

directed that all funds for the preliminary engineering, construction and maintenance of all national airports appropriated for the fiscal year 1974-75 be transferred and/or released to the Department of Public Highways. The responsibilities related to location, planning design and funding were later returned to the CAA.33

On July 23, 1979, former President Ferdinand E. Marcos issued E.O. No. 546,34 renaming the CAA as the Bureauof Air Transportation (BAT) and placing the same under the Ministry of Transportation and Communications.35

Subsequently, BAT, though reorganized, was maintained under E.O. No. 12536 issued by former President Corazon C. Aquino (President Aquino) on January 30, 1987. Shortly thereafter or on April 13, 1987, President Aquino issued E.O. No. 125-A37 renaming BAT to ATO which would be headed by the Assistant Secretary ofthe Office of Air Transportation.38 Section 1239 of said E.O. No. 125 which contained the proviso concerning BAT was deleted by Section 240 of E.O. No. 125-A.

As duly claimed by petitioner, sometime in the middle of 1995, the Philippine civil aviation safety oversight capability was downgraded by the United States of America (USA) through her Federal Aviation Administration (FAA) International Aviation Safety Assessment (IASA) into a Category 241 status. A Category 2 rating means a country either lacks laws or regulations necessary to oversee air carriers in accordance withminimum international standards, or that its civil aviation authority – equivalent to the FAA for aviation safety matters – is deficient inone or more areas, such as technical expertise, trained personnel, record keeping orinspection procedures. Correlatively, a Category 1 rating means a country’s civil aviation authority complies with the International Civil Aviation Organization42

(ICAO) standards, thus, her air carriers can add flights and services to the USA and carry the code of USA carriers.43 Petitioner attested that sometime in the first quarter of 1997, the Category 1 status was regained by the Philippines as it was successfully initiated by the organic/incumbent personnel of the defunct ATO.

However, sometime in January 2008, the FAA reverted the Philippines to its 1995 air safety rating of Category 2 from Category 1 because of air safety regulations, practices and personnel that fell below the standards of the ICAO.44

Thus, on March 4, 2008, R.A. No. 9497 was passed, whereby ATO was replaced by CAAP, to be headed by the Director General of Civil Aviation. Pursuant to Sections 445 and 8546 thereof, the ATO was abolished, and all its powers were transferred to the CAAP. To ensure the smooth transition from ATO to CAAP, Section 8647 of R.A. No. 9497 directed the Assistant Secretary of the ATO to continue to hold office and assume the powers of the CAAP Director General until his successor shall have been appointed and inducted into office

in accordance with said law. Likewise, retirement packages were provided to ATO employees who were willing to retire from the service.

On July 2, 2008, former President Gloria Macapagal-Arroyo appointed Ruben F. Ciron as Acting Director General of the CAAP.48

Immediately upon assumption of office, Ciron issued orders and memoranda for the active participation of incumbent and organic personnel of the defunct ATO along with his hired consultants in the crafting and formulation of the Implementing Rules and Regulations (IRR) of R.A. No. 9497, the new Organizational Structure and Staffing Pattern (OSSP) and the Qualification Standards (QS) for the proposed new plantilla of positions within the CAAP.

Accordingly, the Board of Directors of CAAP prepared its OSSP and the IRR of R.A. No. 9497, both of which were approved in Board Resolution No. 08-00149 dated July 30, 2008. Pursuant to Section 9050

of R.A. No. 9497, the IRR was formulated and was subsequently published in two newspapers of general circulation.51 Pertinently, Section 60 (a) of the IRR provides that the incumbent personnel ofthe former ATO shall continue to hold office in hold-over capacity until such time as the new Staffing Pattern and Manning shall have been approved by the Board and implemented by the CAAP Director General. Thereafter, the management of CAAP endorsed its OSSP for the approval of respondent Department of Budget and Management (DBM) in view of the latter’s authority to review reorganization details of government agencies. The OSSP was approved on July 20, 2009.52 However, petitioner lamented, among others, that the IRR, OSSP and QS approved by the CAAP Board of Directors were different from that agreed upon by the incumbent ATO personnel and Director General Ciron and his consultants.

Subsequently, Senate Concurrent Resolution No. 1053 and House Concurrent Resolution No. 2754 were issued, which clarified, among others, the intent of the lawmakers as regards the abolition of ATO; the hold-over status of qualified employees of ATO and the preferential status of the said employees with respect to the filling up of CAAP plantilla positions.

Aggrieved, on November 20, 2009, petitioner filed the Original

Petition for Prohibition55 directly before this Court. Said petition was subsequently amended on November 25, 2009. It assails the aforementioned Authority Orders, Memoranda and other issuances related to the selection and filling up of positions issued by Director General Ciron and seeks the nullification thereof including the IRR of R.A. No. 9497, the OSSP and QS for the employees of CAAP.

Petitioner invokes the following grounds:

I.

RESPONDENTS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING AND IMPLEMENTING AUTHORITY ORDERS, MEMORANDA AND ALL OTHER ISSUANCES RELATED TO THE SELECTION AND FILLING UP OFPOSITIONS IN THE CAAP, WHETHER EXISTING OR NEWLY CREATED, CONSIDERING THE ABSENCE OF POSITIONS, ITEM NUMBERS, QUALIFICATION STANDARDS AND PUBLICATION, WHICH ARE INDISPENSABLE REQUIREMENTS PRIOR TOTHE SELECTION AND APPOINTMENT TO ANY GOVERNMENT POST [; AND]

II.

RESPONDENTS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN EXPANDING THE APPLICABILITY OF THE "HOLD-OVER" STATUS IN THE IMPLEMENTING RULES AND REGULATIONS OF R.A. 9497, THUS VIOLATING THE EXPRESS PROVISIONS OF R.A. 9497 AND THE SECURITY OF TENURE OF GOVERNMENT EMPLOYEES GUARANTEED BY THE 1987 CONSTITUTION AND R.A. 6656.56

Petitioner explains that it directly sought recourse from this Court because there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law. Even ifthere would be any remedy, petitioner submits that such would be ineffective given the brazenness of respondents’ official actions. Petitioner also claims that it sought redress from the different agencies of the government butits actions were an exercise in futility because said agencies failed to act on its grievances. Petitioner further avers that since it represents

government employees in an agency which is national in scopeand whose function is highly imbued with public interest affecting national security and the economy, it would be paramount that its issues be resolved by this Court.57

On the merits, petitioner argues, among others, that respondents committed grave abuse of discretion in the issuance and implementation of the assailed Authority Orders and Memoranda because they placed the tenure of the CAAP personnel in jeopardy in clear violation of the latter’s security of tenure which is protected by the 1987 Constitution58 and R.A. No. 6656. Petitioner points out that while Sections 85 and 86 of R.A. No. 9497 literally abolished ATO, nevertheless, the tenor of the provisions thereof simply perpetuated and assumed the core of civil aviation regulatory functions, powers, and authority, including all assets of the defunct ATO. Petitioner also invokes the Minutes of the Discussion of the Bicameral Conference Committee on the Disagreeing Provisions of HBN 3156 and the amendments agreed upon on "The Creation of the Civil Aviation Authority,"59 and asserts that the real intention of R.A. No. 9497 was merely reorganization of the agency and notits entire abolition. Purportedly, abolition of an office cannot have the effect of removing an officer holding it if the office is restored under another name. Petitioner further contends that while Section 86 of R.A. No. 9497 categorically states that "the incumbent Assistant Secretary of the ATO shall continue to hold office and assume the powers of the Director General until his successor shall have been appointed and inducted into office," the law made no mention of the status of the employment of the personnel of the defunct ATO. The employees’ hold-over status as indicated in the IRR and in the Joint Senate Resolutions is opposed to Section 86 of R.A. No. 9497 which merely limits such status to the incumbent Assistant Secretary of the ATO as acting CAAP Director General. Likewise, petitioner asserts that the IRR expanded and modified the law and that the legislature through the issuance of said Resolutions encroached on the functions of this Court in interpreting the same. All told, petitioner submits that R.A. No. 9497 simply mandated that the selection and appointment of the heads of offices within CAAP are limited to the rank-and-file employees of the concerned or corresponding offices of the defunct ATO and that the personnel of the same, unless they opted to retire, are legally deemed transferred to the newly created CAAP. The hold-

over status accorded to the incumbent personnel of the ATO deviated from the law and the same personnel were placedin a disadvantageous situation and were stripped of their security of tenure.60

On the other hand, CAAP through the Office of the Government Corporate Counsel (OGCC) counters that the issue regarding the nullification of the assailed Authority Orders has become moot and academic. The OGCC asseverates that when the new CAAP Director General Alfonso G. Cusi (Director General Cusi) assumed office, he issued a Memorandum61 dated March 12, 2010 which provided that coterminous employees, consultants and job-order employees are deemed not employed under the CAAP unless reappointed orrenewed, thus terminating the services of all the personnel appointed by Director General Ciron. The OGCC submits that there being no justiciable controversy, there is nothing for this Court to adjudicate. Moreover, the OGCC advances the view that petitioner failed to establish its right to injunctive relief as its bare and selfserving allegations failed to overthrow the presumption that CAAP regularly performed its official functions in the promulgation and/or implementation of the assailed orders. The OGCC alsosubmits that petitioner disregarded the basic principle of the hierarchy of courts and the doctrine that this Court is not a trier of facts when petitioner directly filed the instant petition before us. The OGCC points out that, despite petitioner’s claim that it sought redress from different government agencies, petitioner failed to substantiate such claim. The selection processes assailed by petitioner, according to the OGCC, constitute triable facts and necessitate the determination and resolution of factual issues. Lastly, the OGCC questions the legal personality of petitioner to file the petition in behalf of the CAAP employees. The OGCC posits that while petitioner was registered as the employees’ union of the now abolished ATO, petitioner was not registered with the CSC.62

On this point, respondents DBM and CSC through the Office of the Solicitor General (OSG) opine that DBM acted within the scope of its authority when it approved the OSSP ofthe CAAP on July 20, 2009 as the same was done in the performance of DBM’s official functions as provided under E.O. No. 165, series of 1987.63 With its bare and unsubstantiated allegations, petitioner failed to prove that DBM acted

with grave abuse of discretion in the approval thereof. Moreover, invoking that ATO was effectively abolished by R.A. No. 9497,the OSG defends the validity of Section 60(a) of the IRR which states that the incumbent personnel of the ATO shall continue to hold office in a "hold[-]over capacity until such time [that a] new [s]taffing [p]attern and [m]anning [is] approved by the Board." The OSG posits that while it is true that an incumbent employee of the defunct ATO is given preference in the filling up of a plantilla position, said employee does not automatically qualify to the position he is presently holding. Thus, said employee still has toqualify under the new and approved staffing pattern and the new QS set by the CSC. Such approved QS shall be used as the standard minimum qualification requirements for purposes of appointments per CSC Memorandum Circular No. 03, series of 1991. However, if the incumbent fails to qualify, the affected employee may choose from the retirement packages provided under R.A. No. 9497 itself.64 The OSG asserts that in this case the employees’ right to security of tenure as embodied under Section 2(3),65 Article IX-B of the 1987 Constitution is not undermined. The OSG avers thatthe CSC has not yet received any appointments from the CAAP for attestation; hence, to restrain the CSC is premature.66

In essence, the issues for our resolution are:

1. Whether ATO was abolished under R.A. No. 9497;

2. Whether the incumbent ATO employees’ constitutional right to security of tenure was impaired; and

3. Whether there was grave abuse of discretion when Section 60 of the IRR provided a "hold-over" status for ATO employees, which was not expressly provided for under R.A. No. 9497. Prefatorily, we rule that petitioner has locus standi. Petitioner impugns the constitutionality of the IRR of R.A. No. 9497 and assailsthe validity of the abolition of the ATO and respondents’ acts in filling up positions within CAAP. Petitioner’s members are all employees of the defunct ATO and are actually covered by the law and its IRR. Thus, they have a personal and substantial interest in the case, such thatthey will sustain direct injury as a result of the enforcement of R.A. No. 9497 and its IRR.67

The Court agrees with the postulation of the OGCC that the nullification of the assailed Authority Orders has become moot and academic considering that Director General Cusi already issued a Memorandum68 dated March 12, 2010, terminating the services of all the personnel appointed by Director General Ciron. An issue is said to have become moot and academic when it ceases to present a justiciable controversy so that a declaration on the issue would be of no practical use or value.69 The Court will therefore abstain from expressing its opinion in a case where no legal relief is needed or called for.70

Nevertheless, despite this moot issue and the presence of some procedural flaws in the instant petition, such as petitioner’s disregard of the hierarchy of courts and the non-exhaustion of administrative remedies, we deem it necessary to address the essential issues. It is in the interest of the State that questions relating to the status and existence of a public office be settled without delay.71

That being said, we rule that the petition is bereft of merit.

The first issue is resolved in the affirmative.

Well entrenched in this jurisdiction is the rule that the power to abolish a public office is lodged with the legislature. This proceeds from the legal precept that the power to create includes the power to destroy. A public office is created either by the Constitution, by statute, or by authority of law. Thus, except where the office was created by the Constitution itself, it may be abolished by the same legislature that brought it into existence.72

Indubitably, this is the case at hand. The legislature through R.A. No. 9497 abolished the ATO as explicitly stated in Sections 4 and 85 thereof, viz:

SEC. 4. Creation of the Authority. – There is hereby created an independent regulatory body with quasi-judicial and quasi-legislative powers and possessing corporate attributes to be known as the Civil Aviation Authority of the Philippines (CAAP), hereinafter referred to as the "Authority", attached to the Department of Transportation and Communications (DOTC) for the purpose of policy coordination. For this purpose, the existing Air Transportation Office created under the

provisions of Republic Act No. 776, as amended, is hereby abolished.

x x x x

SEC. 85. Abolition of the Air Transportation Office. – The Air Transportation Office (ATO) created under Republic Act No. 776, a sectoral office of the Department of Transportation and

Communications (DOTC), is hereby abolished.

All powers, duties and rights vested by law and exercised by the ATO is hereby transferred to the Authority.

All assets, real and personal properties, funds and revenues owned by or vested in the different officesof the ATO are transferred to the Authority. All contracts, records and documents relating to the operations of the abolished agency and its offices and branches are likewise transferred to the Authority. Any real property owned by the national government or government-owned corporation or authority which is being used and utilized as office or facility by the ATO shall be transferred and titled in favor of the Authority. (Emphasis supplied)

Verily, the question whether a law abolishes an office is a question of legislative intent. In this case, petitioner tries to raise doubts as to the real intention of Congress. However, there should not be any controversy if there is an explicit declaration of abolition in the law itself.73 For where a statute is clear, plain and free from ambiguity, it must be given its literal meaning and applied without attempt to interpret. Verba legis non est recedendum, index animi sermo est. There should be no departure from the words of the statute, for speech is the index of intention.74 The legislature, through Sections 4 and 85 of R.A. No. 9497, has so clearly provided. As the Court merely interprets the law as it is, we have no discretion to give statutes a meaning detached from the manifest intendment and language thereof.75

It is worth mentioning that this is not the first time for this Court to rule regarding the abolition of the ATO and the emergence of the CAAP by virtue of R.A. No. 9497. Holding thatthe CAAP, as the legal successor of the ATO, is liable to respondents therein for obligations incurred by ATO, this Court in Air Transportation Office v. Ramos,76 in

no uncertain terms, held that the ATO was abolished by virtue of Sections 4 and 85 of R.A. No. 9497.

Thus, we find petitioner’s assertion thatthe real intention of R.A. No. 9497 was merely the reorganization ofthe ATO and not its abolition devoid of merit.

Correlatively, we resolve the second issue in the negative.

For the ATO employees’ security of tenure to be impaired, the abolition of the ATO must be done in bad faith.

At this juncture, our ruling in Kapisanan ng mga Kawani ng Energy Regulatory Board v. Barin77 is instructive, to wit:

A valid order of abolition must not only come from a legitimate body, it must also be made in good faith. An abolition is made in good faith when it is not made for political or personal reasons, or when it does not circumvent the constitutional security of tenure of civil service employees. Abolition of an office may be brought about by reasons of economy, or to remove redundancy of functions, or a clear and explicit constitutional mandate for such termination of employment.Where one office is abolished and replaced with another office vested with similar functions, the abolition is a legal nullity. When there is a void abolition, the incumbent is deemed to have never ceased holding office.

We have also held that, other thanthe aforestated reasons of economy, making the bureaucracy more efficient is also indicative of the exercise of good faith in, and a valid purpose for, the abolition of an office.78

The purpose for the abolition of the ATO is clearly manifested in Section 2 of R.A. No. 9497: SEC. 2. Declaration of Policy. – It is hereby declared the policy of the State to provide safe and efficient air transport and regulatory services in the Philippines by providing for the creation of a civil aviation authority with jurisdiction over the restructuring of the civil aviation system, the promotion, development and regulation of the technical, operational, safety, and aviation security functions under the civil aviation authority. (Emphasis supplied)

It cannot be disregarded that in January 2008, before the enactment of R.A. No. 9497, the Philippines was again downgraded by the FAA to a Category 2 status because of air safety regulations, practices and personnel which fell below the ICAO’s standards. Hence, it is but reasonable to state that the purpose for the abolition of the ATO, as posited by petitioner itself, was "to create a much more effective Agency in order to address the problems that go along with the fast emerging developments in the field of the globally-competitive aviation industry."79

On the other hand, circumstances evidencing bad faith are enumerated in Section 2 of R.A. No. 6656 which provides:

SEC. 2. No officer or employee in the career service shall be removed except for a valid cause and after due notice and hearing. A valid cause for removal exists when, pursuant to a bona fide reorganization, a position has been abolished or rendered redundant or there is a need to merge, divide, or consolidate positions in order to meet the exigencies of the service, or other lawful causes allowed by the Civil Service Law. The existence of any or some of the following circumstances may be considered as evidence of bad faith in the removals made as a result of reorganization, giving rise toa claim for reinstatement or reappointment by an aggrieved party: (a) Where there is a significant increase in the number of positions in the new staffing pattern of the department or agency concerned;

(b) Where an office is abolished and another performing substantially the same functions is created;

(c) Where incumbents are replaced by those less qualified in terms of status of appointment, performance and merit;

(d) Where there is a reclassification of offices in the department or agency concerned and the reclassified offices perform substantially the same functions as the original offices;

(e) Where the removal violates the order of separation provided in Section 3 hereof. (Emphasis supplied)

Petitioner posits that abolition of an office cannot have the effect of removing an officer holding it if the office is restored under another

name. However, we find no bad faith in the abolition of the ATO as the latter was not simply restored in another name in the person of the CAAP. Thus, we compare the ATO and the CAAP.

ATO was merely a sectoral office of the Department of Transportation and Communications (DOTC) and as suchacted within the supervision of the latter and budgeted under it. As Section 2 of E.O. No. 125-A, series of 1987 deleted Section 1280 of E.O. No. 125, seriesof 1987 which delineated the functions of the former BAT, werely on R.A. No. 776 in citing the functions of the CAA which were succeeded by the ATO through the powers and duties of the CAA Administrator. Section 32 of R.A. No. 776 provides:

SEC. 32. Powers and duties of the Administrator. – Subject to the general control and supervision of the Department Head, the Administrator shall have among others, the following powers and duties:

(1) To carry out the purposes and policies established in this Act; to enforce the provisions of, the rules and regulations issued in pursuance to, said Act; and he shall primarily be vested with authority to take charge of the technical and operational phase of civil aviation matters.

(2) To designate and establish civil airways, and to acquire, control, operate and maintain along such airways, air navigation facilities and to chart such airways and arrange for their publication including the aeronautical charts or maps required by the international aeronautical agencies by utilizing the equipment, supplies or assistance of existing agencies of the government as far as practicable.

(3) To issue airman’s certificate specifying the capacity in which the holder thereof is authorized to serve as airman in connection with aircraft and shall be issued only upon the finding that the applicant is properly qualified and physically able to perform the duties of the position. The certificate shall contain such terms, conditions and limitations as the Administrator may determine to be necessary to assure safety in air commerce: Provided, however,That the airman’s license shall be issued only to qualified persons who are citizens of the Philippines or qualified citizens of countries granting similar rights

and privileges to citizens of the Philippines.

(4) To issue airworthiness certificate for aircraft which shall prescribe the duration of such certificate, the type of service for which the aircraft may be used, and such other terms and conditions and limitations as are required.

(5) To issue air carrier operating certificate and to establish minimum safety standards for the operation of the air carrier to whom such certificate is issued. The air carrier operating certificate shall be issued only to aircrafts registered under the provisions of this Act.

(6) To issue type certificate for aircraft, aircraft engine, propellers and appliances.

(7) To inspect, classify and rateany air navigation facilities and aerodromes available for the use of aircraft as to its suitability for such use and to issue a certificate for such air navigation facility and aerodrome; and to determine the suitability offoreign aerodromes, air navigation facilities as well as air routes to be used prior to the operation of Philippine registered aircraft in foreign air transportation and from time to time thereafter as may be required in the interest of safety in air commerce.

(8) To issue certificates of persons or civil aviation schools giving instruction in flying, repairstations, and other air agencies and provide for the examination and rating thereof.

(9) To promulgate rules and regulations as may be necessary in the interest of safety in air commerce pertaining to the issuance of the airman’s certificate, including licensing of operating and mechanical personnel, type certificate for aircraft, aircraft engines, propellers and appliances, airworthiness certificate, air carrier operating certificate, air agency certificate, navigation facilityand aerodrome certificate; air traffic routes; radio and aeronautical telecommunications and air navigation aids; aircraft accident inquiry; aerodromes, both public and private owned; construction of obstructions to aerodromes; registration of aircraft; search and rescue; facilitation of air transport; operations of aircraft, both for domestic and international, including scheduled and non-scheduled; meteorology in relation to civil aviation; rules of the air; air traffic services; rules for prevention of

collision of aircraft; identification of aircraft; rules for safe altitudes of flight; and such other rules, regulations, standards, governing other practices, methods, procedures as the Administrator may find necessary and appropriate to provide adequately for safety, regularity and efficiency in air commerce and air navigation.

(10) To provide for the enforcement of the rules and regulations issued under the provisions of this Act and to conduct investigations for violations thereto. In undertaking such investigation, to require by subpoena or subpoena duces tecum, the attendance and testimony of witness, the production of books, papers, documents, exhibit matters, evidence, or the taking of depositions before any person authorized to administer oath. Refusal to submit tothe reasonable requirements of the investigation committee shall be punishable in accordance with the provisions of this Act.

(11) To investigate accidents involving aircraft and report to the Civil Aeronautics Board the facts, conditions and circumstances relating to the accidents and the probable cause thereof; and to make such recommendations to the Civil Aeronautics Board as may tend to prevent similar accidents in the future: Provided, That when any accident has resulted in serious or fatal injury, the Civil Aeronautics Board shall make public such report and recommendations: And provided, further, That no report on any accident or any statement made during any investigation or during hearing relative to such accident may be admitted as evidence or used for any purpose in any civil suitgrowing out of any matter revealed within any such report, statement, investigation or hearing.

(12) To collect and disseminate information relative to civil aeronautics and the development of air commerce and the aeronautical industry; to exchange with foreign governments, information pertaining to civil aeronautics; and to provide for direct communication all matters relating to the technical or operational phase of aeronautics with international aeronautical agencies.

(13) To acquire and operate such aircraft as may be necessary to execute the duties and functions of the Civil Aeronautics Administration prescribed in this Act.

(14) To plan, design, acquire, establish, construct, operate, improve, maintain, and repair necessary aerodromes and other air navigation facilities.

(15) To impose and fix, except those mentioned in section forty, paragraph twenty-five and hereinafter provided, reasonable charges and fees for the use of government aerodromes or air navigation facilities; for services rendered by the Civil Aeronautics Administration in the rating of any aerodrome or air navigation facilities, civil aviation schools and instructions, aircraft repair stations, and aircraft radio and aeronautical telecommunications stations. To collectand receive charges and fees for the registration of aircraft and for the issuance and/or renewal of licenses or certificates for aircraft, aircraft engines, propellers and appliances, and airmen as provided in this Act.

(16) To fix the reasonable charges to be imposed in the use of privately owned air navigation facilities and aerodromes.

(17) To impose fines and/or civil penalties and make compromises in respect thereto.

(18) To adopt a system for registration of aircraft as hereinafter provided.

(19) To participate actively with the largest possible degree in the development of international standardization of practices in aviation matters important to safe, expeditious, and easy navigation, and to implement as far as practicable the international standards, recommended practices, and policies adopted by appropriate international aeronautical agencies.

(20) To exercise and perform itspowers and duties under this Act consistent with any obligation assumed by the Republic of the Philippines in any treaty, convention or agreement on civil aviation matters.

(21) To cooperate, assist and coordinate with any research and technical agency of the Government on matters relating to research and technical studies on design, materials, workmanship, construction, performance, maintenance and operation of aircraft, aircraft engines, propellers, appliances, and air navigation facilities

including aircraft fuel and oil: Provided, That nothing in this Act shall be construed to authorize the duplication of the laboratory research, activities or technical studies of any existing governmental agency.

(22) To designate such prohibited and danger areas, in consonance with the requirements of the international aeronautical agencies and national security.

(23) To issue, deny, cancel or revoke any certificate, permit or license pertaining to aircraft, airmen, and air agencies: Provided, That any order denying, cancelling, revoking the certificate, permit or license may be appealed to the Civil Aeronautics Board, whose decisions shall be final within fifteen days from the dateof notification of such denial, cancellation, or revocation.

(24) To administer, operate, manage, control, maintain and develop the Manila International Airport and all government-owned aerodromes except those controlled or operated by the Armed Forces of the Philippines, including such powers and duties as: (a) to plan, design, construct, equip, expand, improve, repair or alter aerodromes or such structures, improvements, or air navigation facilities; (b) to enter into, make and execute contracts of any kind with any person, firm, or public or private corporation or entity; (c) to acquire, hold, purchase, or lease any personal or real property, right of ways, and easements which may be proper or necessary: Provided, That no real property thus acquired and any other real property of the Civil Aeronautics Administration shall be sold without the approval of the President of the Philippines; (d) to grant to any person, such concession or concession rights on space or property within or upon the aerodrome for purposes essential or appropriate to the operation of the aerodrome upon such terms and conditionsas the Administrator may deem proper: Provided, however, That the exclusive use of any landing strip or runway within the aerodrome shall not be granted to any person; (e) to determine the types of aircraft that may be allowed to use any of the aerodromes under its management and control in the interest of public safety; (f) to prescribe, adopt, establish and enforce such rules and regulations consistent with existing laws, rules and regulations, as may be necessary for the safety, health and welfare of the public within the aerodrome.

(25) To determine, fix, impose, collect and receive landing fees, parking space fees, royalties on sales or deliveries, direct or indirect, to any aircraft for its use of aviation gasoline, oil and lubricants, spare parts, accessories, and supplies, tools, other royalties, fees or rentals for the use of any of the property under its management and control.

As used in this sub-section:

(1) "Landing fees" refer to all charges for the use of any landing strip or runway by any aircraft landing or taking off at an aerodrome.

(2) "Terminal fees" refer to charges for parking at or near the ramp, terminal area, or building, for the purposes of loading or unloading passengers and/or cargo.

(3) "Royalties" refer to all charges based on gross business or sales, or gross or net profit.

(4) "Supplies" include any and all items of whatever nature or description which may be necessary for, or incidental to, the operation of an aircraft.

(26) To grant permit to civil aircraft or persons to carry instrument or photographic device to be used for aerial photography or taking of pictures by photograph or sketching of any part of the Philippines.

On the other hand, the CAAP is anindependent regulatory body with quasi-judicial and quasi-legislative powers and possessing corporate attributes,81 having an authorized capitalstock of fifty billion pesos (P50,000,000,000.00) which shall be fully subscribed by the Republic of the Philippines.82 It is attached to the DOTC only for the purpose of policy coordination.83 While the Director General is responsible for the exercise of all powers and the discharge of all duties including the control over all personnel and activities of the CAAP,84 the latter’s corporate powers are vested in its Board of Directors.85 It enjoys fiscal autonomy to fund its operations.86 With quasi-judicial powers, the Director General has the power and authority to inspect aviation equipment and also from time to time, for any reason, re-inspect or reexamine the same.87 If, as a result of any such re-inspection or reexamination, or if, as a result of any other investigation made by the Director General,he determines that safety in civil aviation or

commercial air transport and the public interest requires, the Director General may issue an order amending, modifying, suspending or revoking, in whole or in part, any airworthiness certificate, airman certificate, air operator certificate or certificate for any airport, school, or approved maintenance organization.88 Possessing quasi-legislative powers, CAAP’s Board may authorize the Director General to issue or amend rules of procedures and practice as may be required, or issue and adopt rules and regulations and other issuances of the ICAO.89 Vested with corporate attributes, said Board, through a resolution, may empower the Director General to enter into, make and execute contracts of any kind with any person, firm, or public or private corporation.90

Moreover, notable under R.A. No. 9497 is the establishment of permanent offices like the (a) Air Traffic Service; (b) Air Navigation Service; (c) Aerodrome Development and Management Service; (d) Administrative and Finance Service;91 (e) the Office of Enforcement and Legal Service;92 and (f) the Flight Standards Inspectorate Service.93 The law also mandated the Director General to organize the Aircraft Accident Investigation and Inquiry Board.94

Furthermore, R.A. No. 9497 manifested the adherence ofthe country to, and the adoption of, the Chicago Convention and ICAO standards95 and other international conventions96 with respect to matters relating to civil aviation.

After comparing the features and functions of the ATO and the CAAP, we find that CAAP indeed assumed the functions of the ATO. However, the overlap in their functions does not mean there was no valid abolition of the ATO.97 The CAAP has new and expanded features and functions which are intended to meetthe growing needs of a globally competitive civil aviation industry, adherent to internationally recognized standards. Thus, in National Land Titles and Deeds Registration Administration v. Civil Service Commission,98

we held that:

if the newly created office has substantially new, different or additional functions, duties or powers, so that itmay be said in fact to create an office different from the one abolished, even though it embraces all or some of the duties of the old office it will be

considered as an abolition of one office and the creation of a new or different one. The same is true if one office is abolished and its duties,for reasons of economy are given to an existing officer or office.

To be precise, the case before us deals only with the issue of abolition and not removal. Besides, petitioner has failed to provide in detail any ATO personnel who had been removed from office on account of R.A. No. 9497.

Apropos then is our ruling in Kapisanan ng mga Kawani ng Energy Regulatory Board v. Barin,99 to wit:

However, abolition of an office and itsrelated positions is different from removal of an incumbent from his office. Abolition and removal are mutually exclusive concepts. From a legal standpoint, there is no occupant in an abolished office. Where there is no occupant, there is no tenure to speak of. Thus, impairment of the constitutional guarantee of security of tenure doesnot arise in the abolition of an office.On the other hand, removal implies that the office and its related positions subsist and that the occupants are merely separated from their positions.

Based on the premise that there was a valid abolition of ATO, in the absence of any bad faith, we rule thatthe ATO employees’ right to security of tenure was not violated.

The Court cannot agree to petitioner’s supposition that there should be automatic absorption of all ATO employees to the CAAP. Indeed, there is no such thing as a vested interest in a public office, let alone an absolute right to hold it. Except constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office or its salary.100 Public office is not property but a "public trust or agency." While their right to due process may be relied upon by public officials to protect their security of tenure which, in a limited sense, is analogous to property,101 such fundamental right to security of tenure cannot be invoked against a valid abolition of office effected by the legislature itself.

However, it bears stressing that former ATO employees are not left without succor. Aside from the retirement packages provided for by

R.A. No. 9497, the same law mandates that former qualified ATO employees should be accorded preference in filling up CAAP plantilla positions. Section 12 of R.A. No. 9497 provides:

SEC. 12. Personnel. – Qualified existing personnel of the Air Transportation Office (ATO) shall be given preference in the filling up of plantilla positions created inthe Authority, subject to existing civil service rules and regulations.

This preference is resonated in Section 59(b), Rule IX of the IRR, which provides:

SECTION 59. Abolition of the Air Transportation Office.

x x x x

b. Qualified Air Transportation Office (ATO) personnel shall be given preference in the filling-up of CAAP plantilla positions subject to existing civil service rules and regulations.

Inasmuch as we accorded respect to the mandate of the law in abolishing the ATO, such preference in favor of qualified ATO employees, subject to existing civil service rules and regulations, should likewise be strictly heeded in favor of the said employees. All respondents must abide by this directive. No less than R.A. No. 9497 requires it.

Finally, we resolve the third issue in the negative.

A petition for prohibition will prosper only if grave abuse of discretion is manifested.1avvphi1 Mere abuse ofdiscretion is not enough; it must be grave. The term grave abuse of discretion is defined as a capricious and whimsical exercise of judgment so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, as where the power is exercised in an arbitrary and despotic manner because of passion or hostility.102

We hold that there is no grave abuse of discretion when Section 60 of the IRR provided for a "hold-over" status on the part of ATO employees.

A careful perusal of Section 86 of R.A. No. 9497 reveals that the transfer of ATO personnel, unless they opted to retire from the service, to the CAAP implies the application of the hold-over principle. There being no express, much less implied prohibition of the application of the hold-over principle in R.A. No. 9497 per se, such proviso in the latter’s IRR does not amount to grave abuse of discretion.

In Lecaroz v. Sandiganbayan,103 we held:

Absent an express or implied constitutional or statutory provision to the contrary, an officer is entitled to stay in office until his successor is appointed or chosen and has qualified.The legislative intent of not allowing holdover must be clearly expressed or at least implied in the legislative enactment, otherwise it is reasonable to assume that the law-making body favors the same.

The reason for the application of the hold-over principle is clearly stated also in Lecaroz,104 to wit:

Indeed, the law abhors a vacuum in public offices, and courts generally indulge in the strong presumption against a legislative intent to create, by statute, a condition which may result in an executive or administrative office becoming, for any period of time, wholly vacant or unoccupied by one lawfully authorized to exercise its functions. This is founded on obvious considerations ofpublic policy, for the principle of holdover is specifically intended to prevent public convenience from suffering because of a vacancy and to avoid a hiatus in the performance of government functions.

Indeed, the application of the hold-over principle preserves continuity in the transaction of official business and prevents a hiatus in government. Thus, cases of extreme necessity justify the application of the hold-over principle.105

Petitioner itself states and this Court, without doubt, agrees that the CAAP is an agency highly imbued with public interest. 1âwphi1 It is of rational inference that a hiatus therein would be disastrous not only to the economy, tourism and trade of the country but more so on the safety and security of aircraft passengers, may they be Filipino citizens or foreign nationals.

A final note.

On April 9, 2014, based on a March 2014 FAA review of the CAAP, the FAA opined that the Republic ofthe Philippines complies with the international safety standards set by the ICAO and has been granted a Category 1 rating.106 The European Union also lifted the ban on Philippine carriers.107 Thus, it cannot be ignored that the creation of the CAAP through R.A. No. 9497, in one way or another, helped in upgrading the country’s status in the arena of civil aviation. Absent any violation of the Constitution and the other pertinent laws, rules and regulations, this Court would not hinder in the continuous growth and improvement of the civil aviation industry of the country.

WHEREFORE, the present petition for prohibition with prayer for injunctive reliefs is DISMISSED.

No pronouncement as to costs.

SO ORDERED.

MARTIN S. VILLARAMA, JR.Associate Justice

WE CONCUR:

(On official leave)MARIA LOURDES P.A. SERENO*Chief Justice

ANTONIO T. CARPIO**

Acting Chief JusticePRESBITERO J. VELASCO, JR.

Associate Justice

TERESITA J. LEONARDO-DE CASTROAssociate Justice

ARTURO D. BRIONAssociate Justice

(On official leave)DIOSDADO M. PERALTA*

Associate Justice

(On official leave)LUCAS P. BERSAMIN

Associate Justice

MARIANO C. DEL CASTILLOAssociate Justice

JOSE PORTUGAL PEREZAssociate Justice

(No Part)JOSE CATRAL MENDOZA***

Associate Justice

BIENVENIDO L. REYESAssociate Justice

ESTELA M. PERLAS-BERNABEAssociate Justice

MARVIC M.V.F. LEONENAssociate Justice

FRANCIS H. JARDELEZAAssociate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the 1987 Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

ANTONIO T. CARPIOActing Chief Justice

Footnotes

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. 203974               April 22, 2014

AURELIO M. UMALI, Petitioner, vs.COMMISSION ON ELECTIONS, JULIUS CESAR V. VERGARA, and THE CITY GOVERNMENT OF CABANATUAN, Respondents.

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

G.R. No. 204371

J.V. BAUTISTA, Petitioner, vs.COMMISSION ON ELECTIONS, Respondent.

D E C I S I O N

VELASCO, JR., J.:

Before the Court is the consolidated case for Petition for Certiorari and Prohibition with prayer for injunctive relief, docket as G.R. No. 203974, assailing Minute Resolution No. 12-07971 and Minute Resolution No. 12-09252 dated September 11, 2012 and October 16, 2012, respectively, both promulgated by public respondent Commission on Elections (COMELEC), and Petition for Mandamus, docketed G.R. No. 204371, seeking to compel public respondent to implement the same.

The Facts

On July 11, 2011, the Sangguniang Panglungsod of Cabanatuan City passed Resolution No. 183-2011, requesting the President to declare the conversion of Cabanatuan City from a component city of the province of Nueva Ecija into a highly urbanized city (HUC). Acceding to the request, the President issued Presidential Proclamation No. 418, Series of 2012, proclaiming the City of Cabanatuan as an HUC subject to "ratification in a plebiscite by the qualified voters therein, as provided for in Section 453 of the Local Government Code of 1991."

Respondent COMELEC, acting on the proclamation, issued the assailed Minute Resolution No. 12-0797 which reads:

WHEREFORE, the Commission RESOLVED, as it hereby RESOLVES, that for purposes of the plebiscite for the conversion of Cabanatuan City from component city to highly-urbanized city, only those registered residents of Cabanatuan City should participate in the said plebiscite.

The COMELEC based this resolution on Sec. 453 of the Local Government Code of 1991 (LGC), citing conversion cases involving Puerto Princesa City in Palawan, Tacloban City in Southern Leyte, and Lapu-Lapu City in Cebu, where only the residents of the city proposed to be converted were allowed to vote in the corresponding plebiscite.

In due time, petitioner Aurelio M. Umali, Governor of Nueva Ecija, filed a Verified Motion for Reconsideration, maintaining that the proposed conversion in question will necessarily and directly affect the mother province of Nueva Ecija. His main argument is that Section 453 of the LGC should be interpreted in conjunction with Sec.

10, Art. X of the Constitution. He argues that while the conversion in question does not involve the creation of a new or the dissolution of an existing city, the spirit of the Constitutional provision calls for the people of the local government unit (LGU) directly affected to vote in a plebiscite whenever there is a material change in their rights and responsibilities. The phrase "qualified voters therein" used in Sec. 453 of the LGC should then be interpreted to refer to the qualified voters of the units directly affected by the conversion and not just those in the component city proposed to be upgraded. Petitioner Umali justified his position by enumerating the various adverse effects of the Cabanatuan City’s conversion and how it will cause material change not only in the political and economic rights of the city and its residents but also of the province as a whole.

To the Verified Motion for Reconsideration, private respondent Julius Cesar Vergara, city mayor of Cabanatuan, interposed an opposition on the ground that Sec. 10, Art. X does not apply to conversions, which is the meat of the matter. He likewise argues that a specific provision of the LGC, Sec. 453, as couched, allows only the qualified voters of Cabanatuan City to vote in the plebiscite. Lastly, private respondent pointed out that when Santiago City was converted in 1994 from a municipality to an independent component city pursuant to Republic Act No. (RA) 7720, the plebiscite held was limited to the registered voters of the then municipality of Santiago.

Following a hearing conducted on October 4, 2012,3 the COMELEC En Banc on October 16, 2012, in E.M No. 12-045 (PLEB), by a vote of 5-24 ruled in favor of respondent Vergara through the assailed Minute Resolution 12-0925. The dispositive portion reads:

The Commission, taking into consideration the arguments of counsels including the Reply-memorandum of Oppositor, after due deliberation, RESOLVED, as it hereby RESOLVES, as follows:

1) To DENY the Motion for Reconsideration of oppositor Governor Aurelio M. Umali; and

2) To SCHEDULE the conduct of Plebiscite for the conversion of Cabanatuan City from component city into highly-urbanized city with registered residents only of Cabanatuan City to participate in said

plebiscite.

Let the Deputy Executive Director for Operations implement this resolution.

SO ORDERED.

Hence, the Petition for Certiorari with prayer for injunctive relief, docketed as G.R. No. 203974, on substantially the same arguments earlier taken by petitioner Umali before the poll body. On the other hand, public respondent COMELEC, through the Office of the Solicitor General, maintained in its Comment that Cabanatuan City is merely being converted from a component city into an HUC and that the political unit directly affected by the conversion will only be the city itself. It argues that in this instance, no political unit will be created, merged with another, or will be removed from another LGU, and that no boundaries will be altered. The conversion would merely reinforce the powers and prerogatives already being exercised by the city, with the political unit’s probable elevation to that of an HUC as demanded by its compliance with the criteria established under the LGC. Thus, the participation of the voters of the entire province in the plebiscite will not be necessary.

Private respondent will later manifest that it is adopting the Comment of the COMELEC.

Meanwhile, on October 25, 2012, respondent COMELEC promulgated Resolution No. 9543, which adopted a calendar of activities and periods of prohibited acts in connection with the conversion of Cabanatuan City into an HUC. The Resolution set the conduct of the plebiscite on December 1, 2012. Thereafter, a certain Dr. Rodolfo B. Punzalan filed a Petition for Declaratory Relief which was raffled to the Regional Trial Court (RTC), Branch 40 in Palayan City. In the said case, Punzalan prayed that Minute Resolution No. 12-0797 be declared unconstitutional, that the trial court decree that all qualified voters of the province of Nueva Ecija be included in the plebiscite, and that a Temporary Restraining Order (TRO) be issued enjoining public respondent from implementing the questioned resolution. On October 19, 2012, the RTC granted the prayer for a TRO.

On November 6, 2012, public respondent through Minute Resolution No. 12-0989 suspended the preparations for the event in view of the TRO issued by the RTC. On November 27, 2012, the plebiscite was once again rescheduled to give way to the May 13, 2013 national, local and ARMM regional elections as per Resolution No. 9563.

After this development, petitioner J.V. Bautista, on December 3, 2012, filed a case before this Court for Mandamus, docketed as G.R. No. 204371, praying that public respondent be ordered to schedule the plebiscite either on December 15 or 22, 2012. Petitioner Bautista argued that since the TRO issued by the RTC has already expired, the duty of the public respondent to hold the plebiscite has become mandatory and ministerial. Petitioner Bautista also alleged that the delay in holding the plebiscite is inexcusable given the requirement that it should be held within a period of 120 days form the date of the President’s declaration.

In its Comment to the Bautista petition, public respondent justified its position by arguing that mandamus will not issue to enforce a right which is in substantial dispute. With all the legal conflicts surrounding the case, it cannot be said that there is a clear showing of petitioner Bautista’s entitlement to the relief sought. Respondent COMELEC likewise relied on Sec. 5 of the Omnibus Election Code to justify the postponements, citing incidents of violence that ensued in the locality during the plebiscite period.

After the conclusion of the 2013 elections, public respondent issued Resolution No. 1353 scheduling the plebiscite to January 25, 2014. However, a TRO was issued by this Court on January 15, 2014 in G.R. No. 203974 to suspend the conduct of the plebiscite for Cabanatuan City’s conversion. Given the intertwining factual milieu of the two petitions before the Court, both cases were consolidated on March 18, 2014.

The Issue

The bone of contention in the present controversy boils down to whether the qualified registered voters of the entire province of Nueva Ecija or only those in Cabanatuan City can participate in the plebiscite called for the conversion of Cabanatuan City from a

component city into an HUC.

Resolving the Petition for Certiorari either way will necessarily render the Petition for Mandamus moot and academic for ultimately, the public respondent will be ordered to hold the plebiscite. The only variation will be as regards its participants.

The Court’s Ruling

The Petition for Certiorari is meritorious.

Sec. 453 of the LGC should be interpreted in accordance with Sec. 10, Art. X of the Constitution

Petitioner Umali asseverates that Sec. 10, Art. X of the Constitution should be the basis for determining the qualified voters who will participate in the plebiscite to resolve the issue. Sec. 10, Art. X reads:

Section 10, Article X. – 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 approval by a majority of the votes cast in a plebiscite in the political units directly affected. (emphasis supplied)

Petitioner Umali elucidates that the phrase "political units directly affected" necessarily encompasses not only Cabanatuan City but the entire province of Nueva Ecija. Hence, all the registered voters in the province are qualified to cast their votes in resolving the proposed conversion of Cabanatuan City.

On the other hand, respondents invoke Sec. 453 of the LGC to support their claim that only the City of Cabanatuan should be allowed to take part in the voting. Sec. 453 states:

Section 453. Duty to Declare Highly Urbanized Status. – It shall be the duty of the President to declare a city as highly urbanized within thirty (30) days after it shall have met the minimum requirements prescribed in the immediately preceding Section, upon proper application therefor and ratification in a plebiscite by the qualified voters therein. (emphasis supplied)

Respondents take the phrase "registered voters therein" in Sec. 453 as referring only to the registered voters in the city being converted, excluding in the process the voters in the remaining towns and cities of Nueva Ecija.

Before proceeding to unravel the seeming conflict between the two provisions, it is but proper that we ascertain first the relationship between Sec. 10, Art. X of the Constitution and Sec. 453 of the LGC.

First of all, we have to restate the general principle that legislative power cannot be delegated. Nonetheless, the general rule barring delegation is subject to certain exceptions allowed in the Constitution, namely:

(1) Delegation by Congress to the President of the power to fix "tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government" under Section 28(2) of Article VI of the Constitution; and

(2) Delegation of emergency powers by Congress to the President "to exercise powers necessary and proper to carry out a declared national policy" in times of war and other national emergency under Section 23(2) of Article VI of the Constitution.

The power to create, divide, merge, abolish or substantially alter boundaries of provinces, cities, municipalities or barangays, which is pertinent in the case at bar, is essentially legislative in nature.5 The framers of the Constitution have, however, allowed for the delegation of such power in Sec. 10, Art. X of the Constitution as long as (1) the criteria prescribed in the LGC is met and (2) the creation, division, merger, abolition or the substantial alteration of the boundaries is subject to the approval by a majority vote in a plebiscite.

True enough, Congress delegated such power to the Sangguniang Panlalawigan or Sangguniang Panlungsod to create barangays pursuant to Sec. 6 of the LGC, which provides:

Section 6. Authority to Create Local Government Units. - A local government unit may be created, divided, merged, abolished, or its boundaries substantially altered either by law enacted by Congress in

the case of a province, city, municipality, or any other political subdivision, or by ordinance passed by the sangguniang panlalawigan or sangguniang panlungsod concerned in the case of a barangay located within its territorial jurisdiction, subject to such limitations and requirements prescribed in this Code." (emphasis supplied)

The guidelines for the exercise of this authority have sufficiently been outlined by the various LGC provisions detailing the requirements for the creation of barangays6, municipalities7, cities8, and provinces9. Moreover, compliance with the plebiscite requirement under the Constitution has also been directed by the LGC under its Sec. 10, which reads:

Section 10. Plebiscite Requirement. – No creation, division, merger, abolition, or substantial alteration of boundaries of local government units shall take effect unless approved by a majority of the votes cast in a plebiscite called for the purpose in the political unit or units directly affected." (emphasis supplied)

With the twin criteria of standard and plebiscite satisfied, the delegation to LGUs of the power to create, divide, merge, abolish or substantially alter boundaries has become a recognized exception to the doctrine of non-delegation of legislative powers.

Likewise, legislative power was delegated to the President under Sec. 453 of the LGC quoted earlier, which states:

Section 453. Duty to Declare Highly Urbanized Status. – It shall be the duty of the President to declare a city as highly urbanized within thirty (30) days after it shall have met the minimum requirements prescribed in the immediately preceding Section, upon proper application therefor and ratification in a plebiscite by the qualified voters therein.

In this case, the provision merely authorized the President to make a determination on whether or not the requirements under Sec. 45210 of the LGC are complied with. The provision makes it ministerial for the President, upon proper application, to declare a component city as highly urbanized once the minimum requirements, which are based on certifiable and measurable indices under Sec. 452, are satisfied.

The mandatory language "shall" used in the provision leaves the President with no room for discretion.

In so doing, Sec. 453, in effect, automatically calls for the conduct of a plebiscite for purposes of conversions once the requirements are met. No further legislation is necessary before the city proposed to be converted becomes eligible to become an HUC through ratification, as the basis for the delegation of the legislative authority is the very LGC.

In view of the foregoing considerations, the Court concludes that the source of the delegation of power to the LGUs under Sec. 6 of the LGC and to the President under Sec. 453 of the same code is none other than Sec. 10, Art. X of the Constitution.

Respondents, however, posit that Sec. 453 of the LGC is actually outside the ambit of Sec. 10, Art. X of the Constitution, considering that the conversion of a component city to an HUC is not "creation, division, merge, abolition or substantial alternation of boundaries" encompassed by the said constitutional provision.

This proposition is bereft of merit.

First, the Court’s pronouncement in Miranda vs. Aguirre11 is apropos and may be applied by analogy. While Miranda involves the downgrading, instead of upgrading, as here, of an independent component city into a component city, its application to the case at bar is nonetheless material in ascertaining the proper treatment of conversions. In that seminal case, the Court held that the downgrading of an independent component city into a component city comes within the purview of Sec. 10, Art. X of the Constitution.

In Miranda, the rationale behind the afore-quoted constitutional provision and its application to cases of conversion were discussed thusly:

A close analysis of the said constitutional provision will reveal that the creation, division, merger, abolition or substantial alteration of boundaries of local government units involve a common denominator - - - material change in the political and economic rights of the local government units directly affected as well as the people therein. It is

precisely for this reason that the Constitution requires the approval of the people "in the political units directly affected." It is not difficult to appreciate the rationale of this constitutional requirement. The 1987 Constitution, more than any of our previous Constitutions, gave more reality to the sovereignty of our people for it was borne out of the people power in the 1986 EDSA revolution. Its Section 10, Article X addressed the undesirable practice in the past whereby local government units were created, abolished, merged or divided on the basis of the vagaries of politics and not of the welfare of the people. Thus, the consent of the people of the local government unit directly affected was required to serve as a checking mechanism to any exercise of legislative power creating, dividing, abolishing, merging or altering the boundaries of local government units. It is one instance where the people in their sovereign capacity decide on a matter that affects them - - - direct democracy of the people as opposed to democracy thru people’s representatives. This plebiscite requirement is also in accord with the philosophy of the Constitution granting more autonomy to local government units.12

It was determined in the case that the changes that will result from the conversion are too substantial that there is a necessity for the plurality of those that will be affected to approve it. Similar to the enumerated acts in the constitutional provision, conversions were found to result in material changes in the economic and political rights of the people and LGUs affected. Given the far-reaching ramifications of converting the status of a city, we held that the plebiscite requirement under the constitutional provision should equally apply to conversions as well. Thus, RA 852813 was declared unconstitutional in Miranda on the ground that the law downgraded Santiago City in Isabela without submitting it for ratification in a plebiscite, in contravention of Sec. 10, Art. X of the Constitution.

Second, while conversion to an HUC is not explicitly provided in Sec. 10, Art. X of the Constitution we nevertheless observe that the conversion of a component city into an HUC is substantial alteration of boundaries.

As the phrase implies, "substantial alteration of boundaries" involves and necessarily entails a change in the geographical configuration of a local government unit or units. However, the phrase "boundaries"

should not be limited to the mere physical one, referring to the metes and bounds of the LGU, but also to its political boundaries. It also connotes a modification of the demarcation lines between political subdivisions, where the LGU’s exercise of corporate power ends and that of the other begins. And as a qualifier, the alteration must be "substantial" for it to be within the ambit of the constitutional provision.

Pertinent is Art. 12(c) of the LGC’s Implementing Rules and Regulations, which reads:

Art. 12. Conversion of a Component City into a Highly Urbanized City. –

x x x x

(c) Effect of Conversion – The conversion of a component city into a highly-urbanized city shall make it independent of the province where it is geographically located. (emphasis added)

Verily, the upward conversion of a component city, in this case Cabanatuan City, into an HUC will come at a steep price. It can be gleaned from the above-cited rule that the province will inevitably suffer a corresponding decrease in territory brought about by Cabanatuan City’s gain of independence. With the city’s newfound autonomy, it will be free from the oversight powers of the province, which, in effect, reduces the territorial jurisdiction of the latter. What once formed part of Nueva Ecija will no longer be subject to supervision by the province. In more concrete terms, Nueva Ecija stands to lose 282.75 sq. km. of its territorial jurisdiction with Cabanatuan City’s severance from its mother province. This is equivalent to carving out almost 5% of Nueva Ecija’s 5,751.3 sq. km. area. This sufficiently satisfies the requirement that the alteration be "substantial."

Needless to stress, the alteration of boundaries would necessarily follow Cabanatuan City’s conversion in the same way that creations, divisions, mergers, and abolitions generally cannot take place without entailing the alteration. The enumerated acts, after all, are not mutually exclusive, and more often than not, a combination of these acts attends the reconfiguration of LGUs.

In light of the foregoing disquisitions, the Court rules that conversion to an HUC is substantial alternation of boundaries governed by Sec. 10, Art. X and resultantly, said provision applies, governs and prevails over Sec. 453 of the LGC.

Moreover, the rules of statutory construction dictate that a particular provision should be interpreted with the other relevant provisions in the law The Court finds that it is actually Sec. 10 of the LGC which is undeniably the applicable provision on the conduct of plebiscites. The title of the provision itself, "Plebiscite Requirement", makes this obvious. It requires a majority of the votes cast in a plebiscite called for the purpose in the political unit or units directly affected. On the other hand, Sec. 453 of the LGC, entitled "Duty to Declare Highly Urbanized Status", is only on the duty to declare a city as highly urbanized. It mandates the Office of the President to make the declaration after the city has met the requirements under Sec. 452, and upon proper application and ratification in a plebiscite. The conduct of a plebiscite is then a requirement before a declaration can be made. Thus, the Court finds that Sec. 10 of the LGC prevails over Sec. 453 of the LGC on the plebiscite requirement.

We now take the bull by the horns and resolve the issue whether Sec. 453 of the LGC trenches on Sec. 10, Art. X of the Constitution.

Hornbook doctrine is that neither the legislative, the executive, nor the judiciary has the power to act beyond the Constitution’s mandate. The Constitution is supreme; any exercise of power beyond what is circumscribed by the Constitution is ultra vires and a nullity. As elucidated by former Chief Justice Enrique Fernando in Fernandez v. Cuerva:14

Where the assailed legislative or executive act is found by the judiciary to be contrary to the Constitution, it is null and void. As the new Civil Code puts it: "When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern." Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution. The above provision of the civil Code reflects the orthodox view that an unconstitutional act, whether legislative or executive, is not a law, confers no rights, imposes no duties, and

affords no protection. x x x

Applying this orthodox view, a law should be construed in harmony with and not in violation of the Constitution.15 In a long line of cases, the cardinal principle of construction established is that a statute should be interpreted to assure its being in consonance with, rather than repugnant to, any constitutional command or prescription.16 If there is doubt or uncertainty as to the meaning of the legislative, if the words or provisions are obscure or if the enactment is fairly susceptible of two or more constitution, that interpretation which will avoid the effect of unconstitutionality will be adopted, even though it may be necessary, for this purpose, to disregard the more usual or apparent import of the language used.17

Pursuant to established jurisprudence, the phrase "by the qualified voters therein" in Sec. 453 should be construed in a manner that will avoid conflict with the Constitution. If one takes the plain meaning of the phrase in relation to the declaration by the President that a city is an HUC, then, Sec. 453 of the LGC will clash with the explicit provision under Sec. 10, Art. X that the voters in the "political units directly affected" shall participate in the plebiscite. Such construction should be avoided in view of the supremacy of the Constitution. Thus, the Court treats the phrase "by the qualified voters therein" in Sec. 453 to mean the qualified voters not only in the city proposed to be converted to an HUC but also the voters of the political units directly affected by such conversion in order to harmonize Sec. 453 with Sec. 10, Art. X of the Constitution.

The Court finds that respondents are mistaken in construing Sec. 453 in a vacuum. Their interpretation of Sec. 453 of the LGC runs afoul of Sec. 10, Art. X of the Constitution which explicitly requires that all residents in the "political units directly affected" should be made to vote.

Respondents make much of the plebiscites conducted in connection with the conversion of Puerto Princesa City, Tacloban City and Lapu-Lapu City where the ratification was made by the registered voters in said cities alone. It is clear, however, that the issue of who are entitled to vote in said plebiscites was not properly raised or brought up in an actual controversy. The issue on who will vote in a plebiscite

involving a conversion into an HUC is a novel issue, and this is the first time that the Court is asked to resolve the question. As such, the past plebiscites in the aforementioned cities have no materiality or relevance to the instant petition. Suffice it to say that conversion of said cities prior to this judicial declaration will not be affected or prejudiced in any manner following the operative fact doctrine―that “the actual existence of a statute prior to such a determination is an operative fact and may have consequences which cannot always be erased by a new judicial declaration.”18

The entire province of Nueva Ecija will be directlyaffected by Cabanatuan City’s conversion

After the Court has resolved the seeming irreconcilability of Sec. 10, Art. X of the Constitution and Sec. 453 of the LGC, it is now time to elucidate the meaning of the phrase "political units directly affected" under Sec. 10, Art. X.

a. "Political units directly affected" defined

In identifying the LGU or LGUs that should be allowed to take part in the plebiscite, what should primarily be determined is whether or not the unit or units that desire to participate will be "directly affected" by the change. To interpret the phrase, Tan v. COMELEC19 and Padilla v. COMELEC20 are worth revisiting.

We have ruled in Tan, involving the division of Negros Occidental for the creation of the new province of Negros del Norte, that the LGUs whose boundaries are to be altered and whose economy would be affected are entitled to participate in the plebiscite. As held:

It can be plainly seen that the aforecited constitutional provision makes it imperative that there be first obtained "the approval of a majority of votes in the plebiscite in the unit or units affected" whenever a province is created, divided or merged and there is substantial alteration of the boundaries. It is thus inescapable to conclude that the boundaries of the existing province of Negros Occidental would necessarily be substantially altered by the division of its existing boundaries in order that there can be created the proposed new province of Negros del Norte. Plain and simple logic will demonstrate than that two political units would be affected.

The first would be the parent province of Negros Occidental because its boundaries would be substantially altered. The other affected entity would be composed of those in the area subtracted from the mother province to constitute the proposed province of Negros del Norte.21

x x x x

To form the new province of Negros del Norte no less than three cities and eight municipalities will be subtracted from the parent province of Negros Occidental. This will result in the removal of approximately 2,768.4 square kilometers from the land area of an existing province whose boundaries will be consequently substantially altered. It becomes easy to realize that the consequent effects of the division of the parent province necessarily will affect all the people living in the separate areas of Negros Occidental and the proposed province of Negros del Norte. The economy of the parent province as well as that of the new province will be inevitably affected, either for the better or for the worse. Whatever be the case, either or both of these political groups will be affected and they are, therefore, the unit or units referred to in Section 3 of Article XI of the Constitution which must be included in the plebiscite contemplated therein.22 (emphasis added)

Sec. 3, Art. XI of the 1973 Constitution, as invoked in Tan, states:

SEC. 3. No province, city, municipality or barrio 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 in a plebiscite in the unit or units affected. (emphasis added)

Despite the change in phraseology compared to what is now Sec. 10, Art. X, we affirmed our ruling in Tan in the latter case of Padilla. As held, the removal of the phrase "unit or" only served to sustain the earlier finding that what is contemplated by the phase "political units directly affected" is the plurality of political units which would participate in the plebiscite. As reflected in the journal of the Constitutional Commission:23

Mr. Maambong: While we have already approved the deletion of "unit

or," I would like to inform the Committee that under the formulation in the present Local Government Code, the words used are actually "political unit or units." However, I do not know the implication of the use of these words. Maybe there will be no substantial difference, but I just want to inform the Committee about this.

Mr. Nolledo: Can we not adhere to the original "unit or units"? Will there be no objection on the part of the two Gentlemen from the floor?

Mr. Davide: I would object. I precisely asked for the deletion of the words "unit or" because in the plebiscite to be conducted, it must involve all the units affected. If it is the creation of a barangay plebiscite because it is affected. It would mean a loss of a territory. (emphasis added)

The same sentiment was shared by the Senate during its deliberations on Senate Bill No. 155––the predecessor of the LGC––thus:

Senator Guingona. Can we make that clearer by example? Let us assume that a province has municipalities and there is a merger of two municipalities. Would this therefore mean that the plebiscite will be conducted within the two merged municipalities and not in the eight other municipalities?

Senator Pimentel. The whole province, Mr. President, will be affected, and that is the reason we probably have to involve the entire province.

Senator Guingona. So the plebiscite will not be held only in the two municipalities which are being merged, but the entire province will now have to undergo.

Senator Pimentel. I suppose that was the ruling in the Negros del Norte case.

Senator Guingona. Supposing it refers to barangays, will the entire municipality have to vote? There are two barangays being merged, say, out of 100 barangays. Would the entire municipality have to participate in the plebiscite?

Senator Pimentel. Yes, Mr. President, because the municipality is affected directly by the merger of two of its barangay.

Senator Guingona. And, if, out of 100 barangay, 51 are being merged, abolished, whatever, would the rest of the municipality not participate in the plebiscite?

Senator Pimentel. Do all the 51 barangay that the Gentleman mentioned, Mr. President, belong to one municipality?

Senator Guingona. Yes.

Senator Pimentel. Then it will only involve the municipality where the 51 barangays belong.

Senator Guingona. Yes. So, the entire municipality will now have to undergo a plebiscite.

Senator Pimentel. That is correct, Mr. President.

Senator Guingona. In the earlier example, if it is only a merger of two municipalities, let us say, in a province with 10 municipalities – the entire province – will the other municipalities although not affected also have to participate in the plebiscite?

Senator Pimentel. Yes. The reason is that the municipalities are within the territorial boundaries of the province itself, it will have to be altered as a result of the two municipalities that the Gentleman mentioned.24

In the more recent case of Miranda, the interpretation in Tan and Padilla was modified to include not only changes in economic but also political rights in the criteria for determining whether or not an LGU shall be considered "directly affected." Nevertheless, the requirement that the plebiscite be participated in by the plurality of political units directly affected remained.

b. Impact on Economic Rights

To recall, it was held in Miranda that the changes that will result in the downgrading of an LGU from an independent component city to a

component city cannot be categorized as insubstantial, thereby necessitating the conduct of a plebiscite for its ratification. In a similar fashion, herein petitioner Umali itemized the adverse effects of Cabanatuan City’s conversion to the province of Nueva Ecija to justify the province’s participation in the plebiscite to be conducted.

Often raised is that Cabanatuan City’s conversion into an HUC and its severance from Nueva Ecija will result in the reduction of the Internal Revenue Allotment (IRA) to the province based on Sec. 285 of the LGC. The law states:

Section 285. Allocation to Local Government Units. - The share of local government units in the internal revenue allotment shall be collected in the following manner:

(a) Provinces - Twenty-three percent (23%);

(b) Cities - Twenty-three percent (23%);

(c) Municipalities - Thirty-four percent (34%); and

(d) Barangays - Twenty percent (20%)

Provided, however, That the share of each province, city, and municipality shall be determined on the basis of the following formula:

(a) Population - Fifty percent (50%);

(b) Land Area - Twenty-five percent (25%); and

(c) Equal sharing - Twenty-five percent (25%)

In our earlier disquisitions, we have explained that the conversion into an HUC carries the accessory of substantial alteration of boundaries and that the province of Nueva Ecija will, without a doubt, suffer a reduction in territory because of the severance of Cabanatuan City. The residents of the city will cease to be political constituencies of the province, effectively reducing the latter’s population. Taking this decrease in territory and population in connection with the above formula, it is conceded that Nueva Ecija will indeed suffer a reduction in IRA given the decrease of its multipliers’ values. As assessed by

the Regional Director of the Department of Budget and Management (DBM) for Region III:25

Basis for IRAComputation

Province ofNueva Ecija

CabanatuanCity

Province ofNueva Ecija Netof Cabanatuan

City

No. of PopulationCY 2007 Census

1,843,853 259,267 259,267

Land Area(sq. km.)

5,751.33 282.75 5,468.58

IRA Share ofNueva Ecija

Actual IRAShare

Estimated IRAshare excluding

CabanatuanCity

Reduction

Based onPopulation

P800,772,618.45 P688,174,751.66 P112,597,866.79

Based on LandArea

P263,470,472.62 P250,517,594.56 P 12,952,878.06

Total P125,550,744.85

Clear as crystal is that the province of Nueva Ecija will suffer a substantial reduction of its share in IRA once Cabanatuan City attains autonomy. In view of the economic impact of Cabanatuan City’s conversion, petitioner Umali’s contention, that its effect on the province is not only direct but also adverse, deserves merit.

Moreover, his claim that the province will lose shares in provincial taxes imposed in Cabanatuan City is well-founded. This is based on Sec. 151 of the LGC, which states:

SECTION 151. Scope of Taxing Powers. – Except as otherwise provided in this Code, the city, may levy the taxes, fees, and charges which the province or municipality may impose: Provided, however,

That the taxes, fees and charges levied and collected by highly urbanized and independent component cities shall accrue to them and distributed in accordance with the provisions of this Code. (emphasis added)

Once converted, the taxes imposed by the HUC will accrue to itself. Prior to this, the province enjoys the prerogative to impose and collect taxes such as those on sand, gravel and other quarry resources,26

professional taxes,27 and amusement taxes28 over the component city. While, it may be argued that this is not a derogation of the province’s taxing power because it is in no way deprived of its right to collect the mentioned taxes from the rest of its territory, the conversion will still reduce the province’s taxing jurisdiction, and corollary to this, it will experience a corresponding decrease in shares in local tax collections. This reduction in both taxing jurisdiction and shares poses a material and substantial change to the province’s economic rights, warranting its participation in the plebiscite.

To further exemplify the impact of these changes, a perusal of Secs. 452(a) and 461(a) of the LGC is in order, viz:

Section 452. Highly Urbanized Cities.

(a) Cities with a minimum population of two hundred thousand (200,000) inhabitants as certified by the National Statistics Office, and within the latest annual income of at least Fifty Million Pesos (P50,000,000.00) based on 1991 constant prices, as certified by the city treasurer, shall be classified as highly urbanized cities.

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 (P20,000,000.00) based on 1991 constant 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.

A component city’s conversion into an HUC and its resultant autonomy from the province is a threat to the latter’s economic viability. Noteworthy is that the income criterion for a component city to be converted into an HUC is higher than the income requirement for the creation of a province. The ensuing reduction in income upon separation would clearly leave a crippling effect on the province’s operations as there would be less funding to finance infrastructure projects and to defray overhead costs. Moreover, the quality of services being offered by the province may suffer because of looming austerity measures. These are but a few of the social costs of the decline in the province’s economic performance, which Nueva Ecija is bound to experience once its most progressive city of Cabanatuan attains independence.

c. Impact on Political Rights

Aside from the alteration of economic rights, the political rights of Nueva Ecija and those of its residents will also be affected by Cabanatuan’s conversion into an HUC. Notably, the administrative supervision of the province over the city will effectively be revoked upon conversion. Secs. 4 and 12, Art. X of the Constitution read:

Sec. 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays shall ensure that the acts of their component units are within the scope of their prescribed powers and functions.

Sec 12. Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial officials.

Duties, privileges and obligations appertaining to HUCs will attach to

Cabanatuan City if it is converted into an HUC. This includes the right to be outside the general supervision of the province and be under the direct supervision of the President. An HUC is not subject to provincial oversight because the complex and varied problems in an HUC due to a bigger population and greater economic activity require greater autonomy.29 The provincial government stands to lose the power to ensure that the local government officials of Cabanatuan City act within the scope of its prescribed powers and functions,30 to review executive orders issued by the city mayor, and to approve resolutions and ordinances enacted by the city council.31 The province will also be divested of jurisdiction over disciplinary cases concerning the elected city officials of the new HUC, and the appeal process for administrative case decisions against barangay officials of the city will also be modified accordingly.32 Likewise, the registered voters of the city will no longer be entitled to vote for and be voted upon as provincial officials.33

In cutting the umbilical cord between Cabanatuan City and the province of Nueva Ecija, the city will be separated from the territorial jurisdiction of the province, as earlier explained. The provincial government will no longer be responsible for delivering basic services for the city residents’ benefit. Ordinances and resolutions passed by the provincial council will no longer cover the city. Projects queued by the provincial government to be executed in the city will also be suspended if not scrapped to prevent the LGU from performing functions outside the bounds of its territorial jurisdiction, and from expending its limited resources for ventures that do not cater to its constituents.1âwphi1

In view of these changes in the economic and political rights of the province of Nueva Ecija and its residents, the entire province certainly stands to be directly affected by the conversion of Cabanatuan City into an HUC. Following the doctrines in Tan and Padilla, all the qualified registered voters of Nueva Ecija should then be allowed to participate in the plebiscite called for that purpose.

Respondents’ apprehension that requiring the entire province to participate in the plebiscite will set a dangerous precedent leading to the failure of cities to convert is unfounded. Their fear that provinces will always be expected to oppose the conversion in order to retain

the city’s dependence is speculative at best. In any event, any vote of disapproval cast by those directly affected by the conversion is a valid exercise of their right to suffrage, and our democratic processes are designed to uphold the decision of the majority, regardless of the motive behind the vote. It is unfathomable how the province can be deprived of the opportunity to exercise the right of suffrage in a matter that is potentially deleterious to its economic viability and could diminish the rights of its constituents. To limit the plebiscite to only the voters of the areas to be partitioned and seceded from the province is as absurd and illogical as allowing only the secessionists to vote for the secession that they demanded against the wishes of the majority and to nullify the basic principle of majority rule.34

WHEREFORE, premises considered, the Petition for Certiorari, docketed as G.R. No. 203974, is hereby GRANTED. COMELEC Minute Resolution No. 12-0797 dated September 11, 2012 and Minute Resolution No. 12-0925 dated October 16, 2012 are hereby declared NULL and VOID. Public respondent COMELEC is hereby enjoined from implementing the said Resolutions. Additionally, COMELEC is hereby ordered to conduct a plebiscite for the purpose of converting Cabanatuan City into a Highly Urbanized City to be participated in by the qualified registered voters of Nueva Ecij a within 120 days from the finality of this Decision. The Petition for Mandamus, docketed as G.R. No. 204371, is hereby DISMISSED.

SO ORDERED.

PRESBITERO J. VELASCO, JR.Associate Justice

WE CONCUR:

I join Dissent of J. LeonenMA. LOURDES P. A. SERENOChief Justice

ANTONIO T. CARPIOAssociate Justice

TERESITA J. LEONARDO-DE CASTROAssociate Justice

ARTURO D. BRIONAssociate Justice

DIOSDADO M. PERALTAAssociate Justice

LUCAS P. BERSAMINAssociate Justice

MARIANO C. DEL CASTILLOAssociate Justice

Took no part.ROBERTO A. ABAD

Associate Justice

I join the Dissent of J. LeonenMARTIN S. VILLARAMA, JR.

Associate Justice

JOSE PORTUGAL PEREZAssociate Justice

I join the dissent of J. LeonenJOSE CATRAL MENDOZA

Associate Justice

BIENVENIDO L. REYESAssociate Justice

ESTELA M. PERLAS-BERNABEAssociate Justice

I dissent. See Separate OpinionMARVIC MARIO VICTOR F. LEONENAssociate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

MA. LOURDES P. A. SERENOChief Justice

CERTIFIED TRUE COPYENRIQUE ESGUERRA-VIDALClerk of CourtOCC-En BancSupreme Court

Footnotes

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. 188179               January 22, 2013

HENRY R. GIRON, Petitioner, vs.COMMISSION ON ELECTIONS,

Respondent,

ALMARIO E. FRANCISCO, FEDERICO S. JONG JR., and RICARDO L. BAES JR., Petitioners-in-Intervention.

D E C I S I O N

SERENO, CJ.:

Before the Court is a special civil action for certiorari and prohibition assailing the constitutionality of Section 12 (Substitution of Candidates) and Section 14 (Repealing Clause) of Republic Act No. (R.A.) 9006, otherwise known as the Fair Election Act. The present Petition also seeks to prohibit the Commission on Elections (COMELEC) from further implementing the aforesaid sections of the Fa1r Election Act, on the ground that these provisions would enable elective officials to gain campaign advantage and allow them to disburse public funds from the time they file their certificates of candidacy until after the elections.

On the one hand, petitioner Henry R. Giron (Giron) asserts that the insertion of Sections 12 and 14 in the Fair Election Act violates Section 26(1), Article VI of the 1987 Constitution, which specifically requires: "Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof." Petitioner avers that these provisions are unrelated to the main subject of the Fair Election Act: the lifting of the political ad ban. Section 12 refers to the treatment of the votes cast for substituted candidates after the official ballots have been printed, while Section 14 pertains to the repeal of Section 67 (Candidates holding elective office) of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code. Section 67 of this law concerns the ipso facto resignation of elective officials immediately after they file their respective certificates of candidacy for an office other than that which they are currently holding in a permanent capacity.

On the other hand, respondent Jose Melo, then chairperson of the COMELEC, opposes the Petition and argues inter alia that this Court has already resolved the matter in Fariñas v. Executive Secretary.1

Almario E. Francisco, Federico S. Jong Jr., and Ricardo L. Baes Jr.

filed their respective petitions-in-intervention,2 which essentially reiterated the ratiocinations of Giron.

Issue

Whether or not the inclusion of Sections 12 and 14 in the Fair Election Act violates Section 26(1), Article VI of the 1987 Constitution, or the "one subject-one title" rule.

Ruling

It is a well-settled rule that courts are to adopt a liberal interpretation in favor of the constitutionality of a legislation,3 as Congress is deemed to have enacted a valid, sensible, and just law.4 Because of this strong presumption, the one who asserts the invalidity of a law has to prove that there is a clear, unmistakable, and unequivocal breach of the Constitution; otherwise, the petition must fail.5

After a thorough review of the arguments raised, we find that petitioner and petitioners-in-intervention were unable to present a compelling reason that would surpass the strong presumption of validity and constitutionality in favor of the Fair Election Act. They have not put forward any gripping justification to reverse our ruling in Fariñas, in which we have already ruled that the title and the objectives of R.A. 9006 are comprehensive enough to include subjects other than the lifting of the ban on the use of media for election propaganda. Below is a reproduction of our exhaustive exposition on the matter in the 10 December 2003 En Banc Decision:6

At the core of the controversy is Section 14, the repealing clause of Rep. Act No. 9006, which provides:

SECTION 14. Repealing Clause. — Sections 67 and 85 of the Omnibus Election Code (Batas Pambansa Blg. 881) and Sections 10 and 11 of Republic Act No. 6646 are hereby repealed. As a consequence, the first proviso in the third paragraph of Section 11 of Republic Act No. 8436 is rendered ineffective. All laws, presidential decrees, executive orders, rules and regulations, or any part thereof inconsistent with the provisions of this Act are hereby repealed or modified or amended accordingly.

The repealed provision, Section 67 of the Omnibus Election Code, quoted earlier, reads:

SECTION 67. Candidates holding elective office.

— Any elective official, whether national or local, running for any office other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

x x x x

The proscription under Section 26(1), Article VI of the Constitution is aimed against the evils of the so-called omnibus bills and log-rolling legislation as well as surreptitious and/or unconsidered encroaches. The provision merely calls for all parts of an act relating to its subject finding expression in its title.

To determine whether there has been compliance with the constitutional requirement that the subject of an act shall be expressed in its title, the Court laid down the rule that —

Constitutional provisions relating to the subject matter and titles of statutes should not be so narrowly construed as to cripple or impede the power of legislation. The requirement that the subject of an act shall be expressed in its title should receive a reasonable and not a technical construction. It is sufficient if the title be comprehensive enough reasonably to include the general object which a statute seeks to effect, without expressing each and every end and means necessary or convenient for the accomplishing of that object. Mere details need not be set forth. The title need not be an abstract or index of the Act.

The title of Rep. Act No. 9006 reads: "An Act to Enhance the Holding of Free, Orderly, Honest, Peaceful and Credible Elections through Fair Election Practices." Section 2 of the law provides not only the declaration of principles but also the objectives thereof:

Sec. 2. Declaration of Principles. — The State shall, during the election period, supervise or regulate the enjoyment or utilization of

all franchises or permits for the operation of media of communication or information to guarantee or ensure equal opportunity for public service, including access to media time and space, and the equitable right to reply, for public information campaigns and for among candidates and assure free, orderly, honest, peaceful and credible elections.

The State shall ensure that bona fide candidates for any public office shall be free from any form of harassment and discrimination.

The Court is convinced that the title and the objectives of Rep. Act No. 9006 are comprehensive enough to include the repeal of Section 67 of the Omnibus Election Code within its contemplation. To require that the said repeal of Section 67 of the Code be expressed in the title is to insist that the title be a complete index of its content.

The purported dissimilarity of Section 67 of the Omnibus Election Code, which imposes a limitation on elective officials who run for an office other than the one they are holding, to the other provisions of Rep. Act No. 9006, which deal with the lifting of the ban on the use of media for election propaganda, does not violate the "one subject-one title" rule. This Court has held that an act having a single general subject, indicated in the title, may contain any number of provisions, no matter how diverse they may be, so long as they are not inconsistent with or foreign to the general subject, and may be considered in furtherance of such subject by providing for the method and means of carrying out the general subject.

x x x x

Moreover, the avowed purpose of the constitutional directive that the subject of a bill should be embraced in its title is to apprise the legislators of the purposes, the nature and scope of its provisions, and prevent the enactment into law of matters which have not received the notice, action and study of the legislators and the public. In this case, it cannot be claimed that the legislators were not apprised of the repeal of Section 67 of the Omnibus Election Code as the same was amply and comprehensively deliberated upon by the members of the House. (Emphases supplied and citations omitted)

The reasoning behind Fariñas similarly applies to the claim of

unconstitutionality with respect to Section 12 of the Fair Election Act. The questioned provision reads:

SECTION 12. Substitution of Candidates. — In case of valid substitutions after the official ballots have been printed, the votes cast for the substituted candidates shall be considered as stray votes but shall not invalidate the whole ballot. For this purpose, the official ballots shall provide spaces where the voters may write the name of the substitute candidates if they are voting for the latter: Provided, however, That if the substitute candidate is of the same family name, this provision shall not apply.

To give a contextual background, we observe that Congress consciously looked for a more generic title in order to express the thrust of the law. Below is an excerpt from the Bicameral Conference Committee deliberations:7

CHAIRMAN SYJUCO. x x x x. First of all, we will need to answer when we get back to our own chamber what it is that there seems to be a rider here that does not seem to be pertinent or relevant to the...germane to the spirit. And in fact that title and the purpose for this very Act -It is an Act to enhance the holding of free, orderly, honest, peaceful, and credible elections through fair election practices.

It is the opinion of many of us in the House that this should be the subject of another legislation rather than a rider "kuno" on legislation that is...that refers totally to a different subject matter. So that’s one. x x x x

CHAIRMAN SYJUCO. Okay. May we jump a little ahead of ourselves, no. But I think it’s necessary to get a little ahead so that we can be enlightened as to how this will fit, these particular things will fit into the whole pie, no. So, what sort of title then would emanate so as to accommodate a subject matter which under the present title or the proposed titles or the title from the House or the title from the Senate would seem to be more appropriately the subject of another legislation?

May I draw on the experience of the Chairman for this, please?

CHAIRMAN ROCO. Yes. We really studied that very carefully and we weighed, and that’s why we recommended as a last thing was fair election practices, and we combed in fact the laws. It becomes fair election practices. We went through all the different laws pa kung meron pa kaming maii-spot na unfairness para ipapasok pa, pero wala na eh. The unfairness were in the opportunity lang to run and then you’re disqualified when you run for something else. Ngayon we restrict it only for President and Vice President. You forfeit...it’s the reverse really of the present law. x x x x.

CHAIRMAN SYJUCO. Okay. So do you believe, Mr. Chairman, that we can find an appropriate title for this so that it will not stick out like a sword and seem to be inappropriate as part of the whole body?

CHAIRMAN ROCO. Will you feel comfortable with fair election practices? Baka okey na because it’s really fair na. x x x x.

CHAIRMAN SYJUCO. So if the scope can be widened so as to cover this as well, then it should be all right.

SEN. LEGARDA-LEVISTE. Yes, Mr. Chairman. I just wanted to clarify. So all we’re looking for now is appropriate title to make it broader so that it would cover this provision. Is that correct? CHAIRMAN SYJUCO. We’re looking for an appropriate coverage which will result in the nomenclature.

SEN. LEGARDA-LEVISTE. Because I really do not believe that it is out-of-place. I think that even with the term FAIR ELECTION PRACTICE it really covers it. Because as expressed by Sen. Roco, those conditions stated earlier seemed unfair and it is an election practice and therefore, I think I’m very comfortable with the title FAIR ELECTION PRACTICE so that we can get over with these things so that we don’t come back again until we find the title. I mean it’s one provision which I think is fair for everybody. It may seem like a limitation but this limitation actually provides for fairness in election practices as the title implies. x x x x.

CHAIRPERSON MARCOS. Mr. Chairman, may I just make the observation that although it is true that the bulk of provisions deals with the area of propaganda and political advertising, the complete title is actually one that indulge full coverage. It says, AN ACT TO

ENHANCE THE HOLDING OF FREE, ORDERLY, HONEST, etcetera ELECTIONS through fair election practices. But as we said we will put that aside to discuss later on.

Secondly, I think the declaration of principles contained in Section 2, paragraph 2, is perfectly adequate and that it says that it shall ensure candidates for public office that be free from any form of harassment and discrimination. Surely, this provision in Section 67 of the old Election

Code of the existing Omnibus Election Code is a form of harassment or discrimination.1âwphi1 And so I think that in the effort at leveling the playing field, we can cover this and it should not be considered a rider. x x x x.

CHAIRMAN ROCO. Yeah, I think what is on the table is that we are not disputing this but we are looking for a title that is more generic so that then we have less x x x of an objection on constitutionality. I think that’s the theory. So, there is acceptance of this. Maybe we should not call it nga limitation on elected officials. Maybe we should say, special provision on elected officials. So, how is that? Now, also, then we say… On the short title of the Act, we say… (unfinished) x x x x.

CHAIRMAN ROCO. It's done. So, okay na iyun. The title will be FAIR ELECTION ACT. The rest are wala nang problema, ana? Wala na. Wala na. (Italics and boldface supplied)

What the above discussion tells us is that Congress did not limit the law to the lifting of the political ad ban. After combing through various laws, they found other election practices that they considered inequitable. Some of these practices included the appreciation of the votes cast in case of a late substitution of candidates and the ipso facto resignation of certain elective officials upon the filing of their certificates of candidacy. Thus, to "level the playing field," Congress fashioned a law that would address what they determined were unfair election practices; hence, the birth of the Fair Election Act.

After a careful analysis of the foregoing, we find that the assailed Section 12 (Substitution of Candidates) and Section 14 (Repealing Clause) are indeed germane to the subject expressed in the title of R.A. 9006: An Act to Enhance the Holding of Free, Orderly, Honest,

Peaceful and Credible Elections through Fair Election Practices. The title was worded broadly enough to include the measures embodied in the assailed sections. Consequently, we dismiss the Petition and the petitions-in-intervention for failure to establish a clear breach of the Constitution.

On a final note, we observe that petitioner and petitioners-in-intervention raise various arguments that we deem are matters of policy. Whether or not those ratiocinations are valid, we reiterate that the power of this Court is limited to the interpretation of the law. Judicial power does not include the determination of the wisdom, fairness, soundness, or expediency of a statute. Otherwise, the Court may be accused of engaging in judicial legislation. As it is Congress that is empowered by the Constitution to determine state policies and to enact laws, we feel that petitioner's reasoning would be best addressed by the legislature.

WHEREFORE, the Petition is hereby DISMISSED.

SO ORDERED.

MARIA LOURDES P. A. SERENOChief Justice

WE CONCUR:

ANTONIO T. CARPIOAssociate Justice

PRESBITERO J. VELASCO, JR.Associate Justice

TERESITA J. LEONARDO-DE CASTROAssociate Justice

(On wellness leave)ARTURO D. BRION*

Associate Justice

DIOSDADO M. PERALTAAssociate Justice

LUCAS P. BERSAMINAssociate Justice

MARIANO C. DEL CASTILLOAssociate Justice

ROBERTO A. ABADAssociate Justice

MARTIN S. VILLARAMA, JR.Associate Justice

JOSE PORTUGAL PEREZAssociate Justice

JOSE CATRAL MENDOZAAssociate Justice

BIENVENIDO L. REYESAssociate Justice

ESTELA M. PERLAS-BERNABEAssociate Justice

MARVIC MARIO VICTOR F. LEONENAssociate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

MARIA LOURDES P. A. SERENOChief Justice

Footnotes

EN BANC  

VICTORINO B. ALDABA, G.R No. 188078CARLO JOLETTE S. FAJARDO,JULIO G. MORADA, and Present:MINERVA ALDABA MORADA,Petitioners, PUNO, C.J.,

CARPIO,CORONA,

CARPIO MORALES,

VELASCO, JR.,NACHURA,

LEONARDO-DE CASTRO,BRION,

- versus - PERALTA,BERSAMIN,DEL CASTILLO,ABAD,VILLARAMA, JR.,PEREZ, andMENDOZA, JJ.

   COMMISSION ON ELECTIONS, Promulgated:

Respondent. January 25, 2010x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x  

D E C I S I O N 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 Malolos[1] 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. 135[8] 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 offcensus 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 Certifications 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:

x x x (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. 

x x x (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 OSGs 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.   ANTONIO T. CARPIOAssociate Justice

 

WE CONCUR:   

REYNATO S. PUNOChief Justice

    

RENATO C. CORONA CONCHITA CARPIO MORALES

Associate Justice

PRESBITERO J. VELASCO, JR.Associate Justice

ANTONIO EDUARDO B. NACHURA

TERESITA J. LEONARDO-DE CASTROAssociate Justice

ARTURO D. BRION

DIOSDADO M. PERALTAAssociate Justice

LUCAS P. BERSAMIN

MARIANO C. DEL CASTILLOAssociate Justice

ROBERTO A. ABAD

MARTIN S. VILLARAMA, JR.Associate Justice

  

JOSE C. MENDOZAAssociate Justice

  

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.     

REYNATO S. PUNOChief Justice

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. 160261             November 10, 2003

ERNESTO B. FRANCISCO, JR., petitioner, NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA MANGGAGAWANG PILIPINO, INC., ITS OFFICERS AND MEMBERS, petitioner-in-intervention,WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs.THE HOUSE OF

REPRESENTATIVES, REPRESENTED BY SPEAKER JOSE G. DE VENECIA, THE SENATE, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON, REPRESENTATIVE GILBERTO C. TEODORO, JR. AND REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, respondents.JAIME N. SORIANO, respondent-in-Intervention,SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160262 November 10, 2003

SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA RAZON-ABAD, petitioners,ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO QUADRA, petitioners-in-intervention,WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs.THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTA-TIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents,JAIME N. SORIANO, respondent-in-intervention,SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160263 November 10, 2003

ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners,WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioners-in-intervention, vs.FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT, AND JOSE G. DE VENECIA, JR., IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF REPRESENTATIVES, respondents,JAIME N. SORIANO, respondent-in-intervention,SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160277 November 10, 2003

FRANCISCO I. CHAVEZ, petitioner,WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs.JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF REPRESENTATIVES, FRANKLIN M. DRILON, IN HIS CAPACITY AS PRESIDENT OF THE SENATE OF THE REPUBLIC OF THE PHILIPPINES, GILBERT TEODORO, JR., FELIX WILLIAM FUENTEBELLA, JULIO LEDESMA IV, HENRY LANOT, KIM BERNARDO-LOKIN, MARCELINO LIBANAN, EMMYLOU TALIÑO-SANTOS, DOUGLAS CAGAS, SHERWIN GATCHALIAN, LUIS BERSAMIN, JR., NERISSA SOON-RUIZ, ERNESTO NIEVA, EDGAR ERICE, ISMAEL MATHAY, SAMUEL DANGWA, ALFREDO MARAÑON, JR., CECILIA CARREON-JALOSJOS, AGAPITO AQUINO, FAUSTO SEACHON, JR., GEORGILU YUMUL-HERMIDA, JOSE CARLOS LACSON, MANUEL ORTEGA, ULIRAN JUAQUIN, SORAYA JAAFAR, WILHELMINO SY-ALVARADO, CLAUDE BAUTISTA, DEL DE GUZMAN, ZENAIDA CRUZ-DUCUT, AUGUSTO BACULIO, FAUSTINO DY III, AUGUSTO SYJUCO, ROZZANO RUFINO BIAZON, LEOVIGILDO BANAAG, ERIC SINGSON, JACINTO PARAS, JOSE SOLIS, RENATO MATUBO, HERMINO TEVES, AMADO ESPINO, JR., EMILIO MACIAS, ARTHUR PINGOY, JR., FRANCIS NEPOMUCENO, CONRADO ESTRELLA III, ELIAS BULUT, JR., JURDIN ROMUALDO, JUAN PABLO BONDOC, GENEROSO TULAGAN, PERPETUO YLAGAN, MICHAEL DUAVIT, JOSEPH DURANO, JESLI LAPUS, CARLOS COJUANGCO, GIORGIDI AGGABAO, FRANCIS ESCUDERRO, RENE VELARDE, CELSO LOBREGAT, ALIPIO BADELLES, DIDAGEN DILANGALEN, ABRAHAM MITRA, JOSEPH SANTIAGO, DARLENE ANTONIO-CUSTODIO, ALETA SUAREZ, RODOLF PLAZA, JV BAUTISTA, GREGORIO IPONG, GILBERT REMULLA, ROLEX SUPLICO, CELIA LAYUS, JUAN MIGUEL ZUBIRI, BENASING MACARAMBON, JR., JOSEFINA JOSON, MARK COJUANGCO, MAURICIO DOMOGAN, RONALDO ZAMORA, ANGELO MONTILLA, ROSELLER BARINAGA, JESNAR FALCON, REYLINA NICOLAS, RODOLFO ALBANO, JOAQUIN CHIPECO, JR., AND RUY ELIAS LOPEZ, respondents,JAIME N. SORIANO, respondent-in-intervention,SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160292 November 10, 2003

HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA. CECILIA PAPA, NAPOLEON C. REYES, ANTONIO H. ABAD, JR., ALFREDO C. LIGON, JOAN P. SERRANO AND GARY S. MALLARI, petitioners,WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs.HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P. NAZARENO, IN HIS CAPACITY AS SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES, AND THE HOUSE OF REPRESENTATIVES, respondents,JAIME N. SORIANO, respondent-in-intervention,SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160295 November 10, 2003

SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. GONZALES, petitioners,WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention,vs.THE HOUSE OF REPRESEN-TATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents,JAIME N. SORIANO, respondent-in-intervention,SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160310 November 10, 2003

LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN MATIBAG, RAMON MIQUIBAS, RODOLFO MAGSINO, EDUARDO MALASAGA, EDUARDO SARMIENTO, EDGARDO NAOE, LEONARDO GARCIA, EDGARD SMITH, EMETERIO MENDIOLA, MARIO TOREJA, GUILLERMO CASTASUS, NELSON

A. LOYOLA, WILFREDO BELLO, JR., RONNIE TOQUILLO, KATE ANN VITAL, ANGELITA Q. GUZMAN, MONICO PABLES, JR., JAIME BOAQUINA, LITA A. AQUINO, MILA P. GABITO, JANETTE ARROYO, RIZALDY EMPIG, ERNA LAHUZ, HOMER CALIBAG, DR. BING ARCE, SIMEON ARCE, JR., EL DELLE ARCE, WILLIE RIVERO, DANTE DIAZ, ALBERTO BUENAVISTA, FAUSTO BUENAVISTA, EMILY SENERIS, ANNA CLARISSA LOYOLA, SALVACION LOYOLA, RAINIER QUIROLGICO, JOSEPH LEANDRO LOYOLA, ANTONIO LIBREA, FILEMON SIBULO, MANUEL D. COMIA, JULITO U. SOON, VIRGILIO LUSTRE, AND NOEL ISORENA, MAU RESTRIVERA, MAX VILLAESTER, AND EDILBERTO GALLOR, petitioners,WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs.THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON. SPEAKER JOSE C. DE VENECIA, JR., THE SENATE, REPRESENTED BY HON. SENATE PRESIDENT FRANKLIN DRILON, HON. FELIX FUENTEBELLA, ET AL., respondents.

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

G.R. No. 160318 November 10, 2003

PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners, vs.HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF REPRESENTATIVES, HON. SENATE PRESIDENT FRANKLIN M. DRILON, AND ALL MEMBERS, PHILIPPINE SENATE, respondents.

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

G.R. No. 160342 November 10, 2003

ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER OF THE INTEGRATED BAR OF THE PHILIPPINES, MANILA III, AND ENGR. MAXIMO N. MENEZ JR., IN HIS CAPACITY AS A TAXPAYER AND MEMBER OF THE ENGINEERING PROFESSION, petitioners, vs.THE HOUSE OF REPRESENTA-TIVES REPRESENTED BY THE 83 HONORABLE MEMBERS OF THE HOUSE LED BY HON. REPRESENTATIVE WILLIAM FUENTEBELLA, respondents.

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

G.R. No. 160343 November 10, 2003

INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs.THE HOUSE OF REPRESENTA-TIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents.

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

G.R. No. 160360 November 10, 2003

CLARO B. FLORES, petitioner, vs.THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER, AND THE SENATE OF THE PHILIPPINES, THROUGH THE SENATE PRESIDENT, respondents.

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G.R. No. 160365 November 10, 2003

U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C. PADERANGA, DANILO V. ORTIZ, GLORIA C. ESTENZO-RAMOS, LIZA D. CORRO, LUIS V. DIORES, SR., BENJAMIN S. RALLON, ROLANDO P. NONATO, DANTE T. RAMOS, ELSA R. DIVINAGRACIA, KAREN B. CAPARROS-ARQUILLANO, SYLVA G. AGUIRRE-PADERANGA, FOR THEMSELVES AND IN BEHALF OF OTHER CITIZENS OF THE REPUBLIC OF THE PHILIPPINES, petitioners, vs.THE HOUSE OF REPRESENTA-TIVES, SPEAKER JOSE G. DE VENECIA, THE SENATE OF THE PHILIPPINES, SENATE PRESIDENT FRANKLIN DRILON, HOUSE REPRESENTATIVES FELIX FUENTEBELLA AND GILBERTO TEODORO, BY THEMSELVES AND AS REPRESENTATIVES OF THE GROUP OF MORE THAN 80 HOUSE REPRESENTATIVES WHO SIGNED AND FILED THE IMPEACHMENT COMPLAINT AGAINST SUPREME COURT CHIEF JUSTICE HILARIO G. DAVIDE, JR. respondents.

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G.R. No. 160370 November 10, 2003

FR. RANHILIO CALLANGAN AQUINO, petitioner, vs.THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE SPEAKER OF THE HOUSE OF REPRESENTATIVES, respondents.

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G.R. No. 160376 November 10, 2003

NILO A. MALANYAON, petitioner, vs.HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN REPRESENTATION OF THE 86 SIGNATORIES OF THE ARTICLES OF IMPEACHMENT AGAINST CHIEF JUSTICE HILARIO G. DAVIDE, JR. AND THE HOUSE OF REPRESENTATIVES, CONGRESS OF THE PHILIPPINES, REPRESENTED BY ITS SPEAKER, HON. JOSE G. DE VENECIA, respondents.

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G.R. No. 160392 November 10, 2003

VENICIO S. FLORES AND HECTOR L. HOFILEÑA, petitioners, vs.THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G. DE VENECIA, AND THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT FRANKLIN DRILON, respondents.

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G.R. No. 160397 November 10, 2003

IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF JUSTICE HILARIO G. DAVIDE, JR., ATTY. DIOSCORO U. VALLEJOS, JR., petitioner.

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G.R. No. 160403 November 10, 2003

PHILIPPINE BAR ASSOCIATION, petitioner, vs.THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR PRESIDING OFFICER, HON. JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELA, THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT, HON. FRANKLIN DRILON, respondents.

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G.R. No. 160405 November 10, 2003

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

CARPIO MORALES, J.:

There can be no constitutional crisis arising from a conflict, no matter how passionate and seemingly irreconcilable it may appear to be, over the determination by the independent branches of government of the nature, scope and extent of their respective constitutional

powers where the Constitution itself provides for the means and bases for its resolution.

Our nation's history is replete with vivid illustrations of the often frictional, at times turbulent, dynamics of the relationship among these co-equal branches. This Court is confronted with one such today involving the legislature and the judiciary which has drawn legal luminaries to chart antipodal courses and not a few of our countrymen to vent cacophonous sentiments thereon.

There may indeed be some legitimacy to the characterization that the present controversy subject of the instant petitions – whether the filing of the second impeachment complaint against Chief Justice Hilario G. Davide, Jr. with the House of Representatives falls within the one year bar provided in the Constitution, and whether the resolution thereof is a political question – has resulted in a political crisis. Perhaps even more truth to the view that it was brought upon by a political crisis of conscience.

In any event, it is with the absolute certainty that our Constitution is sufficient to address all the issues which this controversy spawns that this Court unequivocally pronounces, at the first instance, that the feared resort to extra-constitutional methods of resolving it is neither necessary nor legally permissible. Both its resolution and protection of the public interest lie in adherence to, not departure from, the Constitution.

In passing over the complex issues arising from the controversy, this Court is ever mindful of the essential truth that the inviolate doctrine of separation of powers among the legislative, executive or judicial branches of government by no means prescribes for absolute autonomy in the discharge by each of that part of the governmental power assigned to it by the sovereign people.

At the same time, the corollary doctrine of checks and balances which has been carefully calibrated by the Constitution to temper the official acts of each of these three branches must be given effect without destroying their indispensable co-equality.

Taken together, these two fundamental doctrines of republican government, intended as they are to insure that governmental power

is wielded only for the good of the people, mandate a relationship of interdependence and coordination among these branches where the delicate functions of enacting, interpreting and enforcing laws are harmonized to achieve a unity of governance, guided only by what is in the greater interest and well-being of the people. Verily, salus populi est suprema lex.

Article XI of our present 1987 Constitution provides:

ARTICLE XI

Accountability of Public Officers

SECTION 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.

SECTION 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.

SECTION 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment.

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

(3) A vote of at least one-third of all the Members of the House shall

be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded.

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

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

(6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.

(7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment according to law.

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

Following the above-quoted Section 8 of Article XI of the Constitution, the 12th Congress of the House of Representatives adopted and approved the Rules of Procedure in Impeachment Proceedings (House Impeachment Rules) on November 28, 2001, superseding the previous House Impeachment Rules1 approved by the 11th Congress. The relevant distinctions between these two Congresses' House Impeachment Rules are shown in the following tabulation:

11TH CONGRESS RULES 12TH CONGRESS NEW RULES

RULE II

INITIATING IMPEACHMENT

Section 2. Mode of Initiating Impeachment. – Impeachment shall be initiated only by a verified complaint for impeachment filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof or by a verified complaint or resolution of impeachment filed by at least one-third (1/3) of all the Members of the House.

RULE V

BAR AGAINST INITIATION OF IMPEACHMENT PROCEEDINGS AGAINST THE SAME OFFICIAL

Section 16. – Impeachment Proceedings Deemed Initiated. – In cases where a Member of the House files a verified complaint of impeachment or a citizen files a verified complaint that is endorsed by a Member of the House through a resolution of endorsement against an impeachable officer, impeachment proceedings against such official are deemed initiated on the day the Committee on Justice finds that the verified complaint and/or resolution against such official, as the case may be, is sufficient in substance, or on the date the House votes to overturn or affirm the finding of the said Committee that the verified complaint and/or resolution, as the case may be, is not sufficient in substance.

In cases where a verified complaint or a resolution of impeachment is filed or endorsed, as the case may be, by at least one-third (1/3) of the Members of the House, impeachment proceedings are deemed initiated at the time of the filing of such verified complaint or resolution of impeachment with

the Secretary General.

RULE V

BAR AGAINST IMPEACHMENT

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

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

On July 22, 2002, the House of Representatives adopted a Resolution,2 sponsored by Representative Felix William D. Fuentebella, which directed the Committee on Justice "to conduct an investigation, in aid of legislation, on the manner of disbursements and expenditures by the Chief Justice of the Supreme Court of the Judiciary Development Fund (JDF)."3

On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint4 (first impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate Justices5 of this Court for "culpable violation of the Constitution, betrayal of the public trust and other high crimes."6 The complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo B. Zamora and Didagen Piang Dilangalen,7 and was referred to the House Committee on Justice on August 5, 20038 in accordance with Section 3(2) of Article XI of the Constitution which reads:

Section 3(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter.

The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof.

The House Committee on Justice ruled on October 13, 2003 that the first impeachment complaint was "sufficient in form,"9 but voted to dismiss the same on October 22, 2003 for being insufficient in substance.10 To date, the Committee Report to this effect has not yet been sent to the House in plenary in accordance with the said Section 3(2) of Article XI of the Constitution.

Four months and three weeks since the filing on June 2, 2003 of the first complaint or on October 23, 2003, a day after the House Committee on Justice voted to dismiss it, the second impeachment complaint11 was filed with the Secretary General of the House12 by Representatives Gilberto C. Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella (Third District, Camarines Sur) against Chief Justice Hilario G. Davide, Jr., founded on the alleged results of the legislative inquiry initiated by above-mentioned House Resolution. This second impeachment complaint was accompanied by a "Resolution of Endorsement/Impeachment" signed by at least one-third (1/3) of all the Members of the House of Representatives.13

Thus arose the instant petitions against the House of Representatives, et. al., most of which petitions contend that the filing of the second impeachment complaint is unconstitutional as it violates the provision of Section 5 of Article XI of the Constitution that "[n]o impeachment proceedings shall be initiated against the same official more than once within a period of one year."

In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he has a duty as a member of the Integrated Bar of the Philippines to use all available legal remedies to stop an unconstitutional impeachment, that the issues raised in his petition for Certiorari, Prohibition and Mandamus are of transcendental importance, and that he "himself was a victim of the capricious and arbitrary changes in the Rules of Procedure in Impeachment Proceedings introduced by the 12th Congress,"14 posits that his right

to bring an impeachment complaint against then Ombudsman Aniano Desierto had been violated due to the capricious and arbitrary changes in the House Impeachment Rules adopted and approved on November 28, 2001 by the House of Representatives and prays that (1) Rule V, Sections 16 and 17 and Rule III, Sections 5, 6, 7, 8, and 9 thereof be declared unconstitutional; (2) this Court issue a writ of mandamus directing respondents House of Representatives et. al. to comply with Article IX, Section 3 (2), (3) and (5) of the Constitution, to return the second impeachment complaint and/or strike it off the records of the House of Representatives, and to promulgate rules which are consistent with the Constitution; and (3) this Court permanently enjoin respondent House of Representatives from proceeding with the second impeachment complaint.

In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens and taxpayers, alleging that the issues of the case are of transcendental importance, pray, in their petition for Certiorari/Prohibition, the issuance of a writ "perpetually" prohibiting respondent House of Representatives from filing any Articles of Impeachment against the Chief Justice with the Senate; and for the issuance of a writ "perpetually" prohibiting respondents Senate and Senate President Franklin Drilon from accepting any Articles of Impeachment against the Chief Justice or, in the event that the Senate has accepted the same, from proceeding with the impeachment trial.

In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad Cagampang, as citizens, taxpayers, lawyers and members of the Integrated Bar of the Philippines, alleging that their petition for Prohibition involves public interest as it involves the use of public funds necessary to conduct the impeachment trial on the second impeachment complaint, pray for the issuance of a writ of prohibition enjoining Congress from conducting further proceedings on said second impeachment complaint.

In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court has recognized that he has locus standi to bring petitions of this nature in the cases of Chavez v. PCGG15 and Chavez v. PEA-Amari Coastal Bay Development Corporation,16 prays in his petition for Injunction that the second impeachment complaint be declared

unconstitutional.

In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers and members of the legal profession, pray in their petition for Prohibition for an order prohibiting respondent House of Representatives from drafting, adopting, approving and transmitting to the Senate the second impeachment complaint, and respondents De Venecia and Nazareno from transmitting the Articles of Impeachment to the Senate.

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

In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that they have a right to be protected against all forms of senseless spending of taxpayers' money and that they have an obligation to protect the Supreme Court, the Chief Justice, and the integrity of the Judiciary, allege in their petition for Certiorari and Prohibition that it is instituted as "a class suit" and pray that (1) the House Resolution endorsing the second impeachment complaint as well as all issuances emanating therefrom be declared null and void; and (2) this Court enjoin the Senate and the Senate President from taking cognizance of, hearing, trying and deciding the second impeachment complaint, and issue a writ of prohibition commanding the Senate, its prosecutors and agents to desist from conducting any proceedings or to act on the impeachment complaint.

In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members are citizens and taxpayers, and its co-petitioner Crispin T. Reyes, a citizen, taxpayer and a member of the Philippine Bar, both allege in their petition, which does not state what its nature is, that the filing of the second impeachment complaint involves paramount public interest and pray that Sections 16 and 17 of the House Impeachment Rules and the second impeachment complaint/Articles of Impeachment be declared null and void.

In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and a member of the Philippine Bar Association and of the Integrated Bar of the Philippines, and petitioner Engr. Maximo N. Menez, Jr., as a taxpayer, pray in their petition for the issuance of a Temporary Restraining Order and Permanent Injunction to enjoin the House of Representatives from proceeding with the second impeachment complaint.

In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that it is mandated by the Code of Professional Responsibility to uphold the Constitution, prays in its petition for Certiorari and Prohibition that Sections 16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the House Impeachment Rules be declared unconstitutional and that the House of Representatives be permanently enjoined from proceeding with the second impeachment complaint.

In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his petition for Certiorari and Prohibition that the House Impeachment Rules be declared unconstitutional.

In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et. al., in their petition for Prohibition and Injunction which they claim is a class suit filed in behalf of all citizens, citing Oposa v. Factoran17 which was filed in behalf of succeeding generations of Filipinos, pray for the issuance of a writ prohibiting respondents House of Representatives and the Senate from conducting further proceedings on the second impeachment complaint and that this Court declare as unconstitutional the second impeachment complaint and the acts of respondent House of Representatives in interfering with the fiscal matters of the Judiciary.

In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino, alleging that the issues in his petition for Prohibition are of national and transcendental significance and that as an official of the Philippine Judicial Academy, he has a direct and substantial interest in the unhampered operation of the Supreme Court and its officials in discharging their duties in accordance with the Constitution, prays for the issuance of a writ prohibiting the House of Representatives from transmitting the Articles of Impeachment to the Senate and the

Senate from receiving the same or giving the impeachment complaint due course.

In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in his petition for Prohibition that respondents Fuentebella and Teodoro at the time they filed the second impeachment complaint, were "absolutely without any legal power to do so, as they acted without jurisdiction as far as the Articles of Impeachment assail the alleged abuse of powers of the Chief Justice to disburse the (JDF)."

In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L. Hofileña, alleging that as professors of law they have an abiding interest in the subject matter of their petition for Certiorari and Prohibition as it pertains to a constitutional issue "which they are trying to inculcate in the minds of their students," pray that the House of Representatives be enjoined from endorsing and the Senate from trying the Articles of Impeachment and that the second impeachment complaint be declared null and void.

In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging his locus standi, but alleging that the second impeachment complaint is founded on the issue of whether or not the Judicial Development Fund (JDF) was spent in accordance with law and that the House of Representatives does not have exclusive jurisdiction in the examination and audit thereof, prays in his petition "To Declare Complaint Null and Void for Lack of Cause of Action and Jurisdiction" that the second impeachment complaint be declared null and void.

In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the issues raised in the filing of the second impeachment complaint involve matters of transcendental importance, prays in its petition for Certiorari/Prohibition that (1) the second impeachment complaint and all proceedings arising therefrom be declared null and void; (2) respondent House of Representatives be prohibited from transmitting the Articles of Impeachment to the Senate; and (3) respondent Senate be prohibited from accepting the Articles of Impeachment and from conducting any proceedings thereon.

In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as

citizens and taxpayers, pray in their petition for Certiorari/Prohibition that (1) the second impeachment complaint as well as the resolution of endorsement and impeachment by the respondent House of Representatives be declared null and void and (2) respondents Senate and Senate President Franklin Drilon be prohibited from accepting any Articles of Impeachment against the Chief Justice or, in the event that they have accepted the same, that they be prohibited from proceeding with the impeachment trial.

Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, the first three of the eighteen which were filed before this Court,18 prayed for the issuance of a Temporary Restraining Order and/or preliminary injunction to prevent the House of Representatives from transmitting the Articles of Impeachment arising from the second impeachment complaint to the Senate. Petition bearing docket number G.R. No. 160261 likewise prayed for the declaration of the November 28, 2001 House Impeachment Rules as null and void for being unconstitutional.

Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295, which were filed on October 28, 2003, sought similar relief. In addition, petition bearing docket number G.R. No. 160292 alleged that House Resolution No. 260 (calling for a legislative inquiry into the administration by the Chief Justice of the JDF) infringes on the constitutional doctrine of separation of powers and is a direct violation of the constitutional principle of fiscal autonomy of the judiciary.

On October 28, 2003, during the plenary session of the House of Representatives, a motion was put forth that the second impeachment complaint be formally transmitted to the Senate, but it was not carried because the House of Representatives adjourned for lack of quorum,19 and as reflected above, to date, the Articles of Impeachment have yet to be forwarded to the Senate.

Before acting on the petitions with prayers for temporary restraining order and/or writ of preliminary injunction which were filed on or before October 28, 2003, Justices Puno and Vitug offered to recuse themselves, but the Court rejected their offer. Justice Panganiban inhibited himself, but the Court directed him to participate.

Without necessarily giving the petitions due course, this Court in its Resolution of October 28, 2003, resolved to (a) consolidate the petitions; (b) require respondent House of Representatives and the Senate, as well as the Solicitor General, to comment on the petitions not later than 4:30 p.m. of November 3, 2003; (c) set the petitions for oral arguments on November 5, 2003, at 10:00 a.m.; and (d) appointed distinguished legal experts as amici curiae.20 In addition, this Court called on petitioners and respondents to maintain the status quo, enjoining all the parties and others acting for and in their behalf to refrain from committing acts that would render the petitions moot.

Also on October 28, 2003, when respondent House of Representatives through Speaker Jose C. De Venecia, Jr. and/or its co-respondents, by way of special appearance, submitted a Manifestation asserting that this Court has no jurisdiction to hear, much less prohibit or enjoin the House of Representatives, which is an independent and co-equal branch of government under the Constitution, from the performance of its constitutionally mandated duty to initiate impeachment cases. On even date, Senator Aquilino Q. Pimentel, Jr., in his own behalf, filed a Motion to Intervene (Ex Abudante Cautela)21 and Comment, praying that "the consolidated petitions be dismissed for lack of jurisdiction of the Court over the issues affecting the impeachment proceedings and that the sole power, authority and jurisdiction of the Senate as the impeachment court to try and decide impeachment cases, including the one where the Chief Justice is the respondent, be recognized and upheld pursuant to the provisions of Article XI of the Constitution."22

Acting on the other petitions which were subsequently filed, this Court resolved to (a) consolidate them with the earlier consolidated petitions; (b) require respondents to file their comment not later than 4:30 p.m. of November 3, 2003; and (c) include them for oral arguments on November 5, 2003.

On October 29, 2003, the Senate of the Philippines, through Senate President Franklin M. Drilon, filed a Manifestation stating that insofar as it is concerned, the petitions are plainly premature and have no basis in law or in fact, adding that as of the time of the filing of the petitions, no justiciable issue was presented before it since (1) its

constitutional duty to constitute itself as an impeachment court commences only upon its receipt of the Articles of Impeachment, which it had not, and (2) the principal issues raised by the petitions pertain exclusively to the proceedings in the House of Representatives.

On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, and 160295, questioning the status quo Resolution issued by this Court on October 28, 2003 on the ground that it would unnecessarily put Congress and this Court in a "constitutional deadlock" and praying for the dismissal of all the petitions as the matter in question is not yet ripe for judicial determination.

On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino Quadra filed in G.R. No. 160262 a "Motion for Leave of Court to Intervene and to Admit the Herein Incorporated Petition in Intervention."

On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc. filed a Motion for Intervention in G.R. No. 160261. On November 5, 2003, World War II Veterans Legionnaires of the Philippines, Inc. also filed a "Petition-in-Intervention with Leave to Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and 160310.

The motions for intervention were granted and both Senator Pimentel's Comment and Attorneys Macalintal and Quadra's Petition in Intervention were admitted.

On November 5-6, 2003, this Court heard the views of the amici curiae and the arguments of petitioners, intervenors Senator Pimentel and Attorney Makalintal, and Solicitor General Alfredo Benipayo on the principal issues outlined in an Advisory issued by this Court on November 3, 2003, to wit:

Whether the certiorari jurisdiction of the Supreme Court may be invoked; who can invoke it; on what issues and at what time; and whether it should be exercised by this Court at this time.

In discussing these issues, the following may be taken up:

a) locus standi of petitioners;

b) ripeness(prematurity; mootness);

c) political question/justiciability;

d) House's "exclusive" power to initiate all cases of impeachment;

e) Senate's "sole" power to try and decide all cases of impeachment;

f) constitutionality of the House Rules on Impeachment vis-a-vis Section 3(5) of Article XI of the Constitution; and

g) judicial restraint (Italics in the original)

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

Judicial Review

As reflected above, petitioners plead for this Court to exercise the power of judicial review to determine the validity of the second impeachment complaint.

This Court's power of judicial review is conferred on the judicial branch of the government in Section 1, Article VIII of our present 1987 Constitution:

SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable

and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. (Emphasis supplied)

Such power of judicial review was early on exhaustively expounded upon by Justice Jose P. Laurel in the definitive 1936 case of Angara v. Electoral Commission23 after the effectivity of the 1935 Constitution whose provisions, unlike the present Constitution, did not contain the present provision in Article VIII, Section 1, par. 2 on what judicial power includes. Thus, Justice Laurel discoursed:

x x x In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof.

As any human production, our Constitution is of course lacking perfection and perfectibility, but as much as it was within the power of our people, acting through their delegates to so provide, that instrument which is the expression of their sovereignty however limited, has established a republican government intended to operate and function as a harmonious whole, under a system of checks and balances, and subject to specific limitations and restrictions provided in the said instrument. The Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere political apothegms. Certainly, the limitations and restrictions embodied in our Constitution are real as they should be in any living constitution. In the United States where no express constitutional grant is found in their constitution, the possession of this moderating power of the courts, not to speak of its historical origin and development there, has been set at rest by popular acquiescence for a period of more

than one and a half centuries. In our case, this moderating power is granted, if not expressly, by clear implication from section 2 of article VIII of our Constitution.

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

As pointed out by Justice Laurel, this "moderating power" to "determine the proper allocation of powers" of the different branches of government and "to direct the course of government along constitutional channels" is inherent in all courts25 as a necessary consequence of the judicial power itself, which is "the power of the court to settle actual controversies involving rights which are legally demandable and enforceable."26

Thus, even in the United States where the power of judicial review is not explicitly conferred upon the courts by its Constitution, such power has "been set at rest by popular acquiescence for a period of more than one and a half centuries." To be sure, it was in the 1803 leading case of Marbury v. Madison27 that the power of judicial review was first articulated by Chief Justice Marshall, to wit:

It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.

Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.28 (Italics in the original; emphasis supplied)

In our own jurisdiction, as early as 1902, decades before its express grant in the 1935 Constitution, the power of judicial review was exercised by our courts to invalidate constitutionally infirm acts.29 And as pointed out by noted political law professor and former Supreme Court Justice Vicente V. Mendoza,30 the executive and legislative branches of our government in fact effectively acknowledged this power of judicial review in Article 7 of the Civil Code, to wit:

Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary.

When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern.

Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution. (Emphasis supplied)

As indicated in Angara v. Electoral Commission,31 judicial review is indeed an integral component of the delicate system of checks and

balances which, together with the corollary principle of separation of powers, forms the bedrock of our republican form of government and insures that its vast powers are utilized only for the benefit of the people for which it serves.

The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. x x x And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution.32 (Emphasis and underscoring supplied)

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

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

x x x

The first section starts with a sentence copied from former Constitutions. It says:

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

I suppose nobody can question it.

The next provision is new in our constitutional law. I will read it first and explain.

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

Fellow Members of this Commission, this is actually a product of our experience during martial law. As a matter of fact, it has some antecedents in the past, but the role of the judiciary during the deposed regime was marred considerably by the circumstance that in a number of cases against the government, which then had no legal defense at all, the solicitor general set up the defense of political questions and got away with it. As a consequence, certain principles concerning particularly the writ of habeas corpus, that is, the authority of courts to order the release of political detainees, and other matters related to the operation and effect of martial law failed because the government set up the defense of political question. And the Supreme Court said: "Well, since it is political, we have no authority to pass upon it." The Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did not merely request an encroachment upon the rights of the people, but it, in effect, encouraged further violations thereof during the martial law regime. x x x

x x x

Briefly stated, courts of justice determine the limits of power of

the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature.

This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute a political question.35 (Italics in the original; emphasis and underscoring supplied)

To determine the merits of the issues raised in the instant petitions, this Court must necessarily turn to the Constitution itself which employs the well-settled principles of constitutional construction.

First, verba legis, that is, wherever possible, the words used in the Constitution must be given their ordinary meaning except where technical terms are employed. Thus, in J.M. Tuason & Co., Inc. v. Land Tenure Administration,36 this Court, speaking through Chief Justice Enrique Fernando, declared:

We look to the language of the document itself in our search for its meaning. We do not of course stop there, but that is where we begin. It is to be assumed that the words in which constitutional provisions are couched express the objective sought to be attained. They are to be given their ordinary meaning except where technical terms are employed in which case the significance thus attached to them prevails. As the Constitution is not primarily a lawyer's document, it being essential for the rule of law to obtain that it should ever be present in the people's consciousness, its language as much as possible should be understood in the sense they have in common use. What it says according to the text of the provision to be construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers and the people mean what they say. Thus these are the cases where the need for construction is reduced

to a minimum.37 (Emphasis and underscoring supplied)

Second, where there is ambiguity, ratio legis est anima. The words of the Constitution should be interpreted in accordance with the intent of its framers. And so did this Court apply this principle in Civil Liberties Union v. Executive Secretary38 in this wise:

A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the light of the history of the times, and the condition and circumstances under which the Constitution was framed. The object is to ascertain the reason which induced the framers of the Constitution to enact the particular provision and the purpose sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that reason and calculated to effect that purpose.39 (Emphasis and underscoring supplied)

As it did in Nitafan v. Commissioner on Internal Revenue40 where, speaking through Madame Justice Amuerfina A. Melencio-Herrera, it declared:

x x x The ascertainment of that intent is but in keeping with the fundamental principle of constitutional construction that the intent of the framers of the organic law and of the people adopting it should be given effect. The primary task in constitutional construction is to ascertain and thereafter assure the realization of the purpose of the framers and of the people in the adoption of the Constitution. It may also be safely assumed that the people in ratifying the Constitution were guided mainly by the explanation offered by the framers.41 (Emphasis and underscoring supplied)

Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. Thus, in Chiongbian v. De Leon,42 this Court, through Chief Justice Manuel Moran declared:

x x x [T]he members of the Constitutional Convention could not

have dedicated a provision of our Constitution merely for the benefit of one person without considering that it could also affect others. When they adopted subsection 2, they permitted, if not willed, that said provision should function to the full extent of its substance and its terms, not by itself alone, but in conjunction with all other provisions of that great document.43

(Emphasis and underscoring supplied)

Likewise, still in Civil Liberties Union v. Executive Secretary,44 this Court affirmed that:

It is a well-established rule in constitutional construction that no one provision of the Constitution is to be separated from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the instrument. Sections bearing on a particular subject should be considered and interpreted together as to effectuate the whole purpose of the Constitution and one section is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand together.

In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make the words idle and nugatory.45 (Emphasis supplied)

If, however, the plain meaning of the word is not found to be clear, resort to other aids is available. In still the same case of Civil Liberties Union v. Executive Secretary, this Court expounded:

While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the constitutional convention "are of value as showing the views of the individual members, and as indicating the reasons for their votes, but they give us no light as to the views of the large majority who did not talk, much less of the

mass of our fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer to construe the constitution from what appears upon its face." The proper interpretation therefore depends more on how it was understood by the people adopting it than in the framers's understanding thereof.46 (Emphasis and underscoring supplied)

It is in the context of the foregoing backdrop of constitutional refinement and jurisprudential application of the power of judicial review that respondents Speaker De Venecia, et. al. and intervenor Senator Pimentel raise the novel argument that the Constitution has excluded impeachment proceedings from the coverage of judicial review.

Briefly stated, it is the position of respondents Speaker De Venecia et. al. that impeachment is a political action which cannot assume a judicial character. Hence, any question, issue or incident arising at any stage of the impeachment proceeding is beyond the reach of judicial review.47

For his part, intervenor Senator Pimentel contends that the Senate's "sole power to try" impeachment cases48 (1) entirely excludes the application of judicial review over it; and (2) necessarily includes the Senate's power to determine constitutional questions relative to impeachment proceedings.49

In furthering their arguments on the proposition that impeachment proceedings are outside the scope of judicial review, respondents Speaker De Venecia, et. al. and intervenor Senator Pimentel rely heavily on American authorities, principally the majority opinion in the case of Nixon v. United States.50 Thus, they contend that the exercise of judicial review over impeachment proceedings is inappropriate since it runs counter to the framers' decision to allocate to different fora the powers to try impeachments and to try crimes; it disturbs the system of checks and balances, under which impeachment is the only legislative check on the judiciary; and it would create a lack of finality and difficulty in fashioning relief.51 Respondents likewise point to deliberations on the US Constitution to show the intent to isolate judicial power of review in cases of impeachment.

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

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

The major difference between the judicial power of the Philippine Supreme Court and that of the U.S. Supreme Court is that while the power of judicial review is only impliedly granted to the U.S. Supreme Court and is discretionary in nature, that granted to the Philippine Supreme Court and lower courts, as expressly provided for in the Constitution, is not just a power but also a duty, and it was given an expanded definition to include the power to correct any grave abuse of discretion on the part of any government branch or instrumentality.

There are also glaring distinctions between the U.S. Constitution and the Philippine Constitution with respect to the power of the House of Representatives over impeachment proceedings. While the U.S. Constitution bestows sole power of impeachment to the House of Representatives without limitation,54 our Constitution, though vesting in the House of Representatives the exclusive power to initiate impeachment cases,55 provides for several limitations to the exercise

of such power as embodied in Section 3(2), (3), (4) and (5), Article XI thereof. These limitations include the manner of filing, required vote to impeach, and the one year bar on the impeachment of one and the same official.

Respondents are also of the view that judicial review of impeachments undermines their finality and may also lead to conflicts between Congress and the judiciary. Thus, they call upon this Court to exercise judicial statesmanship on the principle that "whenever possible, the Court should defer to the judgment of the people expressed legislatively, recognizing full well the perils of judicial willfulness and pride."56

But did not the people also express their will when they instituted the above-mentioned safeguards in the Constitution? This shows that the Constitution did not intend to leave the matter of impeachment to the sole discretion of Congress. Instead, it provided for certain well-defined limits, or in the language of Baker v. Carr,57 "judicially discoverable standards" for determining the validity of the exercise of such discretion, through the power of judicial review.

The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by respondents in support of the argument that the impeachment power is beyond the scope of judicial review, are not in point. These cases concern the denial of petitions for writs of mandamus to compel the legislature to perform non-ministerial acts, and do not concern the exercise of the power of judicial review.

There is indeed a plethora of cases in which this Court exercised the power of judicial review over congressional action. Thus, in Santiago v. Guingona, Jr.,60 this Court ruled that it is well within the power and jurisdiction of the Court to inquire whether the Senate or its officials committed a violation of the Constitution or grave abuse of discretion in the exercise of their functions and prerogatives. In Tanada v. Angara,61 in seeking to nullify an act of the Philippine Senate on the ground that it contravened the Constitution, it held that the petition raises a justiciable controversy and that when an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. In Bondoc v. Pineda,62 this Court

declared null and void a resolution of the House of Representatives withdrawing the nomination, and rescinding the election, of a congressman as a member of the House Electoral Tribunal for being violative of Section 17, Article VI of the Constitution. In Coseteng v. Mitra,63 it held that the resolution of whether the House representation in the Commission on Appointments was based on proportional representation of the political parties as provided in Section 18, Article VI of the Constitution is subject to judicial review. In Daza v. Singson,64 it held that the act of the House of Representatives in removing the petitioner from the Commission on Appointments is subject to judicial review. In Tanada v. Cuenco,65 it held that although under the Constitution, the legislative power is vested exclusively in Congress, this does not detract from the power of the courts to pass upon the constitutionality of acts of Congress. In Angara v. Electoral Commission,66 it ruled that confirmation by the National Assembly of the election of any member, irrespective of whether his election is contested, is not essential before such member-elect may discharge the duties and enjoy the privileges of a member of the National Assembly.

Finally, there exists no constitutional basis for the contention that the exercise of judicial review over impeachment proceedings would upset the system of checks and balances. Verily, the Constitution is to be interpreted as a whole and "one section is not to be allowed to defeat another."67 Both are integral components of the calibrated system of independence and interdependence that insures that no branch of government act beyond the powers assigned to it by the Constitution.

Essential Requisites for Judicial Review

As clearly stated in Angara v. Electoral Commission, the courts' power of judicial review, like almost all powers conferred by the Constitution, is subject to several limitations, namely: (1) an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have "standing" to challenge; he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest possible opportunity; and (4) the issue of constitutionality

must be the very lis mota of the case.

x x x Even then, this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government.68 (Italics in the original)

Standing

Locus standi or legal standing or has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the question of standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions.69

Intervenor Soriano, in praying for the dismissal of the petitions, contends that petitioners do not have standing since only the Chief Justice has sustained and will sustain direct personal injury. Amicus curiae former Justice Minister and Solicitor General Estelito Mendoza similarly contends.

Upon the other hand, the Solicitor General asserts that petitioners have standing since this Court had, in the past, accorded standing to taxpayers, voters, concerned citizens, legislators in cases involving paramount public interest70 and transcendental importance,71 and that procedural matters are subordinate to the need to determine whether or not the other branches of the government have kept themselves

within the limits of the Constitution and the laws and that they have not abused the discretion given to them.72 Amicus curiae Dean Raul Pangalangan of the U.P. College of Law is of the same opinion, citing transcendental importance and the well-entrenched rule exception that, when the real party in interest is unable to vindicate his rights by seeking the same remedies, as in the case of the Chief Justice who, for ethical reasons, cannot himself invoke the jurisdiction of this Court, the courts will grant petitioners standing.

There is, however, a difference between the rule on real-party-in-interest and the rule on standing, for the former is a concept of civil procedure73 while the latter has constitutional underpinnings.74 In view of the arguments set forth regarding standing, it behooves the Court to reiterate the ruling in Kilosbayan, Inc. v. Morato75 to clarify what is meant by locus standi and to distinguish it from real party-in-interest.

The difference between the rule on standing and real party in interest has been noted by authorities thus: "It is important to note . . . that standing because of its constitutional and public policy underpinnings, is very different from questions relating to whether a particular plaintiff is the real party in interest or has capacity to sue. Although all three requirements are directed towards ensuring that only certain parties can maintain an action, standing restrictions require a partial consideration of the merits, as well as broader policy concerns relating to the proper role of the judiciary in certain areas.

Standing is a special concern in constitutional law because in some cases suits are brought not by parties who have been personally injured by the operation of a law or by official action taken, but by concerned citizens, taxpayers or voters who actually sue in the public interest. Hence the question in standing is whether such parties have "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions."

x x x

On the other hand, the question as to "real party in interest" is whether he is "the party who would be benefited or injured by the

judgment, or the 'party entitled to the avails of the suit.'"76 (Citations omitted)

While rights personal to the Chief Justice may have been injured by the alleged unconstitutional acts of the House of Representatives, none of the petitioners before us asserts a violation of the personal rights of the Chief Justice. On the contrary, they invariably invoke the vindication of their own rights – as taxpayers; members of Congress; citizens, individually or in a class suit; and members of the bar and of the legal profession – which were supposedly violated by the alleged unconstitutional acts of the House of Representatives.

In a long line of cases, however, concerned citizens, taxpayers and legislators when specific requirements have been met have been given standing by this Court.

When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.77 In fine, when the proceeding involves the assertion of a public right,78 the mere fact that he is a citizen satisfies the requirement of personal interest.

In the case of a taxpayer, he is allowed to sue where there is a claim that public funds are illegally disbursed, or that public money is being deflected to any improper purpose, or that there is a wastage of public funds through the enforcement of an invalid or unconstitutional law.79 Before he can invoke the power of judicial review, however, he must specifically prove that he has sufficient interest in preventing the illegal expenditure of money raised by taxation and that he would sustain a direct injury as a result of the enforcement of the questioned statute or contract. It is not sufficient that he has merely a general interest common to all members of the public.80

At all events, courts are vested with discretion as to whether or not a taxpayer's suit should be entertained.81 This Court opts to grant standing to most of the petitioners, given their allegation that any impending transmittal to the Senate of the Articles of Impeachment and the ensuing trial of the Chief Justice will necessarily involve the expenditure of public funds.

As for a legislator, he is allowed to sue to question the validity of any official action which he claims infringes his prerogatives as a legislator.82 Indeed, a member of the House of Representatives has standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in his office.83

While an association has legal personality to represent its members,84

especially when it is composed of substantial taxpayers and the outcome will affect their vital interests,85 the mere invocation by the Integrated Bar of the Philippines or any member of the legal profession of the duty to preserve the rule of law and nothing more, although undoubtedly true, does not suffice to clothe it with standing. Its interest is too general. It is shared by other groups and the whole citizenry. However, a reading of the petitions shows that it has advanced constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and weight as precedents.86 It, therefore, behooves this Court to relax the rules on standing and to resolve the issues presented by it.

In the same vein, when dealing with class suits filed in behalf of all citizens, persons intervening must be sufficiently numerous to fully protect the interests of all concerned87 to enable the court to deal properly with all interests involved in the suit,88 for a judgment in a class suit, whether favorable or unfavorable to the class, is, under the res judicata principle, binding on all members of the class whether or not they were before the court.89 Where it clearly appears that not all interests can be sufficiently represented as shown by the divergent issues raised in the numerous petitions before this Court, G.R. No. 160365 as a class suit ought to fail. Since petitioners additionally allege standing as citizens and taxpayers, however, their petition will stand.

The Philippine Bar Association, in G.R. No. 160403, invokes the sole

ground of transcendental importance, while Atty. Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his standing.

There being no doctrinal definition of transcendental importance, the following instructive determinants formulated by former Supreme Court Justice Florentino P. Feliciano are instructive: (1) the character of the funds or other assets involved in the case; (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; and (3) the lack of any other party with a more direct and specific interest in raising the questions being raised.90 Applying these determinants, this Court is satisfied that the issues raised herein are indeed of transcendental importance.

In not a few cases, this Court has in fact adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of transcendental significance to the people, as when the issues raised are of paramount importance to the public.91 Such liberality does not, however, mean that the requirement that a party should have an interest in the matter is totally eliminated. A party must, at the very least, still plead the existence of such interest, it not being one of which courts can take judicial notice. In petitioner Vallejos' case, he failed to allege any interest in the case. He does not thus have standing.

With respect to the motions for intervention, Rule 19, Section 2 of the Rules of Court requires an intervenor to possess a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof. While intervention is not a matter of right, it may be permitted by the courts when the applicant shows facts which satisfy the requirements of the law authorizing intervention.92

In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadra's case, they seek to join petitioners Candelaria, et. al. in G.R. No. 160262. Since, save for one additional issue, they raise the same issues and the same standing, and no objection on the part of petitioners Candelaria, et. al. has been interposed, this Court as

earlier stated, granted the Motion for Leave of Court to Intervene and Petition-in-Intervention.

Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et. al. sought to join petitioner Francisco in G.R. No. 160261. Invoking their right as citizens to intervene, alleging that "they will suffer if this insidious scheme of the minority members of the House of Representatives is successful," this Court found the requisites for intervention had been complied with.

Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and 160310 were of transcendental importance, World War II Veterans Legionnaires of the Philippines, Inc. filed a "Petition-in-Intervention with Leave to Intervene" to raise the additional issue of whether or not the second impeachment complaint against the Chief Justice is valid and based on any of the grounds prescribed by the Constitution.

Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et al. and World War II Veterans Legionnaires of the Philippines, Inc. possess a legal interest in the matter in litigation the respective motions to intervene were hereby granted.

Senator Aquilino Pimentel, on the other hand, sought to intervene for the limited purpose of making of record and arguing a point of view that differs with Senate President Drilon's. He alleges that submitting to this Court's jurisdiction as the Senate President does will undermine the independence of the Senate which will sit as an impeachment court once the Articles of Impeachment are transmitted to it from the House of Representatives. Clearly, Senator Pimentel possesses a legal interest in the matter in litigation, he being a member of Congress against which the herein petitions are directed. For this reason, and to fully ventilate all substantial issues relating to the matter at hand, his Motion to Intervene was granted and he was, as earlier stated, allowed to argue.

Lastly, as to Jaime N. Soriano's motion to intervene, the same must be denied for, while he asserts an interest as a taxpayer, he failed to meet the standing requirement for bringing taxpayer's suits as set

forth in Dumlao v. Comelec,93 to wit:

x x x While, concededly, the elections to be held involve the expenditure of public moneys, nowhere in their Petition do said petitioners allege that their tax money is "being extracted and spent in violation of specific constitutional protection against abuses of legislative power," or that there is a misapplication of such funds by respondent COMELEC, or that public money is being deflected to any improper purpose. Neither do petitioners seek to restrain respondent from wasting public funds through the enforcement of an invalid or unconstitutional law.94 (Citations omitted)

In praying for the dismissal of the petitions, Soriano failed even to allege that the act of petitioners will result in illegal disbursement of public funds or in public money being deflected to any improper purpose. Additionally, his mere interest as a member of the Bar does not suffice to clothe him with standing.

Ripeness and Prematurity

In Tan v. Macapagal,95 this Court, through Chief Justice Fernando, held that for a case to be considered ripe for adjudication, "it is a prerequisite that something had by then been accomplished or performed by either branch before a court may come into the picture."96 Only then may the courts pass on the validity of what was done, if and when the latter is challenged in an appropriate legal proceeding.

The instant petitions raise in the main the issue of the validity of the filing of the second impeachment complaint against the Chief Justice in accordance with the House Impeachment Rules adopted by the 12th Congress, the constitutionality of which is questioned. The questioned acts having been carried out, i.e., the second impeachment complaint had been filed with the House of Representatives and the 2001 Rules have already been already promulgated and enforced, the prerequisite that the alleged unconstitutional act should be accomplished and performed before suit, as Tan v. Macapagal holds, has been complied with.

Related to the issue of ripeness is the question of whether the instant petitions are premature. Amicus curiae former Senate President

Jovito R. Salonga opines that there may be no urgent need for this Court to render a decision at this time, it being the final arbiter on questions of constitutionality anyway. He thus recommends that all remedies in the House and Senate should first be exhausted.

Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law who suggests to this Court to take judicial notice of on-going attempts to encourage signatories to the second impeachment complaint to withdraw their signatures and opines that the House Impeachment Rules provide for an opportunity for members to raise constitutional questions themselves when the Articles of Impeachment are presented on a motion to transmit to the same to the Senate. The dean maintains that even assuming that the Articles are transmitted to the Senate, the Chief Justice can raise the issue of their constitutional infirmity by way of a motion to dismiss.

The dean's position does not persuade. First, the withdrawal by the Representatives of their signatures would not, by itself, cure the House Impeachment Rules of their constitutional infirmity. Neither would such a withdrawal, by itself, obliterate the questioned second impeachment complaint since it would only place it under the ambit of Sections 3(2) and (3) of Article XI of the Constitution97 and, therefore, petitioners would continue to suffer their injuries.

Second and most importantly, the futility of seeking remedies from either or both Houses of Congress before coming to this Court is shown by the fact that, as previously discussed, neither the House of Representatives nor the Senate is clothed with the power to rule with definitiveness on the issue of constitutionality, whether concerning impeachment proceedings or otherwise, as said power is exclusively vested in the judiciary by the earlier quoted Section I, Article VIII of the Constitution. Remedy cannot be sought from a body which is bereft of power to grant it.

Justiciability

In the leading case of Tanada v. Cuenco,98 Chief Justice Roberto Concepcion defined the term "political question," viz:

[T]he term "political question" connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy. In other

words, in the language of Corpus Juris Secundum, it refers to "those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government." It is concerned with issues dependent upon the wisdom, not legality, of a particular measure.99

(Italics in the original)

Prior to the 1973 Constitution, without consistency and seemingly without any rhyme or reason, this Court vacillated on its stance of taking cognizance of cases which involved political questions. In some cases, this Court hid behind the cover of the political question doctrine and refused to exercise its power of judicial review.100 In other cases, however, despite the seeming political nature of the therein issues involved, this Court assumed jurisdiction whenever it found constitutionally imposed limits on powers or functions conferred upon political bodies.101 Even in the landmark 1988 case of Javellana v. Executive Secretary102 which raised the issue of whether the 1973 Constitution was ratified, hence, in force, this Court shunted the political question doctrine and took cognizance thereof. Ratification by the people of a Constitution is a political question, it being a question decided by the people in their sovereign capacity.

The frequency with which this Court invoked the political question doctrine to refuse to take jurisdiction over certain cases during the Marcos regime motivated Chief Justice Concepcion, when he became a Constitutional Commissioner, to clarify this Court's power of judicial review and its application on issues involving political questions, viz:

MR. CONCEPCION. Thank you, Mr. Presiding Officer.

I will speak on the judiciary. Practically, everybody has made, I suppose, the usual comment that the judiciary is the weakest among the three major branches of the service. Since the legislature holds the purse and the executive the sword, the judiciary has nothing with which to enforce its decisions or commands except the power of reason and appeal to conscience which, after all, reflects the will of God, and is the most powerful of all other powers without exception. x x x And so, with the body's indulgence, I will proceed to read the

provisions drafted by the Committee on the Judiciary.

The first section starts with a sentence copied from former Constitutions. It says:

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

I suppose nobody can question it.

The next provision is new in our constitutional law. I will read it first and explain.

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

Fellow Members of this Commission, this is actually a product of our experience during martial law. As a matter of fact, it has some antecedents in the past, but the role of the judiciary during the deposed regime was marred considerably by the circumstance that in a number of cases against the government, which then had no legal defense at all, the solicitor general set up the defense of political questions and got away with it. As a consequence, certain principles concerning particularly the writ of habeas corpus, that is, the authority of courts to order the release of political detainees, and other matters related to the operation and effect of martial law failed because the government set up the defense of political question. And the Supreme Court said: "Well, since it is political, we have no authority to pass upon it." The Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did not merely request an encroachment upon the rights of the people, but it, in effect, encouraged further violations thereof during the martial law regime. I am sure the members of the Bar are familiar with this situation. But for the benefit of the Members of the Commission who are not lawyers, allow me to explain. I will start with a decision of the Supreme Court in 1973 on the case of Javellana vs. the Secretary of Justice, if I am not mistaken. Martial law was

announced on September 22, although the proclamation was dated September 21. The obvious reason for the delay in its publication was that the administration had apprehended and detained prominent newsmen on September 21. So that when martial law was announced on September 22, the media hardly published anything about it. In fact, the media could not publish any story not only because our main writers were already incarcerated, but also because those who succeeded them in their jobs were under mortal threat of being the object of wrath of the ruling party. The 1971 Constitutional Convention had begun on June 1, 1971 and by September 21 or 22 had not finished the Constitution; it had barely agreed in the fundamentals of the Constitution. I forgot to say that upon the proclamation of martial law, some delegates to that 1971 Constitutional Convention, dozens of them, were picked up. One of them was our very own colleague, Commissioner Calderon. So, the unfinished draft of the Constitution was taken over by representatives of Malacañang. In 17 days, they finished what the delegates to the 1971 Constitutional Convention had been unable to accomplish for about 14 months. The draft of the 1973 Constitution was presented to the President around December 1, 1972, whereupon the President issued a decree calling a plebiscite which suspended the operation of some provisions in the martial law decree which prohibited discussions, much less public discussions of certain matters of public concern. The purpose was presumably to allow a free discussion on the draft of the Constitution on which a plebiscite was to be held sometime in January 1973. If I may use a word famous by our colleague, Commissioner Ople, during the interregnum, however, the draft of the Constitution was analyzed and criticized with such a telling effect that Malacañang felt the danger of its approval. So, the President suspended indefinitely the holding of the plebiscite and announced that he would consult the people in a referendum to be held from January 10 to January 15. But the questions to be submitted in the referendum were not announced until the eve of its scheduled beginning, under the supposed supervision not of the Commission on Elections, but of what was then designated as "citizens assemblies or barangays." Thus the barangays came into existence. The questions to be propounded were released with proposed answers thereto, suggesting that it was unnecessary to hold a plebiscite because the answers given in the referendum should be regarded as the votes cast in the plebiscite. Thereupon, a

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

A number of other cases were filed to declare the presidential proclamation null and void. The main defense put up by the government was that the issue was a political question and that the court had no jurisdiction to entertain the case.

x x x

The government said that in a referendum held from January 10 to January 15, the vast majority ratified the draft of the Constitution. Note that all members of the Supreme Court were residents of Manila, but none of them had been notified of any referendum in their respective places of residence, much less did they participate in the alleged referendum. None of them saw any referendum proceeding.

In the Philippines, even local gossips spread like wild fire. So, a majority of the members of the Court felt that there had been no referendum.

Second, a referendum cannot substitute for a plebiscite. There is a big difference between a referendum and a plebiscite. But another group of justices upheld the defense that the issue was a political question. Whereupon, they dismissed the case. This is not the only major case in which the plea of "political question" was set up. There have been a number of other cases in the past.

x x x The defense of the political question was rejected because the issue was clearly justiciable.

x x x

x x x When your Committee on the Judiciary began to perform its functions, it faced the following questions: What is judicial power? What is a political question?

The Supreme Court, like all other courts, has one main function: to settle actual controversies involving conflicts of rights which are demandable and enforceable. There are rights which are guaranteed by law but cannot be enforced by a judiciary party. In a decided case, a husband complained that his wife was unwilling to perform her duties as a wife. The Court said: "We can tell your wife what her duties as such are and that she is bound to comply with them, but we cannot force her physically to discharge her main marital duty to her husband. There are some rights guaranteed by law, but they are so personal that to enforce them by actual compulsion would be highly derogatory to human dignity."

This is why the first part of the second paragraph of Section I provides that:

Judicial power includes the duty of courts to settle actual controversies involving rights which are legally demandable or enforceable . . .

The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a presidential system of government, the Supreme Court has, also another important function. The powers of government are generally considered divided into three branches: the Legislative, the Executive and the Judiciary. Each one is supreme within its own sphere and independent of the others. Because of that supremacy power to determine whether a given law is valid or not is vested in courts of justice.

Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of

jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature.

This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute a political question.

I have made these extended remarks to the end that the Commissioners may have an initial food for thought on the subject of the judiciary.103 (Italics in the original; emphasis supplied)

During the deliberations of the Constitutional Commission, Chief Justice Concepcion further clarified the concept of judicial power, thus:

MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial power is not vested in the Supreme Court alone but also in other lower courts as may be created by law.

MR. CONCEPCION. Yes.

MR. NOLLEDO. And so, is this only an example?

MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify political questions with jurisdictional questions. But there is a difference.

MR. NOLLEDO. Because of the expression "judicial power"?

MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but where there is a question as to whether the government had authority or had abused its authority to the extent of lacking jurisdiction or excess of jurisdiction, that is not a political question. Therefore, the court has the duty to decide.

x x x

FR. BERNAS. Ultimately, therefore, it will always have to be decided by the Supreme Court according to the new numerical need for votes.

On another point, is it the intention of Section 1 to do away with the political question doctrine?

MR. CONCEPCION. No.

FR. BERNAS. It is not.

MR. CONCEPCION. No, because whenever there is an abuse of discretion, amounting to a lack of jurisdiction. . .

FR. BERNAS. So, I am satisfied with the answer that it is not intended to do away with the political question doctrine.

MR. CONCEPCION. No, certainly not.

When this provision was originally drafted, it sought to define what is judicial power. But the Gentleman will notice it says, "judicial power includes" and the reason being that the definition that we might make may not cover all possible areas.

FR. BERNAS. So, this is not an attempt to solve the problems arising from the political question doctrine.

MR. CONCEPCION. It definitely does not eliminate the fact that truly political questions are beyond the pale of judicial power.104

(Emphasis supplied)

From the foregoing record of the proceedings of the 1986 Constitutional Commission, it is clear that judicial power is not only a power; it is also a duty, a duty which cannot be abdicated by the mere specter of this creature called the political question doctrine. Chief Justice Concepcion hastened to clarify, however, that Section 1, Article VIII was not intended to do away with "truly political questions." From this clarification it is gathered that there are two species of political questions: (1) "truly political questions" and (2) those which "are not truly political questions."

Truly political questions are thus beyond judicial review, the reason for respect of the doctrine of separation of powers to be maintained. On the other hand, by virtue of Section 1, Article VIII of the Constitution, courts can review questions which are not truly political

in nature.

As pointed out by amicus curiae former dean Pacifico Agabin of the UP College of Law, this Court has in fact in a number of cases taken jurisdiction over questions which are not truly political following the effectivity of the present Constitution.

In Marcos v. Manglapus,105 this Court, speaking through Madame Justice Irene Cortes, held:

The present Constitution limits resort to the political question doctrine and broadens the scope of judicial inquiry into areas which the Court, under previous constitutions, would have normally left to the political departments to decide.106 x x x

In Bengzon v. Senate Blue Ribbon Committee,107 through Justice Teodoro Padilla, this Court declared:

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

And in Daza v. Singson,109 speaking through Justice Isagani Cruz, this Court ruled:

In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even if we were to assume that the issue presented before us was political in nature, we would still not be precluded from resolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political question.110 x x x (Emphasis and underscoring supplied.)

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

be problematic. There has been no clear standard. The American case of Baker v. Carr111 attempts to provide some:

x x x Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for questioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.112 (Underscoring supplied)

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

The problem in applying the foregoing standards is that the American concept of judicial review is radically different from our current concept, for Section 1, Article VIII of the Constitution provides our courts with far less discretion in determining whether they should pass upon a constitutional issue.

In our jurisdiction, the determination of a truly political question from a non-justiciable political question lies in the answer to the question of whether there are constitutionally imposed limits on powers or functions conferred upon political bodies. If there are, then our courts are duty-bound to examine whether the branch or instrumentality of the government properly acted within such limits. This Court shall thus now apply this standard to the present controversy.

These petitions raise five substantial issues:

I. Whether the offenses alleged in the Second impeachment

complaint constitute valid impeachable offenses under the Constitution.

II. Whether the second impeachment complaint was filed in accordance with Section 3(4), Article XI of the Constitution.

III. Whether the legislative inquiry by the House Committee on Justice into the Judicial Development Fund is an unconstitutional infringement of the constitutionally mandated fiscal autonomy of the judiciary.

IV. Whether Sections 15 and 16 of Rule V of the Rules on Impeachment adopted by the 12th Congress are unconstitutional for violating the provisions of Section 3, Article XI of the Constitution.

V. Whether the second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution.

The first issue goes into the merits of the second impeachment complaint over which this Court has no jurisdiction. More importantly, any discussion of this issue would require this Court to make a determination of what constitutes an impeachable offense. Such a determination is a purely political question which the Constitution has left to the sound discretion of the legislation. Such an intent is clear from the deliberations of the Constitutional Commission.113

Although Section 2 of Article XI of the Constitution enumerates six grounds for impeachment, two of these, namely, other high crimes and betrayal of public trust, elude a precise definition. In fact, an examination of the records of the 1986 Constitutional Commission shows that the framers could find no better way to approximate the boundaries of betrayal of public trust and other high crimes than by alluding to both positive and negative examples of both, without arriving at their clear cut definition or even a standard therefor.114

Clearly, the issue calls upon this court to decide a non-justiciable political question which is beyond the scope of its judicial power under Section 1, Article VIII.

Lis Mota

It is a well-settled maxim of adjudication that an issue assailing the

constitutionality of a governmental act should be avoided whenever possible. Thus, in the case of Sotto v. Commission on Elections,115

this Court held:

x x x It is a well-established rule that a court should not pass upon a constitutional question and decide a law to be unconstitutional or invalid, unless such question is raised by the parties and that when it is raised, if the record also presents some other ground upon which the court may rest its judgment, that course will be adopted and the constitutional question will be left for consideration until a case arises in which a decision upon such question will be unavoidable.116 [Emphasis and underscoring supplied]

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

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

Succinctly put, courts will not touch the issue of constitutionality unless it is truly unavoidable and is the very lis mota or crux of the controversy.

As noted earlier, the instant consolidated petitions, while all seeking the invalidity of the second impeachment complaint, collectively raise several constitutional issues upon which the outcome of this controversy could possibly be made to rest. In determining whether one, some or all of the remaining substantial issues should be passed upon, this Court is guided by the related cannon of adjudication that "the court should not form a rule of constitutional law broader than is required by the precise facts to which it is applied."119

In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among other reasons, the second impeachment complaint is invalid since it directly resulted from a Resolution120 calling for a legislative inquiry into the JDF, which Resolution and legislative inquiry petitioners claim to likewise be unconstitutional for being: (a) a violation of the rules and jurisprudence on investigations in aid of legislation; (b) an open breach of the doctrine of separation of powers; (c) a violation of the constitutionally mandated fiscal autonomy of the judiciary; and (d) an assault on the independence of the judiciary.121

Without going into the merits of petitioners Alfonso, et. al.'s claims, it is the studied opinion of this Court that the issue of the constitutionality of the said Resolution and resulting legislative inquiry is too far removed from the issue of the validity of the second impeachment complaint. Moreover, the resolution of said issue would, in the Court's opinion, require it to form a rule of constitutional law touching on the separate and distinct matter of legislative inquiries in general, which would thus be broader than is required by the facts of these consolidated cases. This opinion is further strengthened by the fact that said petitioners have raised other grounds in support of their petition which would not be adversely affected by the Court's ruling.

En passant, this Court notes that a standard for the conduct of legislative inquiries has already been enunciated by this Court in Bengzon, Jr. v. Senate Blue Ribbon Commttee,122 viz:

The 1987 Constitution expressly recognizes the power of both houses of Congress to conduct inquiries in aid of legislation. Thus, Section 21, Article VI thereof provides:

The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected.

The power of both houses of Congress to conduct inquiries in aid of legislation is not, therefore absolute or unlimited. Its exercise is circumscribed by the afore-quoted provision of the Constitution. Thus,

as provided therein, the investigation must be "in aid of legislation in accordance with its duly published rules of procedure" and that "the rights of persons appearing in or affected by such inquiries shall be respected." It follows then that the right rights of persons under the Bill of Rights must be respected, including the right to due process and the right not be compelled to testify against one's self.123

In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino Quadra, while joining the original petition of petitioners Candelaria, et. al., introduce the new argument that since the second impeachment complaint was verified and filed only by Representatives Gilberto Teodoro, Jr. and Felix William Fuentebella, the same does not fall under the provisions of Section 3 (4), Article XI of the Constitution which reads:

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

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

"We are the proponents/sponsors of the Resolution of Endorsement of the abovementioned Complaint of Representatives Gilberto Teodoro and Felix William B. Fuentebella x x x"124

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

the House of Representatives. Not having complied with this requirement, they concede that the second impeachment complaint should have been calendared and referred to the House Committee on Justice under Section 3(2), Article XI of the Constitution, viz:

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

Intervenors' foregoing position is echoed by Justice Maambong who opined that for Section 3 (4), Article XI of the Constitution to apply, there should be 76 or more representatives who signed and verified the second impeachment complaint as complainants, signed and verified the signatories to a resolution of impeachment. Justice Maambong likewise asserted that the Resolution of Endorsement/Impeachment signed by at least one-third of the members of the House of Representatives as endorsers is not the resolution of impeachment contemplated by the Constitution, such resolution of endorsement being necessary only from at least one Member whenever a citizen files a verified impeachment complaint.

While the foregoing issue, as argued by intervenors Macalintal and Quadra, does indeed limit the scope of the constitutional issues to the provisions on impeachment, more compelling considerations militate against its adoption as the lis mota or crux of the present controversy. Chief among this is the fact that only Attorneys Macalintal and Quadra, intervenors in G.R. No. 160262, have raised this issue as a ground for invalidating the second impeachment complaint. Thus, to adopt this additional ground as the basis for deciding the instant consolidated petitions would not only render for naught the efforts of the original petitioners in G.R. No. 160262, but the efforts presented by the other petitioners as well.

Again, the decision to discard the resolution of this issue as unnecessary for the determination of the instant cases is made easier by the fact that said intervenors Macalintal and Quadra have joined in the petition of Candelaria, et. al., adopting the latter's arguments and issues as their own. Consequently, they are not unduly prejudiced by this Court's decision.

In sum, this Court holds that the two remaining issues, inextricably linked as they are, constitute the very lis mota of the instant controversy: (1) whether Sections 15 and 16 of Rule V of the House Impeachment Rules adopted by the 12th Congress are unconstitutional for violating the provisions of Section 3, Article XI of the Constitution; and (2) whether, as a result thereof, the second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution.

Judicial Restraint

Senator Pimentel urges this Court to exercise judicial restraint on the ground that the Senate, sitting as an impeachment court, has the sole power to try and decide all cases of impeachment. Again, this Court reiterates that the power of judicial review includes the power of review over justiciable issues in impeachment proceedings.

On the other hand, respondents Speaker De Venecia et. al. argue that "[t]here is a moral compulsion for the Court to not assume jurisdiction over the impeachment because all the Members thereof are subject to impeachment."125 But this argument is very much like saying the Legislature has a moral compulsion not to pass laws with penalty clauses because Members of the House of Representatives are subject to them.

The exercise of judicial restraint over justiciable issues is not an option before this Court. Adjudication may not be declined, because this Court is not legally disqualified. Nor can jurisdiction be renounced as there is no other tribunal to which the controversy may be referred."126 Otherwise, this Court would be shirking from its duty vested under Art. VIII, Sec. 1(2) of the Constitution. More than being clothed with authority thus, this Court is duty-bound to take cognizance of the instant petitions.127 In the august words of amicus

curiae Father Bernas, "jurisdiction is not just a power; it is a solemn duty which may not be renounced. To renounce it, even if it is vexatious, would be a dereliction of duty."

Even in cases where it is an interested party, the Court under our system of government cannot inhibit itself and must rule upon the challenge because no other office has the authority to do so.128 On the occasion that this Court had been an interested party to the controversy before it, it has acted upon the matter "not with officiousness but in the discharge of an unavoidable duty and, as always, with detachment and fairness."129 After all, "by [his] appointment to the office, the public has laid on [a member of the judiciary] their confidence that [he] is mentally and morally fit to pass upon the merits of their varied contentions. For this reason, they expect [him] to be fearless in [his] pursuit to render justice, to be unafraid to displease any person, interest or power and to be equipped with a moral fiber strong enough to resist the temptations lurking in [his] office."130

The duty to exercise the power of adjudication regardless of interest had already been settled in the case of Abbas v. Senate Electoral Tribunal.131 In that case, the petitioners filed with the respondent Senate Electoral Tribunal a Motion for Disqualification or Inhibition of the Senators-Members thereof from the hearing and resolution of SET Case No. 002-87 on the ground that all of them were interested parties to said case as respondents therein. This would have reduced the Tribunal's membership to only its three Justices-Members whose disqualification was not sought, leaving them to decide the matter. This Court held:

Where, as here, a situation is created which precludes the substitution of any Senator sitting in the Tribunal by any of his other colleagues in the Senate without inviting the same objections to the substitute's competence, the proposed mass disqualification, if sanctioned and ordered, would leave the Tribunal no alternative but to abandon a duty that no other court or body can perform, but which it cannot lawfully discharge if shorn of the participation of its entire membership of Senators.

To our mind, this is the overriding consideration — that the Tribunal

be not prevented from discharging a duty which it alone has the power to perform, the performance of which is in the highest public interest as evidenced by its being expressly imposed by no less than the fundamental law.

It is aptly noted in the first of the questioned Resolutions that the framers of the Constitution could not have been unaware of the possibility of an election contest that would involve all Senators—elect, six of whom would inevitably have to sit in judgment thereon. Indeed, such possibility might surface again in the wake of the 1992 elections when once more, but for the last time, all 24 seats in the Senate will be at stake. Yet the Constitution provides no scheme or mode for settling such unusual situations or for the substitution of Senators designated to the Tribunal whose disqualification may be sought. Litigants in such situations must simply place their trust and hopes of vindication in the fairness and sense of justice of the Members of the Tribunal. Justices and Senators, singly and collectively.

Let us not be misunderstood as saying that no Senator-Member of the Senate Electoral Tribunal may inhibit or disqualify himself from sitting in judgment on any case before said Tribunal. Every Member of the Tribunal may, as his conscience dictates, refrain from participating in the resolution of a case where he sincerely feels that his personal interests or biases would stand in the way of an objective and impartial judgment. What we are merely saying is that in the light of the Constitution, the Senate Electoral Tribunal cannot legally function as such, absent its entire membership of Senators and that no amendment of its Rules can confer on the three Justices-Members alone the power of valid adjudication of a senatorial election contest.

More recently in the case of Estrada v. Desierto,132 it was held that:

Moreover, to disqualify any of the members of the Court, particularly a majority of them, is nothing short of pro tanto depriving the Court itself of its jurisdiction as established by the fundamental law. Disqualification of a judge is a deprivation of his judicial power. And if that judge is the one designated by the Constitution to exercise the jurisdiction of his court, as is the case with the Justices of this Court,

the deprivation of his or their judicial power is equivalent to the deprivation of the judicial power of the court itself. It affects the very heart of judicial independence. The proposed mass disqualification, if sanctioned and ordered, would leave the Court no alternative but to abandon a duty which it cannot lawfully discharge if shorn of the participation of its entire membership of Justices.133 (Italics in the original)

Besides, there are specific safeguards already laid down by the Court when it exercises its power of judicial review.

In Demetria v. Alba,134 this Court, through Justice Marcelo Fernan cited the "seven pillars" of limitations of the power of judicial review, enunciated by US Supreme Court Justice Brandeis in Ashwander v. TVA135 as follows:

1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary proceeding, declining because to decide such questions 'is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.'

2. The Court will not 'anticipate a question of constitutional law in advance of the necessity of deciding it.' . . . 'It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.'

3. The Court will not 'formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.'

4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. Appeals from the highest court of a state challenging its decision of a question under the Federal Constitution are frequently dismissed because the judgment can be sustained on an

independent state ground.

5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right. Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained . . . In Fairchild v. Hughes, the Court affirmed the dismissal of a suit brought by a citizen who sought to have the Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon, the challenge of the federal Maternity Act was not entertained although made by the Commonwealth on behalf of all its citizens.

6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.

7. When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided (citations omitted).

The foregoing "pillars" of limitation of judicial review, summarized in Ashwander v. TVA from different decisions of the United States Supreme Court, can be encapsulated into the following categories:

1. that there be absolute necessity of deciding a case

2. that rules of constitutional law shall be formulated only as required by the facts of the case

3. that judgment may not be sustained on some other ground

4. that there be actual injury sustained by the party by reason of the operation of the statute

5. that the parties are not in estoppel

6. that the Court upholds the presumption of constitutionality.

As stated previously, parallel guidelines have been adopted by this Court in the exercise of judicial review:

1. actual case or controversy calling for the exercise of judicial power

2. the person challenging the act must have "standing" to challenge; he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement

3. the question of constitutionality must be raised at the earliest possible opportunity

4. the issue of constitutionality must be the very lis mota of the case.136

Respondents Speaker de Venecia, et. al. raise another argument for judicial restraint the possibility that "judicial review of impeachments might also lead to embarrassing conflicts between the Congress and the [J]udiciary." They stress the need to avoid the appearance of impropriety or conflicts of interest in judicial hearings, and the scenario that it would be confusing and humiliating and risk serious political instability at home and abroad if the judiciary countermanded the vote of Congress to remove an impeachable official.137 Intervenor Soriano echoes this argument by alleging that failure of this Court to enforce its Resolution against Congress would result in the diminution of its judicial authority and erode public confidence and faith in the judiciary.

Such an argument, however, is specious, to say the least. As correctly stated by the Solicitor General, the possibility of the occurrence of a constitutional crisis is not a reason for this Court to refrain from upholding the Constitution in all impeachment cases. Justices cannot abandon their constitutional duties just because their action may start, if not precipitate, a crisis.

Justice Feliciano warned against the dangers when this Court refuses to act.

x x x Frequently, the fight over a controversial legislative or executive act is not regarded as settled until the Supreme Court has passed

upon the constitutionality of the act involved, the judgment has not only juridical effects but also political consequences. Those political consequences may follow even where the Court fails to grant the petitioner's prayer to nullify an act for lack of the necessary number of votes. Frequently, failure to act explicitly, one way or the other, itself constitutes a decision for the respondent and validation, or at least quasi-validation, follows." 138

Thus, in Javellana v. Executive Secretary139 where this Court was split and "in the end there were not enough votes either to grant the petitions, or to sustain respondent's claims,"140 the pre-existing constitutional order was disrupted which paved the way for the establishment of the martial law regime.

Such an argument by respondents and intervenor also presumes that the coordinate branches of the government would behave in a lawless manner and not do their duty under the law to uphold the Constitution and obey the laws of the land. Yet there is no reason to believe that any of the branches of government will behave in a precipitate manner and risk social upheaval, violence, chaos and anarchy by encouraging disrespect for the fundamental law of the land.

Substituting the word public officers for judges, this Court is well guided by the doctrine in People v. Veneracion, to wit:141

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

Constitutionality of the Rules of Procedurefor Impeachment Proceedingsadopted by the 12th Congress

Respondent House of Representatives, through Speaker De Venecia,

argues that Sections 16 and 17 of Rule V of the House Impeachment Rules do not violate Section 3 (5) of Article XI of our present Constitution, contending that the term "initiate" does not mean "to file;" that Section 3 (1) is clear in that it is the House of Representatives, as a collective body, which has the exclusive power to initiate all cases of impeachment; that initiate could not possibly mean "to file" because filing can, as Section 3 (2), Article XI of the Constitution provides, only be accomplished in 3 ways, to wit: (1) by a verified complaint for impeachment by any member of the House of Representatives; or (2) by any citizen upon a resolution of endorsement by any member; or (3) by at least 1/3 of all the members of the House. Respondent House of Representatives concludes that the one year bar prohibiting the initiation of impeachment proceedings against the same officials could not have been violated as the impeachment complaint against Chief Justice Davide and seven Associate Justices had not been initiated as the House of Representatives, acting as the collective body, has yet to act on it.

The resolution of this issue thus hinges on the interpretation of the term "initiate." Resort to statutory construction is, therefore, in order.

That the sponsor of the provision of Section 3(5) of the Constitution, Commissioner Florenz Regalado, who eventually became an Associate Justice of this Court, agreed on the meaning of "initiate" as "to file," as proffered and explained by Constitutional Commissioner Maambong during the Constitutional Commission proceedings, which he (Commissioner Regalado) as amicus curiae affirmed during the oral arguments on the instant petitions held on November 5, 2003 at which he added that the act of "initiating" included the act of taking initial action on the complaint, dissipates any doubt that indeed the word "initiate" as it twice appears in Article XI (3) and (5) of the Constitution means to file the complaint and take initial action on it.

"Initiate" of course is understood by ordinary men to mean, as dictionaries do, to begin, to commence, or set going. As Webster's Third New International Dictionary of the English Language concisely puts it, it means "to perform or facilitate the first action," which jibes with Justice Regalado's position, and that of Father Bernas, who elucidated during the oral arguments of the instant petitions on

November 5, 2003 in this wise:

Briefly then, an impeachment proceeding is not a single act. It is a comlexus of acts consisting of a beginning, a middle and an end. The end is the transmittal of the articles of impeachment to the Senate. The middle consists of those deliberative moments leading to the formulation of the articles of impeachment. The beginning or the initiation is the filing of the complaint and its referral to the Committee on Justice.

Finally, it should be noted that the House Rule relied upon by Representatives Cojuangco and Fuentebella says that impeachment is "deemed initiated" when the Justice Committee votes in favor of impeachment or when the House reverses a contrary vote of the Committee. Note that the Rule does not say "impeachment proceedings" are initiated but rather are "deemed initiated." The language is recognition that initiation happened earlier, but by legal fiction there is an attempt to postpone it to a time after actual initiation. (Emphasis and underscoring supplied)

As stated earlier, one of the means of interpreting the Constitution is looking into the intent of the law. Fortunately, the intent of the framers of the 1987 Constitution can be pried from its records:

MR. MAAMBONG. With reference to Section 3, regarding the procedure and the substantive provisions on impeachment, I understand there have been many proposals and, I think, these would need some time for Committee action.

However, I would just like to indicate that I submitted to the Committee a resolution on impeachment proceedings, copies of which have been furnished the Members of this body. This is borne out of my experience as a member of the Committee on Justice, Human Rights and Good Government which took charge of the last impeachment resolution filed before the First Batasang Pambansa. For the information of the Committee, the resolution covers several steps in the impeachment proceedings starting with initiation, action of the Speaker committee action, calendaring of report, voting on the report, transmittal referral to the Senate, trial and judgment by the Senate.

x x x

MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the approval of the amendment submitted by Commissioner Regalado, but I will just make of record my thinking that we do not really initiate the filing of the Articles of Impeachment on the floor. The procedure, as I have pointed out earlier, was that the initiation starts with the filing of the complaint. And what is actually done on the floor is that the committee resolution containing the Articles of Impeachment is the one approved by the body.

As the phraseology now runs, which may be corrected by the Committee on Style, it appears that the initiation starts on the floor. If we only have time, I could cite examples in the case of the impeachment proceedings of President Richard Nixon wherein the Committee on the Judiciary submitted the recommendation, the resolution, and the Articles of Impeachment to the body, and it was the body who approved the resolution. It is not the body which initiates it. It only approves or disapproves the resolution. So, on that score, probably the Committee on Style could help in rearranging these words because we have to be very technical about this. I have been bringing with me The Rules of the House of Representatives of the U.S. Congress. The Senate Rules are with me. The proceedings on the case of Richard Nixon are with me. I have submitted my proposal, but the Committee has already decided. Nevertheless, I just want to indicate this on record.

x x x

MR. MAAMBONG. I would just like to move for a reconsideration of the approval of Section 3 (3). My reconsideration will not at all affect the substance, but it is only in keeping with the exact formulation of the Rules of the House of Representatives of the United States regarding impeachment.

I am proposing, Madam President, without doing damage to any of this provision, that on page 2, Section 3 (3), from lines 17 to 18, we delete the words which read: "to initiate impeachment proceedings" and the comma (,) and insert on line 19 after the word

"resolution" the phrase WITH THE ARTICLES, and then capitalize the letter "i" in "impeachment" and replace the word "by" with OF, so that the whole section will now read: "A vote of at least one-third of all the Members of the House shall be necessary either to affirm a resolution WITH THE ARTICLES of Impeachment OF the Committee or to override its contrary resolution. The vote of each Member shall be recorded."

I already mentioned earlier yesterday that the initiation, as far as the House of Representatives of the United States is concerned, really starts from the filing of the verified complaint and every resolution to impeach always carries with it the Articles of Impeachment. As a matter of fact, the words "Articles of Impeachment" are mentioned on line 25 in the case of the direct filing of a verified compliant of one-third of all the Members of the House. I will mention again, Madam President, that my amendment will not vary the substance in any way. It is only in keeping with the uniform procedure of the House of Representatives of the United States Congress. Thank you, Madam President.143 (Italics in the original; emphasis and udnerscoring supplied)

This amendment proposed by Commissioner Maambong was clarified and accepted by the Committee on the Accountability of Public Officers.144

It is thus clear that the framers intended "initiation" to start with the filing of the complaint. In his amicus curiae brief, Commissioner Maambong explained that "the obvious reason in deleting the phrase "to initiate impeachment proceedings" as contained in the text of the provision of Section 3 (3) was to settle and make it understood once and for all that the initiation of impeachment proceedings starts with the filing of the complaint, and the vote of one-third of the House in a resolution of impeachment does not initiate the impeachment proceedings which was already initiated by the filing of a verified complaint under Section 3, paragraph (2), Article XI of the Constitution."145

Amicus curiae Constitutional Commissioner Regalado is of the same view as is Father Bernas, who was also a member of the 1986 Constitutional Commission, that the word "initiate" as used in Article

XI, Section 3(5) means to file, both adding, however, that the filing must be accompanied by an action to set the complaint moving.

During the oral arguments before this Court, Father Bernas clarified that the word "initiate," appearing in the constitutional provision on impeachment, viz:

Section 3 (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment.

x x x

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

refers to two objects, "impeachment case" and "impeachment proceeding."

Father Bernas explains that in these two provisions, the common verb is "to initiate." The object in the first sentence is "impeachment case." The object in the second sentence is "impeachment proceeding." Following the principle of reddendo singuala sinuilis, the term "cases" must be distinguished from the term "proceedings." An impeachment case is the legal controversy that must be decided by the Senate. Above-quoted first provision provides that the House, by a vote of one-third of all its members, can bring a case to the Senate. It is in that sense that the House has "exclusive power" to initiate all cases of impeachment. No other body can do it. However, before a decision is made to initiate a case in the Senate, a "proceeding" must be followed to arrive at a conclusion. A proceeding must be "initiated." To initiate, which comes from the Latin word initium, means to begin. On the other hand, proceeding is a progressive noun. It has a beginning, a middle, and an end. It takes place not in the Senate but in the House and consists of several steps: (1) there is the filing of a verified complaint either by a Member of the House of Representatives or by a private citizen endorsed by a Member of the House of the Representatives; (2) there is the processing of this complaint by the proper Committee which may either reject the complaint or uphold it; (3) whether the resolution of the Committee rejects or upholds the complaint, the resolution must be forwarded to

the House for further processing; and (4) there is the processing of the same complaint by the House of Representatives which either affirms a favorable resolution of the Committee or overrides a contrary resolution by a vote of one-third of all the members. If at least one third of all the Members upholds the complaint, Articles of Impeachment are prepared and transmitted to the Senate. It is at this point that the House "initiates an impeachment case." It is at this point that an impeachable public official is successfully impeached. That is, he or she is successfully charged with an impeachment "case" before the Senate as impeachment court.

Father Bernas further explains: The "impeachment proceeding" is not initiated when the complaint is transmitted to the Senate for trial because that is the end of the House proceeding and the beginning of another proceeding, namely the trial. Neither is the "impeachment proceeding" initiated when the House deliberates on the resolution passed on to it by the Committee, because something prior to that has already been done. The action of the House is already a further step in the proceeding, not its initiation or beginning. Rather, the proceeding is initiated or begins, when a verified complaint is filed and referred to the Committee on Justice for action. This is the initiating step which triggers the series of steps that follow.

The framers of the Constitution also understood initiation in its ordinary meaning. Thus when a proposal reached the floor proposing that "A vote of at least one-third of all the Members of the House shall be necessary… to initiate impeachment proceedings," this was met by a proposal to delete the line on the ground that the vote of the House does not initiate impeachment proceeding but rather the filing of a complaint does.146 Thus the line was deleted and is not found in the present Constitution.

Father Bernas concludes that when Section 3 (5) says, "No impeachment proceeding shall be initiated against the same official more than once within a period of one year," it means that no second verified complaint may be accepted and referred to the Committee on Justice for action. By his explanation, this interpretation is founded on the common understanding of the meaning of "to initiate" which means to begin. He reminds that the Constitution is ratified by the people, both ordinary and sophisticated, as they understand it; and

that ordinary people read ordinary meaning into ordinary words and not abstruse meaning, they ratify words as they understand it and not as sophisticated lawyers confuse it.

To the argument that only the House of Representatives as a body can initiate impeachment proceedings because Section 3 (1) says "The House of Representatives shall have the exclusive power to initiate all cases of impeachment," This is a misreading of said provision and is contrary to the principle of reddendo singula singulis by equating "impeachment cases" with "impeachment proceeding."

From the records of the Constitutional Commission, to the amicus curiae briefs of two former Constitutional Commissioners, it is without a doubt that the term "to initiate" refers to the filing of the impeachment complaint coupled with Congress' taking initial action of said complaint.

Having concluded that the initiation takes place by the act of filing and referral or endorsement of the impeachment complaint to the House Committee on Justice or, by the filing by at least one-third of the members of the House of Representatives with the Secretary General of the House, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated, another impeachment complaint may not be filed against the same official within a one year period.

Under Sections 16 and 17 of Rule V of the House Impeachment Rules, impeachment proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice that the verified complaint and/or resolution is sufficient in substance, or (2) once the House itself affirms or overturns the finding of the Committee on Justice that the verified complaint and/or resolution is not sufficient in substance or (3) by the filing or endorsement before the Secretary-General of the House of Representatives of a verified complaint or a resolution of impeachment by at least 1/3 of the members of the House. These rules clearly contravene Section 3 (5) of Article XI since the rules give the term "initiate" a meaning different meaning from filing and referral.

In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could not use contemporaneous construction as an aid in the

interpretation of Sec.3 (5) of Article XI, citing Vera v. Avelino147

wherein this Court stated that "their personal opinions (referring to Justices who were delegates to the Constitution Convention) on the matter at issue expressed during this Court's our deliberations stand on a different footing from the properly recorded utterances of debates and proceedings." Further citing said case, he states that this Court likened the former members of the Constitutional Convention to actors who are so absorbed in their emotional roles that intelligent spectators may know more about the real meaning because of the latter's balanced perspectives and disinterestedness.148

Justice Gutierrez's statements have no application in the present petitions. There are at present only two members of this Court who participated in the 1986 Constitutional Commission – Chief Justice Davide and Justice Adolf Azcuna. Chief Justice Davide has not taken part in these proceedings for obvious reasons. Moreover, this Court has not simply relied on the personal opinions now given by members of the Constitutional Commission, but has examined the records of the deliberations and proceedings thereof.

Respondent House of Representatives counters that under Section 3 (8) of Article XI, it is clear and unequivocal that it and only it has the power to make and interpret its rules governing impeachment. Its argument is premised on the assumption that Congress has absolute power to promulgate its rules. This assumption, however, is misplaced.

Section 3 (8) of Article XI provides that "The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section." Clearly, its power to promulgate its rules on impeachment is limited by the phrase "to effectively carry out the purpose of this section." Hence, these rules cannot contravene the very purpose of the Constitution which said rules were intended to effectively carry out. Moreover, Section 3 of Article XI clearly provides for other specific limitations on its power to make rules, viz:

Section 3. (1) x x x

(2) A verified complaint for impeachment may be filed by any Member

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

(3) A vote of at least one-third of all the Members of the House shall be necessary to either affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded.

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

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

It is basic that all rules must not contravene the Constitution which is the fundamental law. If as alleged Congress had absolute rule making power, then it would by necessary implication have the power to alter or amend the meaning of the Constitution without need of referendum.

In Osmeña v. Pendatun,149 this Court held that it is within the province of either House of Congress to interpret its rules and that it was the best judge of what constituted "disorderly behavior" of its members. However, in Paceta v. Secretary of the Commission on Appointments,150 Justice (later Chief Justice) Enrique Fernando, speaking for this Court and quoting Justice Brandeis in United States v. Smith,151 declared that where the construction to be given to a rule affects persons other than members of the Legislature, the question becomes judicial in nature. In Arroyo v. De Venecia,152 quoting United States v. Ballin, Joseph & Co.,153 Justice Vicente Mendoza, speaking for this Court, held that while the Constitution empowers each house

to determine its rules of proceedings, it may not by its rules ignore constitutional restraints or violate fundamental rights, and further that there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. It is only within these limitations that all matters of method are open to the determination of the Legislature. In the same case of Arroyo v. De Venecia, Justice Reynato S. Puno, in his Concurring and Dissenting Opinion, was even more emphatic as he stressed that in the Philippine setting there is even more reason for courts to inquire into the validity of the Rules of Congress, viz:

With due respect, I do not agree that the issues posed by the petitioner are non-justiciable. Nor do I agree that we will trivialize the principle of separation of power if we assume jurisdiction over he case at bar. Even in the United States, the principle of separation of power is no longer an impregnable impediment against the interposition of judicial power on cases involving breach of rules of procedure by legislators.

Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1) as a window to view the issues before the Court. It is in Ballin where the US Supreme Court first defined the boundaries of the power of the judiciary to review congressional rules. It held:

"x x x

"The Constitution, in the same section, provides, that each house may determine the rules of its proceedings." It appears that in pursuance of this authority the House had, prior to that day, passed this as one of its rules:

Rule XV

3. On the demand of any member, or at the suggestion of the Speaker, the names of members sufficient to make a quorum in the hall of the House who do not vote shall be noted by the clerk and recorded in the journal, and reported to the Speaker with the names of the members voting, and be counted and announced in determining the presence of a quorum to do business. (House Journal, 230, Feb. 14, 1890)

The action taken was in direct compliance with this rule. The question, therefore, is as to the validity of this rule, and not what methods the Speaker may of his own motion resort to for determining the presence of a quorum, nor what matters the Speaker or clerk may of their own volition place upon the journal. Neither do the advantages or disadvantages, the wisdom or folly, of such a rule present any matters for judicial consideration. With the courts the question is only one of power. The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceedings established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the House, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the House, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal."

Ballin, clearly confirmed the jurisdiction of courts to pass upon the validity of congressional rules, i.e, whether they are constitutional. Rule XV was examined by the Court and it was found to satisfy the test: (1) that it did not ignore any constitutional restraint; (2) it did not violate any fundamental right; and (3) its method had a reasonable relationship with the result sought to be attained. By examining Rule XV, the Court did not allow its jurisdiction to be defeated by the mere invocation of the principle of separation of powers.154

x x x

In the Philippine setting, there is a more compelling reason for courts to categorically reject the political question defense when its interposition will cover up abuse of power. For section 1, Article VIII of our Constitution was intentionally cobbled to empower courts "x x x to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of

jurisdiction on the part of any branch or instrumentality of the government." This power is new and was not granted to our courts in the 1935 and 1972 Constitutions. It was not also xeroxed from the US Constitution or any foreign state constitution. The CONCOM granted this enormous power to our courts in view of our experience under martial law where abusive exercises of state power were shielded from judicial scrutiny by the misuse of the political question doctrine. Led by the eminent former Chief Justice Roberto Concepcion, the CONCOM expanded and sharpened the checking powers of the judiciary vis-à-vis the Executive and the Legislative departments of government.155

x x x

The Constitution cannot be any clearer. What it granted to this Court is not a mere power which it can decline to exercise. Precisely to deter this disinclination, the Constitution imposed it as a duty of this Court to strike down any act of a branch or instrumentality of government or any of its officials done with grave abuse of discretion amounting to lack or excess of jurisdiction. Rightly or wrongly, the Constitution has elongated the checking powers of this Court against the other branches of government despite their more democratic character, the President and the legislators being elected by the people.156

x x x

The provision defining judicial power as including the 'duty of the courts of justice. . . to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government' constitutes the capstone of the efforts of the Constitutional Commission to upgrade the powers of this court vis-à-vis the other branches of government. This provision was dictated by our experience under martial law which taught us that a stronger and more independent judiciary is needed to abort abuses in government. x x x

x x x

In sum, I submit that in imposing to this Court the duty to annul acts

of government committed with grave abuse of discretion, the new Constitution transformed this Court from passivity to activism. This transformation, dictated by our distinct experience as nation, is not merely evolutionary but revolutionary. Under the 1935 and the 1973 Constitutions, this Court approached constitutional violations by initially determining what it cannot do; under the 1987 Constitution, there is a shift in stress – this Court is mandated to approach constitutional violations not by finding out what it should not do but what it must do. The Court must discharge this solemn duty by not resuscitating a past that petrifies the present.

I urge my brethren in the Court to give due and serious consideration to this new constitutional provision as the case at bar once more calls us to define the parameters of our power to review violations of the rules of the House. We will not be true to our trust as the last bulwark against government abuses if we refuse to exercise this new power or if we wield it with timidity. To be sure, it is this exceeding timidity to unsheathe the judicial sword that has increasingly emboldened other branches of government to denigrate, if not defy, orders of our courts. In Tolentino, I endorsed the view of former Senator Salonga that this novel provision stretching the latitude of judicial power is distinctly Filipino and its interpretation should not be depreciated by undue reliance on inapplicable foreign jurisprudence. In resolving the case at bar, the lessons of our own history should provide us the light and not the experience of foreigners.157 (Italics in the original emphasis and underscoring supplied)

Thus, the ruling in Osmena v. Pendatun is not applicable to the instant petitions. Here, the third parties alleging the violation of private rights and the Constitution are involved.

Neither may respondent House of Representatives' rely on Nixon v. US158 as basis for arguing that this Court may not decide on the constitutionality of Sections 16 and 17 of the House Impeachment Rules. As already observed, the U.S. Federal Constitution simply provides that "the House of Representatives shall have the sole power of impeachment." It adds nothing more. It gives no clue whatsoever as to how this "sole power" is to be exercised. No limitation whatsoever is given. Thus, the US Supreme Court

concluded that there was a textually demonstrable constitutional commitment of a constitutional power to the House of Representatives. This reasoning does not hold with regard to impeachment power of the Philippine House of Representatives since our Constitution, as earlier enumerated, furnishes several provisions articulating how that "exclusive power" is to be exercised.

The provisions of Sections 16 and 17 of Rule V of the House Impeachment Rules which state that impeachment proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice that the verified complaint and/or resolution is sufficient in substance, or (2) once the House itself affirms or overturns the finding of the Committee on Justice that the verified complaint and/or resolution is not sufficient in substance or (3) by the filing or endorsement before the Secretary-General of the House of Representatives of a verified complaint or a resolution of impeachment by at least 1/3 of the members of the House thus clearly contravene Section 3 (5) of Article XI as they give the term "initiate" a meaning different from "filing."

Validity of the Second Impeachment Complaint

Having concluded that the initiation takes place by the act of filing of the impeachment complaint and referral to the House Committee on Justice, the initial action taken thereon, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated in the foregoing manner, another may not be filed against the same official within a one year period following Article XI, Section 3(5) of the Constitution.

In fine, considering that the first impeachment complaint, was filed by former President Estrada against Chief Justice Hilario G. Davide, Jr., along with seven associate justices of this Court, on June 2, 2003 and referred to the House Committee on Justice on August 5, 2003, the second impeachment complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix William Fuentebella against the Chief Justice on October 23, 2003 violates the constitutional prohibition against the initiation of impeachment proceedings against the same impeachable officer within a one-year period.

Conclusion

If there is anything constant about this country, it is that there is always a phenomenon that takes the center stage of our individual and collective consciousness as a people with our characteristic flair for human drama, conflict or tragedy. Of course this is not to demean the seriousness of the controversy over the Davide impeachment. For many of us, the past two weeks have proven to be an exasperating, mentally and emotionally exhausting experience. Both sides have fought bitterly a dialectical struggle to articulate what they respectively believe to be the correct position or view on the issues involved. Passions had ran high as demonstrators, whether for or against the impeachment of the Chief Justice, took to the streets armed with their familiar slogans and chants to air their voice on the matter. Various sectors of society - from the business, retired military, to the academe and denominations of faith – offered suggestions for a return to a state of normalcy in the official relations of the governmental branches affected to obviate any perceived resulting instability upon areas of national life.

Through all these and as early as the time when the Articles of Impeachment had been constituted, this Court was specifically asked, told, urged and argued to take no action of any kind and form with respect to the prosecution by the House of Representatives of the impeachment complaint against the subject respondent public official. When the present petitions were knocking so to speak at the doorsteps of this Court, the same clamor for non-interference was made through what are now the arguments of "lack of jurisdiction," "non-justiciability," and "judicial self-restraint" aimed at halting the Court from any move that may have a bearing on the impeachment proceedings.

This Court did not heed the call to adopt a hands-off stance as far as the question of the constitutionality of initiating the impeachment complaint against Chief Justice Davide is concerned. To reiterate what has been already explained, the Court found the existence in full of all the requisite conditions for its exercise of its constitutionally vested power and duty of judicial review over an issue whose resolution precisely called for the construction or interpretation of a provision of the fundamental law of the land. What lies in here is an

issue of a genuine constitutional material which only this Court can properly and competently address and adjudicate in accordance with the clear-cut allocation of powers under our system of government. Face-to-face thus with a matter or problem that squarely falls under the Court's jurisdiction, no other course of action can be had but for it to pass upon that problem head on.

The claim, therefore, that this Court by judicially entangling itself with the process of impeachment has effectively set up a regime of judicial supremacy, is patently without basis in fact and in law.

This Court in the present petitions subjected to judicial scrutiny and resolved on the merits only the main issue of whether the impeachment proceedings initiated against the Chief Justice transgressed the constitutionally imposed one-year time bar rule. Beyond this, it did not go about assuming jurisdiction where it had none, nor indiscriminately turn justiciable issues out of decidedly political questions. Because it is not at all the business of this Court to assert judicial dominance over the other two great branches of the government. Rather, the raison d'etre of the judiciary is to complement the discharge by the executive and legislative of their own powers to bring about ultimately the beneficent effects of having founded and ordered our society upon the rule of law.

It is suggested that by our taking cognizance of the issue of constitutionality of the impeachment proceedings against the Chief Justice, the members of this Court have actually closed ranks to protect a brethren. That the members' interests in ruling on said issue is as much at stake as is that of the Chief Justice. Nothing could be farther from the truth.

The institution that is the Supreme Court together with all other courts has long held and been entrusted with the judicial power to resolve conflicting legal rights regardless of the personalities involved in the suits or actions. This Court has dispensed justice over the course of time, unaffected by whomsoever stood to benefit or suffer therefrom, unfraid by whatever imputations or speculations could be made to it, so long as it rendered judgment according to the law and the facts. Why can it not now be trusted to wield judicial power in these petitions just because it is the highest ranking magistrate who is

involved when it is an incontrovertible fact that the fundamental issue is not him but the validity of a government branch's official act as tested by the limits set by the Constitution? Of course, there are rules on the inhibition of any member of the judiciary from taking part in a case in specified instances. But to disqualify this entire institution now from the suit at bar is to regard the Supreme Court as likely incapable of impartiality when one of its members is a party to a case, which is simply a non sequitur.

No one is above the law or the Constitution. This is a basic precept in any legal system which recognizes equality of all men before the law as essential to the law's moral authority and that of its agents to secure respect for and obedience to its commands. Perhaps, there is no other government branch or instrumentality that is most zealous in protecting that principle of legal equality other than the Supreme Court which has discerned its real meaning and ramifications through its application to numerous cases especially of the high-profile kind in the annals of jurisprudence. The Chief Justice is not above the law and neither is any other member of this Court. But just because he is the Chief Justice does not imply that he gets to have less in law than anybody else. The law is solicitous of every individual's rights irrespective of his station in life.

The Filipino nation and its democratic institutions have no doubt been put to test once again by this impeachment case against Chief Justice Hilario Davide. Accordingly, this Court has resorted to no other than the Constitution in search for a solution to what many feared would ripen to a crisis in government. But though it is indeed immensely a blessing for this Court to have found answers in our bedrock of legal principles, it is equally important that it went through this crucible of a democratic process, if only to discover that it can resolve differences without the use of force and aggression upon each other.

WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment Proceedings which were approved by the House of Representatives on November 28, 2001 are unconstitutional. Consequently, the second impeachment complaint against Chief Justice Hilario G. Davide, Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix William B.

Fuentebella with the Office of the Secretary General of the House of Representatives on October 23, 2003 is barred under paragraph 5, section 3 of Article XI of the Constitution.

SO ORDERED.

Bellosillo and Tinga, JJ., see separate opinion.Puno, and Ynares-Santiago, J., see concurring and dissenting opinion.Vitug, Panganiban, Sandoval-Gutierrez and Callejo, Sr., JJ., see separate concurring opinion.Quisumbing, J., concurring separate opinion received.Carpio, J., concur.Austria-Martinez, J., concur in the majority opinion and in the separate opinion of J. Vitug.Corona, J., will write a separate concurring opinion.Azcuna, J., concur in the separate opinion.

Footnotes

THIRD DIVISION  

THE HEIRS OF GEORGE Y. POE,Petitioners,

- versus -

MALAYAN INSURANCE COMPANY, INC.,Respondent.

G.R. No. 156302

Present:

YNARES-SANTIAGO, J.,Chairperson,CARPIO MORALES,*

CHICO-NAZARIO,NACHURA, andPERALTA, JJ.

Promulgated:

April 7, 2009

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

D E C I S I O N  CHICO-NAZARIO, J.:  The instant Petition for Review under Rule 45[1]of the Rules of Court assails the Decision[2] dated 26 June 2002 of the Court of Appeals in CA-G.R. SP No. 67297, which granted the Petition for Certiorari of respondent Malayan Insurance Company, Inc. (MICI) and recalled and set aside the Order[3] dated 6 September 2001 of the Regional Trial Court (RTC), Branch 73, of Antipolo City, in Civil Case No. 93-2705. The RTC, in its recalled Order, denied the Notice of Appeal of MICI and granted the Motion for the Issuance of a Writ of Execution filed by petitioners Heirs of George Y. Poe. The present Petition also challenges the Resolution[4] dated 29 November 2002 of the appellate court denying petitioners Motion for Reconsideration.

Records show that on 26 January 1996 at about 4:45 a.m., George Y. Poe (George) while waiting for a ride to work in front of Capital Garments Corporation, Ortigas Avenue Extension, Barangay Dolores, Taytay, Rizal,

was run over by a ten-wheeler Isuzu hauler truck with Plate No. PMH-858 owned by Rhoda Santos (Rhoda), and then being driven by Willie Labrador (Willie).[5] The said truck was insured with respondent MICI under Policy No. CV-293-007446-8. To seek redress for Georges untimely death, his heirs and herein petitioners, namely, his widow Emercelinda, and their children Flerida and Fernando, filed with the RTC a Complaint for damages against Rhoda and respondent MICI, docketed as Civil Case No. 93-2705.[6] Petitioners identified Rhoda and respondent MICI, as follows: 

Defendant RHODA SANTOS is likewise of legal age, Filipino and a resident of Real Street, Pamplona, Las Pias, Metro Manila where she may be served with summons and other court processes. [Herein respondent] MALAYAN INSURANCE COMPANY, INC. (hereinafter [MICI] for brevity) is a corporation duly organized and existing under Philippine law with address at Yuchengco Bldg., 484 Q. Paredes Street, Binondo, Manila where it may be served with summons and other processes of this Honorable Court; Defendant Rhoda Santos, who is engaged in the business, among others, of selling gravel and sand is the registered owner of one Isuzu Truck, with Plate No. PMH-858 and is the employer of Willie Labrador the authorized driver of the aforesaid

truck. [Respondent MICI] on the other hand is the insurer of Rhoda Santos under a valid and existing insurance policy duly issued by said [MICI], Policy No. CV-293-007446-8 over the subject vehicle owned by Rhoda Santos, Truck-Hauler Isuzu 10 wheeler with plate no. PMH-858, serial no. SRZ451-1928340 and motor no. 10PA1-403803. Under said insurance policy, [MICI] binds itself, among others, to be liable for damages as well as any bodily injury to third persons which may be caused by the operation of the insured vehicle.[7]  

And prayed that: [J]udgment issue in favor of [herein petitioners] ordering [Rhoda and herein respondent MICI] jointly and solidarily to pay the [petitioners] the following: 1. Actual damages in the total amount of THIRTY SIX THOUSAND (P36,000.00) PESOS for funeral and burial expenses; 2. Actual damages in the amount of EIGHT HUNDRED FIVE THOUSAND NINE HUNDRED EIGHTY FOUR (P805,984.00) PESOS as loss of earnings and financial support given by the deceased by reason of his income and employment; 3. Moral damages in the amount of FIFTY THOUSAND (P50,000.00) PESOS;

 4. Exemplary damages in the amount of FIFTY THOUSAND (P50,000.00) PESOS; 5. Attorneys fees in the amount of FIFTY THOUSAND (P50,000.00) PESOS and litigation expense in the amount of ONE THOUSAND FIVE HUNDRED (P1,500.00) PESOS for each court appearance; 6. The costs of suit. Other reliefs just and equitable in the premises are likewise prayed for.[8]  

Rhoda and respondent MICI made the following admissions in their Joint Answer[9]: 

That [Rhoda and herein respondent MICI] admit the allegations in paragraphs 2, 3 and 4 of the complaint; That [Rhoda and respondent MICI] admit the allegations in paragraph 5 of the complaint that the cargo truck is insured with [respondent] Malayan Insurance Company, Inc. [(MICI)] however, the liability of the insured company attached only if there is a judicial pronouncement that the insured and her driver are liable and moreover, the liability of the insurance company is subject to the limitations set forth in the insurance policy.[10]  

Rhoda and respondent MICI denied liability for Georges death averring, among other defenses, that: a) the accident was caused by the negligent act of the victim George, who surreptitiously and unexpectedly crossed the road, catching the driver Willie by surprise, and despite the latters effort to swerve the truck to the right, the said vehicle still came into contact with the victim; b) the liability of respondent MICI, if any, would attach only upon a judicial pronouncement that the insured Rhoda and her driver Willie are liable; c) the liability of MICI should be based on the extent of the insurance coverage as embodied in Rhodas policy; and d) Rhoda had always exercised the diligence of a good father of a family in the selection and supervision of her driver Willie. After the termination of the pre-trial proceedings, trial on the merits ensued. Petitioners introduced and offered evidence in support of their claims for damages against MICI, and then rested their case. Thereafter, the hearings for the reception of the evidence of Rhoda and respondent MICI were scheduled, but they failed to adduce their evidence despite several postponements granted by the trial court. Thus, during the hearing on 9 June 1995, the RTC, upon motion of petitioners counsel, issued an Order[11] declaring that Rhoda and respondent MICI had waived their right to present evidence, and ordering

the parties to already submit their respective Memorandum within 15 days, after which, the case would be deemed submitted for decision. Rhoda and respondent MICI filed a Motion for Reconsideration[12] of the Order dated 9 June 1995, but it was denied by the RTC in another Order dated 11 August 1995.[13] Consequently, Rhoda and respondent MICI filed a Petition for Certiorari, Mandamus,[14] Prohibition and Injunction with Prayer for a Temporary Restraining Order and Writ of Preliminary Injunction, assailing the Orders dated 9 June 1995 and 11 August 1995 of the RTC foreclosing their right to adduce evidence in support of their defense. The Petition was docketed as CA-G.R. SP No. 38948. The Court of Appeals, through its Third Division, promulgated a Decision[15] on 29 April 1996, denying due course to the Petition in CA-G.R. SP No. 38948. Rhoda and respondent MICI elevated the matter to the Supreme Court via a Petition for Certiorari,[16] docketed as G.R. No. 126244. This Court likewise dismissed the Petition in G.R. No. 126244 in a Resolution dated 30 September 1996.[17] Entry of Judgment was made in G.R. No. 126244 on 8 November 1996.[18] 

On 28 February 2000, the RTC rendered a Decision in Civil Case No. 93-2705, the dispositive portion of which reads: 

Wherefore, [Rhoda and herein respondent MICI] are hereby ordered to pay jointly and solidarily to the [herein petitioners] the following: 1. Moral damages amounting to P100,000.00; 2. Actual damages for loss of earning capacity amounting to P805,984.00; 3. P36,000.00 for funeral expenses; 4. P50,000.00 as exemplary damages; 5. P50,000.00 for attorneys fees plus P1,500 per court appearance; and 6. Cost of suit.[19]  

Rhoda and respondent MICI received their copy of the foregoing RTC Decision on 14 March 2000.[20] On 22 March 2000, respondent MICI and Rhoda filed a Motion for Reconsideration[21] of said Decision, averring therein that the RTC erred in ruling that the obligation of Rhoda and respondent MICI to petitioners was solidary or joint and several; in computing Georges loss of earning capacity not in accord with established jurisprudence; and in awarding moral damages although

it was not buttressed by evidence. Resolving the Motion of respondent MICI and Rhoda, the RTC issued an Order[22] on 24 January 2001 modifying and amending its Decision dated 28 February 2000, and dismissing the case against respondent MICI. The RTC held that:

 After a careful evaluation of the issues at hand, the contention of the [herein respondent MICI] as far as the solidary liability of the insurance company with the other defendant [Rhoda] is meritorious. However, the assailed Decision can be modified or amended to correct the same honest inadvertence without necessarily reversing it and set aside to conform with the evidence on hand.  

The RTC also re-computed Georges loss of earning capacity, as follows: 

The computation of actual damages for loss of earning capacity was determined by applying the formula adopted in the American Expectancy Table of Mortality or the actuarial of Combined Experience Table of Mortality applied in x x x Villa Rey Transit, Inc. v. Court of Appeals (31 SCRA 521). Moral damages is awarded in accordance with Article 2206 of the New Civil Code of the Philippines. While death indemnity in the amount of P50,000.00 is automatically awarded in cases where the victim had died (People v.

Sison, September 14, 1990 [189 SCRA 643]).[23]  

In the end, the RTC decreed: 

WHEREFORE, in view of the foregoing consideration, the Decision of this Court dated 28 February 2000 is hereby amended or modified. Said Decision should read as follows: 

Wherefore, defendant Rhoda Santos is hereby ordered to pay to the [herein petitioners] the following: 1. Moral damages amounting to

P100,000.00; 2. Actual damages for loss of earning

capacity amounting to P102,106.00;

 3. P36,000.00 for funeral expenses; 4. P50,000.00 as death indemnity; 5. P50,000.00 for attorneys fees plus

P1,500.00 per court appearance;

 6. Costs of the suit. The case against Malayan Insurance Company, Inc. is hereby dismissed.[24]

  

It was petitioners turn to file a Motion for Reconsideration[25] of the 24 January 2001 Order, to which respondent MICI filed a Vigorous Opposition to the Plaintiffs Motion for Reconsideration.[26] On 15 June 2001, the RTC issued an Order reinstating its Decision dated 28 February 2000, relevant portions of which state: 

Finding the arguments raised by the [herein petitioners] in their Motion for Reconsideration of the Order of this Court dated January 24, 2001 to be more meritorious to [herein respondents] Malayan Insurance Co., Inc. (sic) arguments in its vigorous opposition thereto, said motion is hereby granted. Accordingly, the Order under consideration is hereby reconsidered and set aside. The decision of this Court dated February 28, 2000 is hereby reinstated. Notify parties herein.[27]  

Respondent MICI received a copy of the 15 June 2001 Order of the RTC on 27 June 2001. 

Aggrieved by the latest turn of events, respondent MICI filed on 9 July 2001 a Notice of Appeal[28] of the 28 February 2000 Decision of the RTC, reinstated by

the 15 June 2001 Resolution of the same court. Rhoda did not join respondent MICI in its Notice of Appeal.[29] Petitioners filed their Opposition[30] to the Notice of Appeal of respondent MICI, with a Motion for the Issuance of Writ of Execution. After considering the recent pleadings of the parties, the RTC, in its Order dated 6 September 2001, denied the Notice of Appeal of respondent MICI and granted petitioners Motion for the Issuance of Writ of Execution. The RTC reasoned in its Order: 

The records disclosed that on February 28, 2000 this Court rendered a Decision in favor of the [herein petitioners] and against [Rhoda and herein respondent MICI]. The Decision was said to have been received by MICI on March 14, 2000. Eight days after or on March 22, 2000, MICI mailed its Motion for Reconsideration to this Court and granted the same in the Order dated January 24, 2001. From this Order, [petitioners] filed a Motion for Reconsideration on February 21, 2001 to which MICI filed a vigorous opposition. On June 15, 2001 this Court granted [petitioners] motion reinstating the Decision dated February 28, 2000. According to MICI, the June 15, 2001 order was received by it on June 27, 2001. MICI filed a Notice of Appeal on July 9, 2001 or twelve (12) days from receipt of said Order. 

[Petitioners] contend that the Notice of Appeal was filed out of time while [respondent] MICI opposes, arguing otherwise. The latter interposed that the Order dated June 15, 2001 is in reality a new Decision thereby giving it a fresh fifteen (15) days within which to file notice of appeal. [Respondent] MICIs contention is not meritorious. The fifteen (15) day period within which to file a notice of appeal should be reckoned from the date it received the Decision on March 14, 2000. So that when MICI mailed its Motion for Reconsideration on March 22, 2000, eight (8) days had already lapsed, MICI has remaining seven (7) days to file a notice of appeal. However, when it received the last Order of this Court it took [respondent] MICI twelve (12) days to file the same. Needless to say, MICIs Notice of Appeal was filed out of time. The Court cannot countenance the argument of MICI that a resolution to a motion for a final order or judgment will have the effect of giving a fresh reglementary period. This would be contrary to what was provided in the rules of procedure.[31]  

Accordingly, the RTC adjudged: WHEREFORE, premises considered, [herein respondent] MICIs Notice of Appeal is hereby Denied for having filed out of time making the Decision of this Court dated February 28, 2000 as final and executory. Accordingly, the Motion for Issuance of Writ of Execution filed by [herein petitioners] is hereby Granted.

 Notify parties herein.[32]  

Respondent MICI filed a Petition for Certiorari[33] under Rule 65 of the Rules of Court before the Court of Appeals, which was docketed as CA-G.R. SP No. 67297. The Petition assailed, for having been rendered by the RTC with grave abuse of discretion amounting to lack or excess of jurisdiction, the following: (1) the Order dated 6 September 2001, denying the Notice of Appeal of respondent MICI and granting petitioners Motion for the Issuance of Writ of Execution; (2) the Decision dated 28 February 2000, holding Rhoda and respondent MICI jointly and severally liable for Georges death; and (3) the Order dated 15 June 2001, reinstating the Decision dated 28 February 2000. The Court of Appeals granted the Petition for Certiorari of respondent MICI in a Decision dated 26 June 2000, ratiocinating thus: 

Prescinding therefrom, we hold that the fifteen (15) day period to appeal must be reckoned from the time the [herein respondent] Malayan received the order dated 15 June 2001 reversing in toto the order of 24 January 2000 and reinstating in full the Decision dated 28 February 2000. Thus, [respondent] Malayan had until 12 July 2001 within which to file its notice of appeal. Therefore, when [respondent]

Malayan filed its notice of appeal on 09 July 2001, it was well within the reglementary period and should have been given due course by the public respondent court. It was therefore, an excess of jurisdiction on the part of the public respondent court when it reckoned the [respondent] Malayans period to appeal on the date it received on 14 March 2000 the formers decision dated 28 February 2000. As earlier expostulated, the said decision was completely vacated insofar as the [respondent] Malayan is concerned when the public respondent court in its order dated 24 January 2001 dismissed the case against the former. Thus, to reckon the fifteen (15) days to appeal from the day the [respondent] Malayan received the said decision on 14 March 2000, is the height of absurdity because there was nothing for the [respondent] Malayan to appeal inasmuch as the public respondent court vacated the said decision in favor of the former. The aforesaid conclusion finds support in Sta. Romana vs. Lacson (104 SCRA 93), where the court, relying on the case of Magdalena Estate, Inc. vs. Caluag, 11 SCRA 334, held that where the court of origin made a thoroughly (sic) restudy of the original judgment and rendered the amended and clarified judgment only after considering all the factual and legal issues, the amended and clarified decision was an entirely new decision which superseded (sic). For all intents and purposes, the court concluded the trial court rendered a new judgment from which the time to appeal must be reckoned.

 In the instant case, what is involved is not merely a substantial amendment or modification of the original decision, but the total reversal thereof in the order dated 24 January 2000. Given the rationale in the aforecited cases, it is only logical that the period of appeal be counted from 27 June 2001, the date that [respondent] Malayan received the order dated 15 June 2001 reversing in toto the order of 24 January 2000 and reinstating the Decision dated 28 February 2000.[34] (Emphasis supplied.)  

The fallo of the Decision of the Court of Appeals reads: WHEREFORE, in consideration of the foregoing premises, the petition for certiorari is partially GRANTED. Accordingly, the public respondent courts order dated 06 September 2001 is hereby RECALLED and SET ASIDE. Public respondent court is hereby directed to approve the petitioner Malayans notice of appeal and to refrain from executing the writ of execution granted on 06 September 2001.[35]  The Court of Appeals denied petitioners Motion

for Reconsideration in a Resolution dated 29 November 2002.

 Understandably distraught, petitioners come before this Court in this Petition for Review, which raise the

following issues: 

I. 

Whether or not the respondent Court of Appeals committed grave abuse of discretion when it ruled that private respondent could file a Petition for Certiorari even though its Motion for Reconsideration was still pending resolution with the lower court. 

II. 

Whether or not the respondent Court of Appeals committed grave abuse of discretion when it ruled that the private respondent had filed its Notice of Appeal with the trial court within the reglementary period.[36]  The Court first turns its attention to the primary

issue for its resolution: whether the Notice of Appeal filed by respondent MICI before the RTC was filed out of time.

 The period for filing a Notice of Appeal is set by

Rule 41, Section 3 of the 1997 Rules of Court:

SEC. 3. Period of ordinary appeal. The appeal shall be taken within fifteen (15) days from notice of the judgment or final order appealed from. Where a record on appeal is required, the appellants shall file a notice of appeal and a record on appeal

within thirty (30) days from notice of the judgment or final order. x x x.

 The period of appeal shall be interrupted by

a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed. 

  

It is clear under the Rules that an appeal should be taken within 15 days from the notice of judgment or final order appealed from.[37] A final judgment or order is one that finally disposes of a case, leaving nothing more for the court to do with respect to it.  It is an adjudication on the merits which, considering the evidence presented at the trial, declares categorically what the rights and obligations of the parties are; or it may be an order or judgment that dismisses an action.[38]

 Propitious to petitioners is Neypes v. Court of

Appeals,[39] which the Court promulgated on 14 September 2005, and wherein it laid down the fresh period rule:

 To standardize the appeal periods provided

in the Rules and to afford litigants fair opportunity to appeal their cases, the Court deems it practical to allow a fresh period of 15 days within which to file the notice of appeal in the Regional Trial Court, counted from receipt of the order dismissing a motion for a new trial or motion for

reconsideration. Henceforth, this fresh period rule shall

also apply to Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts; Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals and Rule 45 governing appeals by certiorari to the Supreme Court. The new rule aims to regiment or make the appeal period uniform, to be counted from receipt of the order denying the motion for new trial, motion for reconsideration (whether full or partial) or any final order or resolution. (Emphases ours.)

  

The fresh period of 15 days becomes significant when a party opts to file a motion for new trial or motion for reconsideration. In this manner, the trial court which rendered the assailed decision is given another opportunity to review the case and, in the process, minimize and/or rectify any error of judgment.[40] With the advent of the fresh period rule, parties who availed themselves of the remedy of motion for reconsideration are now allowed to file a notice of appeal within fifteen days from the denial of that motion.[41]

 The Court has accentuated that the fresh period

rule is not inconsistent with Rule 41, Section 3 of the Rules of Court which states that the appeal shall be

taken within fifteen (15) days from notice of judgment or final order appealed from. The use of the disjunctive word or signifies disassociation and independence of one thing from another.  It should, as a rule, be construed in the sense which it ordinarily implies.[42] Hence, the use of or in the above provision supposes that the notice of appeal may be filed within 15 days from the notice of judgment or within 15 days from notice of the final order in the case.

 Applying the fresh period rule, the Court agrees

with the Court of Appeals and holds that respondent MICI seasonably filed its Notice of Appeal with the RTC on 9 July 2001, just 12 days from 27 June 2001, when it received the denial of its Motion for Reconsideration of the 15 June 2001 Resolution reinstating the 28 February 2000 Decision of the RTC.

 The fresh period rule may be applied to the case

of respondent MICI, although the events which transpired concerning its Notice of Appeal took place in June and July 2001, inasmuch as rules of procedure may be given retroactive effect on actions pending and undetermined at the time of their passage. The Court notes that Neypes was promulgated on 14 September 2005, while the instant Petition was still pending before this Court.

 Reference may be made to Republic v. Court of

Appeals,[43] involving the retroactive application of A.M. No. 00-2-03-SC which provided that the 60-day period within which to file a petition for certiorari shall be reckoned from receipt of the order denying the motion for reconsideration. In said case, the Court declared that rules of procedure may be given retroactive effect to actions pending and undetermined at the time of their passage and this will not violate any right of a person who may feel that he is adversely affected, inasmuch as there is no vested rights in rules of procedure.

 Hence, the fresh period rule laid down in Neypes

was applied by the Court in resolving the subsequent cases of Sumaway v. Urban Bank, Inc.,[44] Elbia v. Ceniza,[45] First Aqua Sugar Traders, Inc. v. Bank of the Philippine Islands,[46] even though the antecedent facts giving rise to said cases transpired before the promulgation of Neypes.

 In De los Santos v. Vda de Mangubat,[47]

particularly, the Court applied the fresh period rule, elucidating that procedural law refers to the adjective law which prescribes rules and forms of procedure in order that courts may be able to administer justice. Procedural laws do not come within the legal conception of a retroactive law, or the general rule against the retroactive operation of statutes. The fresh period rule is irrefragably procedural, prescribing the manner in which

the appropriate period for appeal is to be computed or determined and, therefore, can be made applicable to actions pending upon its effectivity without danger of violating anyone elses rights.

 Since the Court affirms the ruling of the Court of Appeals that respondent MICI filed its Notice of Appeal with the RTC within the reglementary period, the appropriate action, under ordinary circumstances, would be for the Court to remand the case to the RTC so that the RTC could approve the Notice of Appeal of respondent MICI and respondent MICI could already file its appeal with the Court of Appeals. However, considering that the case at bar has been pending for almost sixteen years,[48] and the records of the same are already before this Court, remand is no longer necessary. Jurisprudence dictates that remand of a case to a lower court does not follow if, in the interest of justice, the Supreme Court itself can resolve the dispute based on the records before it. As a rule, remand is avoided in the following instances: (a) where the ends of justice would not be subserved by a remand; or (b) where public interest demands an early disposition of the case; or (c) where the trial court has already received all the evidence presented by both parties, and the Supreme Court is in a position, based upon said evidence, to

decide the case on its merits.[49] In Lao v. People,[50] the Supreme Court, in consideration of the years that it had taken for the controversy therein to reach it, concluded that remand of the case to a lower court was no longer the more expeditious and practical route to follow, and it then decided the said case based on the evidentiary record before it. The consistent stand of the Court has always been that a case should be decided in its totality, resolving all interlocking issues in order to render justice to all concerned and to end the litigation once and for all. Verily, courts should always strive to settle the entire controversy in a single proceeding, leaving no root or branch to bear the seed of future litigation.[51] Where the public interest so demands, the court will broaden its inquiry into a case and decide the same on the merits rather than merely resolve the procedural question raised.[52] Such rule obtains in this case. 

The Court is convinced that the non-remanding of the case at bar is absolutely justified. Petitioners have already suffered from the tragic loss of a loved one, and must not be made to endure more pain and uncertainty brought about by the continued pendency of their claims against those liable. The case has been dragging on for almost 16 years now without the petitioners having been fully compensated for their loss. The Court cannot countenance such a glaring indifference to petitioners

cry for justice. To be sure, they deserve nothing less than full compensation to give effect to their substantive rights.[53]

 The complete records of the present case have

been elevated to this Court, and the pleadings and evidence therein could fully support its factual adjudication. Indeed, after painstakingly going over the records, the Court finds that the material and decisive facts are beyond dispute: George was killed when he was hit by the truck driven by Willie, an employee of Rhoda; and the truck is insured with respondent MICI. The only issue left for the Court to resolve is the extent of the liability of Rhoda and respondent MICI for Georges death and the appropriate amount of the damages to be awarded to petitioners.

 The Court now turns to the issue of who is liable

for damages for the death of George. Respondent MICI does not deny that it is the insurer of the truck. Nevertheless, it asserts that its liability is limited, and it should not be held solidarily liable with Rhoda for all the damages awarded to petitioners. 

A solidary or joint and several obligation is one in which each debtor is liable for the entire obligation, and each creditor is entitled to demand the whole obligation. In a joint obligation, each obligor answers only for a

part of the whole liability and to each obligee belongs only a part of the correlative rights. Well-entrenched is the rule that solidary obligation cannot lightly be inferred. There is solidary liability only when the obligation expressly so states, when the law so provides or when the nature of the obligation so requires.[54] It is settled that where the insurance contract provides for indemnity against liability to third persons, the liability of the insurer is direct and such third persons can directly sue the insurer. The direct liability of the insurer under indemnity contracts against third party liability does not mean, however, that the insurer can be held solidarily liable with the insured and/or the other parties found at fault, since they are being held liable under different obligations. The liability of the insured carrier or vehicle owner is based on tort, in accordance with the provisions of the Civil Code;[55] while that of the insurer arises from contract, particularly, the insurance policy. The third-party liability of the insurer is only up to the extent of the insurance policy and that required by law; and it cannot be held solidarily liable for anything beyond that amount.[56] Any award beyond the insurance coverage would already be the sole liability of the insured and/or the other parties at fault.[57] In Vda. de Maglana v. Consolacion,[58] it was ruled that an insurer in an indemnity contract for third-party

liability is directly liable to the injured party up to the extent specified in the agreement, but it cannot be held solidarily liable beyond that amount. According to respondent MICI, its liability as insurer of Rhodas truck is limited. Following Vda. de Maglana, petitioners would have had the option either (1) to claim the amount awarded to them from respondent MICI, up to the extent of the insurance coverage, and the balance from Rhoda; or (2) to enforce the entire judgment against Rhoda, subject to reimbursement from respondent MICI to the extent of the insurance coverage. The Court, though, is precluded from applying its ruling in Vda. de Maglana by the difference in one vital detail between the said case and the one at bar. The insurer was able to sufficiently establish its limited liability in Vda. de Maglana, while the same cannot be said for respondent MICI herein. The Court highlights that in this case, the insurance policy between Rhoda and respondent MICI, covering the truck involved in the accident which killed George, was never presented. There is no means, therefore, for this Court to ascertain the supposed limited liability of respondent MICI under said policy. Without the presentation of the insurance policy, the Court cannot determine the existence of any limitation on the liability of respondent MICI under said policy, and the extent or amount of such limitation. 

It should be remembered that respondent MICI readily admits that it is the insurer of the truck that hit and killed George, except that it insists that its liability under the insurance policy is limited. As the party asserting its limited liability, respondent MICI then has the burden of evidence to establish its claim. In civil cases, the party that alleges a fact has the burden of proving it. Burden of proof is the duty of a party to present evidence on the facts in issue necessary to prove its claim or defense by the amount of evidence required by law.[59] Regrettably, respondent MICI failed to discharge this burden.[60] The Court cannot rely on mere allegations of limited liability sans proof. 

The failure of respondent MICI to present the insurance policy which, understandably, is not in petitioners possession, but in the custody and absolute control of respondent MICI as the insurer and/or Rhoda as the insured gives rise to the presumption that its presentation is prejudicial to the cause of respondent MICI.[61] When the evidence tends to prove a material fact which imposes a liability on a party, and he has it in his power to produce evidence which, from its very nature, must overthrow the case made against him if it is not founded on fact, and he refuses to produce such evidence, the presumption arises that the evidence, if produced, would operate to his prejudice and support the case of his adversary.[62]

 

Respondent MICI had all the opportunity to prove before the RTC that its liability under the insurance policy it issued to Rhoda, was limited; yet, respondent MICI failed to do so. The failure of respondent MICI to rebut that which would have naturally invited an immediate, pervasive, and stiff opposition from it created an adverse inference that either the controverting evidence to be presented by respondent MICI would only prejudice its case, or that the uncontroverted evidence of petitioners indeed speaks of the truth. And such adverse inference, recognized and adhered to by courts in judging the weight of evidence in all kinds of proceedings, surely is not without basis its rationale and effect rest on sound, logical and practical considerations, viz:

 The presumption that a man will do that which tends to his obvious advantage, if he possesses the means, supplies a most important test for judging of the comparative weight of evidence x x x If, on the supposition that a charge or claim is unfounded, the party against whom it is made has evidence within his reach by which he may repel that which is offered to his prejudice, his omission to do so supplies a strong presumption that the charge or claim is well founded; it would be contrary to every principle of reason, and to all experience of human conduct, to form any other conclusion. (Starkie on Evidence, p. 846, Moore on Facts, Vol. I, p. 544) x x x x 

The ordinary rule is that one who has knowledge peculiarly within his own control, and refuses to divulge it, cannot complain if the court puts the most unfavorable construction upon his silence, and infers that a disclosure would have shown the fact to be as claimed by the opposing party." (Societe, etc., v. Allen, 90 Fed. Rep. 815, 817, 33 C.C.A. 282, per Taft, C.J., Moore on Facts, Vol. I, p. 561).[63]  

The inference still holds even if it be assumed, for argument's sake, that the solidary liability of respondent MICI with Rhoda is improbable, for it has likewise been said that: 

Weak evidence becomes strong by the neglect of the party against whom it is put in, in not showing by means within the easy control of that party that the conclusion drawn from such evidence is untrue. (Pittsburgh, etc., R. Co. v. Callaghan, 50 III. App. 676, 681, Moore on Facts, Vol. I, p. 572).[64]  Given the admission of respondent MICI that it is

the insurer of the truck involved in the accident that killed George, and in the utter absence of proof to establish both the existence and the extent/amount of the alleged limited liability of respondent MICI as insurer, the Court could only conclude that respondent MICI had agreed to fully indemnify third-party liabilities. Consequently, there is no more difference in the

amounts of damages which petitioners can recover from Rhoda or respondent MICI; petitioners can recover the said amounts in full from either of them, thus, making their liabilities solidary or joint and several.

The Court now comes to the issue of the amounts of the damages awarded. In its Decision dated 22 February 2000, the RTC awarded petitioners moral and actual damages, as well as funeral expenses and attorneys fees. Subsequently, in its Order dated 24 January 2001, the RTC reduced the amount of actual damages from P805,984.00 to P102,106.00, but additionally awarded death indemnity in the amount of P50,000.00. Its award of moral damages and funeral expenses as well as attorneys fees remained constant in its 28 February 2000 decision and was carried over to its 24 January 2001 Order. The Court shall now proceed to scrutinize said award of damages. As regards the award of actual damages, Article 2199 of the Civil Code provides that [e]xcept as provided by law or by stipulation one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved x x x. The RTC awarded P36,000.00 for burial expenses. The

award of P36,000.00 for burial expenses is duly supported by receipts evidencing that petitioners did incur this expense. The petitioners held a wake for two days at their residence and another two days at the Loyola Memorial Park.[65] The amount covered the expenses by petitioners for the wake, funeral and burial of George.[66] As to compensation for loss of earning capacity, the RTC initially awarded P805,984.00 in its 28 February 2000 Decision, which it later reduced to P102,106.00 on 24 January 2001. Article 2206 of the Civil Code provides that in addition to the indemnity for death caused by a crime or quasi-delict, the defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter, x x x. Compensation of this nature is awarded not for loss of earnings but for loss of capacity to earn money. Hence, it is proper that compensation for loss of earning capacity should be awarded to the petitioners in accordance with the formula established in decided cases for computing net earning capacity, to wit: 

The formula for the computation of unearned income is: Net Earning Capacity = life expectancy x (gross annual income -reasonable and necessary living

expenses). Life expectancy is determined in accordance with the formula: 2 / 3 x [80 - age of deceased at the time of death][67]  

Jurisprudence provides that the first factor, i.e., life expectancy, shall be computed by applying the formula (2/3 x [80 - age at death]) adopted in the American Expectancy Table of Mortality or the Actuarial of Combined Experience Table of Mortality. The second factor is computed by multiplying the life expectancy by the net earnings of the deceased, i.e., the total earnings less expenses necessary in the creation of such earnings or income and less living and other incidental expenses. The loss is not equivalent to the entire earnings of the deceased, but only such portion that he would have used to support his dependents or heirs. Hence, the Court deducts from his gross earnings the necessary expenses supposed to be used by the deceased for his own needs. The Court explained in Villa Rey Transit v. Court of Appeals[68]: 

[The award of damages for loss of earning capacity is] concerned with the determination of the losses or damages sustained by the private

respondents, as dependents and intestate heirs of the deceased, and that said damages consist, not of the full amount of his earnings, but of the support they received or would have received from him had he not died in consequence of the negligence of petitioner's agent. In fixing the amount of that support, we must reckon with the necessary expenses of his own living, which should be deducted from his earnings. Thus, it has been consistently held that earning capacity, as an element of damages to one's estate for his death by wrongful act is necessarily his net earning capacity or his capacity to acquire money, less necessary expense for his own living. Stated otherwise, the amount recoverable is not the loss of the entire earning, but rather the loss of that portion of the earnings which the beneficiary would have received. In other words, only net earnings, and not gross earnings are to be considered that is, the total of the earnings less expenses necessary in the creation of such earnings or income and less living and other incidental expenses.  

Applying the aforestated jurisprudential guidelines in

the computation of the amount of award for damages set out in Villa Rey, the Court computes the award for the loss of Georges earning capacity as follows:

 Life expectancy = 2/3 x [80 - age of deceased at the time of death]2/3 x [80 56]2/3 x [24]  FORMULA NET EARNING CAPACITY (NEC)

 If: Age at time of death of George Poe = 58[69]Monthly Income at time of death = P6,946[70]Gross Annual Income (GAI) = [(6,946) (12)] = P83,352Reasonable/Necessary Living Expenses (R/NLE) = 50%[71] of GAI = P41,676 NEC = [2/3 (80-58)] [83,352-41,676]= [2/3 (22)] [41,676]= [14.67] [41,676]= P611,386.92  

Therefore, Georges lost net earning capacity is equivalent to P611,386.92

 The RTC awarded moral damages[72] in the amount of P100,000.00. With respect to moral damages, the same are awarded under the following circumstances: 

The award of moral damages is aimed at a restoration, within the limits of the possible, of the spiritual status quo ante. Moral damages are designed to compensate and alleviate in some way the physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury unjustly caused a person. Although incapable of pecuniary computation, they must be proportionate to the suffering inflicted. The amount of the award bears no relation whatsoever with the wealth or means of the offender.  In the instant case, petitioners testimonies reveal

the intense suffering which they continue to experience as a result of Georges death.[73] It is not difficult to comprehend that the sudden and unexpected loss of a husband and father would cause mental anguish and serious anxiety in the wife and children he left behind. Moral damages in the amount of P100,000.00 are proper for Georges death.[74] The RTC also awarded P50,000.00 as death indemnity which the Court shall not disturb. The award of P50,000.00 as death indemnity is in accordance with current rulings of the Court.[75] Finally, the RTC awarded attorneys fees to petitioners. Petitioners are entitled to attorneys fees. Under Article 2008 of the Civil Code, attorneys fees may be granted

when a party is compelled to litigate or incur expenses to protect his interest by reason of an unjustified act of the other party.[76] In Metro Manila Transit Corporation v. Court of Appeals,[77] the Court held that an award of P50,000.00 as attorneys fees was reasonable. Hence, petitioners are entitled to attorneys fees in that amount.[78]

 WHEREFORE, premises considered, the instant Petition is PARTIALLY GRANTED. While the Court AFFIRMS the Decision, dated 26 June 2002, and Resolution, dated 29 November 2002, of the Court of Appeals in CA-G.R. SP No. 67297, granting the Petition for Certiorari of respondent Malayan Insurance Company, Inc., the Court, nonetheless, RESOLVES, in consideration of the speedy administration of justice, and the peculiar circumstances of the case, to give DUE COURSE to the present Petition and decide the same on its merits. Rhoda Santos and respondent Malayan Insurance Company, Inc. are hereby ordered to pay jointly and severally the petitioners Heirs of George Y. Poe the following: 

(1) Funeral expenses P36,000.00;(2) Actual damages for loss of earning capacity

P611,386.92;(3) Moral damages amounting to P100,000.00;

(4) Death indemnity P50,000.00; and(5) Attorneys fees P50,000.00 plus P1,500.00 per

court appearance. 

No costs.   SO ORDERED.   

MINITA V. CHICO-NAZARIOAssociate Justice

   WE CONCUR:   

CONSUELO YNARES-SANTIAGOAssociate Justice

Chairperson   

CONCHIT

A CARPIO MORALES ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice   

DIOSDADO M. PERALTAAssociate Justice

   

ATTESTATION 

I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. 

  CONSUELO YNARES-SANTIAGOAssociate JusticeChairperson, Third Division

      

CERTIFICATION 

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.   

REYNATO S. PUNO

Chief Justice

epublic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. 190529               March 22, 2011

PHILIPPINE GUARDIANS BROTHERHOOD, INC., represented by its Secretary-General GEORGE "FGBF GEORGE" DULDULAO, Petitioner, vs.COMMISSION ON ELECTIONS, Respondent.

R E S O L U T I O N

BRION, J.:

We resolve in this Resolution all the pending incidents in this case, specifically:

(a) the contempt charge1 against the respondent Commission on Elections (Comelec) for its alleged disobedience to this Court’s Status Quo Order2 dated February 2, 2010; and

(b) the issue of whether the petitioner, Philippine Guardians Brotherhood, Inc. (PGBI), should be declared to have participated in the party-list elections of May 10, 2010, in light of the Comelec’s failure to obey our Status Quo Order and our subsequent Resolution3

granting PGBI’s petition to annul its delisting from the roster of accredited party-list groups or organizations.4

FACTUAL ANTECEDENTS

These incidents arose from our Status Quo Order directing the Comelec to restore and maintain the PGBI to its situation prior to the issuance of Comelec Resolution No. 8679, pending the resolution of the petition for certiorari that PGBI filed to challenge this Comelec Resolution. Our Status Quo Order, in short, directly ordered the Comelec to include PGBI in the list of candidates under the party-list system in the May 10, 2010 elections pending the final determination of PGBI’s qualification to be voted upon as a party-list organization.

We issued the Status Quo Order on February 2, 2010. It was served on the Comelec on the same date,5 i.e., within the period that the Comelec itself gave for the correction of any error or omission in its published official list of party-list participants in the May 10, 2010 elections. The Comelec itself declared:

On January 30, 2010 at 3:00 o’clock (sic) in the afternoon, pursuant to Comelec Minute Resolution No. 10-0042 dated January 19, 2010, the Information Technology Department of Comelec published a list of candidates with the instruction that "(s)hould there be any misspelling, omission or other errors, the concerned candidate must call the Law Department’s attention within five (5) days from this publication for the purpose of correction. Thereafter, Comelec shall be relieved from liability"6 and the final list shall then be prepared for printing.7

The Comelec responded the next day (February 3, 2010) to our Status Quo Order by asking for its reconsideration and/or recall, based on the following grounds/arguments:

1) There will be insurmountable and tremendous operational constraints and costs implications in complying with the status quo order.

2) To add the petitioner’s party/acronym in the database of the List of Candidates for sectoral party/organization or coalition participating in the party-list system of representation will have a critical impact on the already tight and overstretched election timelines of the Commission. Copy of the Revised Automation Implementation Calendar is hereto attached as Annex "1".

3) Printing of the ballots is an intricate and complicated process. It is not a simple process of encoding data in a computer and printing the ballots using a printer attached to the computer.

4) Prior to the printing of the ballots, several technical and mechanical preparatory activities have to be done which include among other things:

a. Generation and back-up of database containing the candidates[’] information;

b. Configuration of Precinct Count Optical Scan (PCOS) machines and Consolidation and Canvassing System (CCS);

c. Creation and design of one thousand six hundred seventy-four (1,674) ballot templates;

d. Production of the ballot templates;

e. Verification of each and every ballot template to ensure that it contains the accurate names of candidates for the national positions and acronyms of sectoral party/organization or coalition participating in the party-list system of representation and their corresponding assignments to the correct districts, provinces, municipalities/cities, and clustered precincts. Since the ballots are precinct-specific to ensure the security of the voting and counting, this means verification of seventy six thousand three hundred forty (76,340) variations of the one thousand six hundred seventy-four (1,674) ballot templates; and

f. Placing several security markings in the ballots.

5) In fact, the installation of the Election Management System, which is used to generate the PCOS machines configuration and ballot templates production have already been in place as of January 25, 2010.

6) To comply with the status quo order will not only affect the printing of the ballots but also have serious implications on other activities of the Commission, such as:

a. The setting of configuration of the PCOS and CCS machines;

b. Testing of PCOS machines in their actual configuration with the ballots;

c. Deployment of PCOS and CCS machines and transmission equipments;

d. Checking/testing, demos, and sealing of the PCOS and CCS machines; and

e. Shipment of the ballots to all parts of the country.

7) Due to several re-scheduling of the timelines of the Commission, Smartmatic-TIM cautioned that it is extremely risky to change the database containing the candidates’ information at this point in time. Any change in the database and other preparatory activities would mean:

a. Twelve thousand (12,000) PCOS might not be configured and dispatched to the field on time; and

b. Four million eight hundred thousand (4,800,000) ballots might not be printed before the deadline and shipped out on time.

Even if the Commission will resort to contingency measures to configure and ship out the twelve thousand (12,000) PCOS machines on time, the printing of the ballots cannot be completed before May 10, 2010. This means that four million eight hundred thousand (4,800,000) voters might not be able to vote due to lack of ballots, thus disenfranchising them.

x x x           x x x          x x x

10) Hence, the Commission fervently requests the understanding and forbearance of the Honorable Court which is the bastion of our justice system, protector of the democratic processes and our last resort in ensuring a clean, peaceful, orderly and credible May 10, 2010 elections, to take a second look on the status quo order issued on February 2, 2010.8

In its Comment to Comelec’s Motion for Reconsideration with Manifestation,9 PGBI essentially alleged that the Comelec posited seemingly misleading and innocuous reasons in seeking reconsideration. Among other arguments, it claimed that the Comelec had been less than candid in its submissions: first, compliance with the Status Quo Order at that point would not disrupt the timetable or entail additional and costly expenditures given that the Comelec had yet to terminate all related activities and preparations for the May 10, 2010 elections;10 second, the Comelec had yet to promulgate, on February 11, 2010, its decisions on several pending disqualification cases and recently accredited six other party-list organizations to add to the more than 154 previously accredited sectoral parties and/or organizations. PGBI also manifested that the ballot template that the Comelec published in its website on February 8, 2010 did not include the name or acronym of PGBI, in contravention of the Status Quo Order; and third, the Comelec’s blatant disregard of the Status Quo Order reeked of official arrogance, given this Court’s determination that it should be included in the ballot pending resolution of PGBI’s

petition for certiorari.11

In our Resolution of April 29, 2010,12 we granted PGBI’s petition and, accordingly, annulled the assailed Comelec Resolutions in SPP No. 09-004 (MP)13 which delisted PGBI from the roster of duly registered national, regional and sectoral parties, organizations or coalitions. We declared at the same time that PGBI is qualified to be voted upon as a party-list group or organization in the May 10, 2010 elections. Despite the Status Quo Order and the Resolution, however, PGBI was never included in the ballot as one of the accredited party-list groups or organizations eligible for election under the party-list system. Hence, PGBI was never voted upon as a party-list candidate in the May 10, 2010 elections.

Before the elections or on April 28, 2010, PGBI filed a Manifestation (of Continuing Objection to Comelec’s Defiance of the Order of the Honorable Supreme Court).14 It claimed that Comelec Resolution No. 8815, dated April 5, 2007, excluded the nominees of PGBI in the official list of party-list/coalitions/sectoral organizations participating in the May 10, 2010 Automated National and Local Elections. Acting on this Manifestation, we required the Comelec, via our Resolution of May 7, 2010, to explain and show cause, within a non-extendible period of ten (10) days from receipt of the Resolution, why it should not be held in CONTEMPT of COURT for its alleged defiance of our Status Quo Order.15

In its Compliance16 to the Show Cause Order (submitted on May 21, 2010), the Comelec reiterated the arguments it raised in its Extreme Urgent Motion for Reconsideration and To Lift Status Quo Order. Specifically, it reiterated that there were "insurmountable and tremendous operational constraints and cost implications in complying with the status quo order," which order (referring to the Status Quo Order) is tantamount to technical, legal, and physical impossibility for respondents to comply.17 The Comelec asked the Court to note the explanation and accept it as sufficient compliance with the Show Cause Order.

Required to comment on the Comelec’s Compliance, PGBI filed a Manifestation Cum Comment,18 asserting that a careful reading of the Compliance reveals that the Comelec simply deftly skirted and,

ultimately, never obeyed the Status Quo Order, and thus wantonly and contumaciously disregarded the same. The PGBI additionally manifested that via a letter to the Comelec on May 4, 2010, it raised the following concerns:

The preceding pronouncement [referring to the Court’s Resolution granting PGBI’s petition] may appear to be inconsequential and a pyrrhic victory in view of the error and omission to include the name of the petitioner in the ballots for the scheduled elections. How this Honorable Commission will find the means and/or alternative to comply with and/or implement the directive in said decision is a matter left to its judgment and discretion.

Be that as it may, it is the petitioner’s considered view that a definitive ruling, including the grant of its Motion for Reconsideration in SPP No. 09-004 (MP), be expressly made in order that the limitation prescribed in Section 6(8) of R.A. No. 7941, replicated in COMELEC Resolution No. 2847, promulgated on June 25, 1996, will not apply to herein petitioner for purposes of the May 2013 elections.

While the implementation of the dispositions in the said Resolution has become a physical impossibility, it is petitioner’s respectful submittal that it should not be penalized for not being able to participate in the coming May 10, 2010 party-list election. [parenthetical note at 1st paragraph supplied; underscoring in the original].

Based on its apprehension that it might end up twice in jeopardy of not being able to participate in the party-list elections of 2013 in view of Section 6(8) of Republic Act (R.A.) No. 7941, PGBI requested that the matter of its participation in the May 2013 party-list elections be given a categorical ruling.19

In its Reply,20 the Comelec asserted that a discussion on PGBI’s eligibility for the 2013 elections – i.e., whether its declared eligibility for the 2010 elections and its eventual inability to participate thereto should be considered as a failure to participate in the last two (2) elections, as defined in R.A. No. 7941 – is purely academic, and is purely an advisory opinion that this Court has no jurisdiction to grant. Judicial power, the Comelec claimed, is limited to the determination

and resolution of actual cases and controversies involving existing conflicts that are appropriate or ripe for judicial determination; it does not extend to hypothetical, conjectural or anticipatory questions. It claimed additionally that as the specialized constitutional body charged with the enforcement and administration of all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall, PGBI’s question is a matter within its competence and primary jurisdiction to decide once it becomes ripe for adjudication.

OUR RULING

After due consideration of the attendant facts and the law, we find the Comelec guilty of indirect contempt of this Court.

The Comelec Chair and Members are guilty of indirect contempt of Court

We explained in Ang Bagong Bayani-OFW Labor Party v. COMELEC21 the Court’s contempt power as follows:

The power to punish contempt is inherent in all courts, because it is essential to the preservation of order in judicial proceedings, and to the enforcement of judgments, orders and mandates of the courts; and, consequently, to the due administration of justice.

Under our Rules of Court, contempt is classified into direct and indirect. Direct contempt, which may be summary, is committed "in the presence of or so near a court as to obstruct or interrupt the proceedings before the same, including disrespect toward the court, offensive personalities toward others, or refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully required to do so."

Indirect contempt, on the other hand, is not committed in the presence of the court and can be punished only after notice and hearing. Disobedience or resistance to a lawful writ, process, order or judgment of a court or injunction granted by a court or judge constitutes indirect contempt. We quote Section 3, Rule 71 of the Rules of Court, enumerating the acts punishable as indirect contempt, as follows:

"SEC. 3. Indirect contempt to be punished after charge and hearing. — After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt:

(a) Misbehavior of an officer of a court in the performance of his official duties or in his official transactions;

(b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto;

(c) Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt under section 1 of this Rule;

(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice;

(e) Assuming to be an attorney or an officer of a court, and acting as such without authority;

(f) Failure to obey a subpoena duly served;

(g) The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him.

But nothing in this section shall be so construed as to prevent the court from issuing process to bring the respondent into court, or from holding him in custody pending such proceedings."

Based on the recited antecedent facts, it cannot be disputed that the Comelec did not comply with our Status Quo Order; it simply pleaded

insurmountable and tremendous operational constraints and costs implications as reasons for its avoidance of our Order. It essentially posited that compliance with our Status Quo Order was rendered impossible by the automation of the May 10, 2010 elections.

However, we find this explanation unacceptable, given the Comelec’s own self-imposed deadline of February 4, 2010 for the correction of errors and omissions, prior to printing, of the published list of participating party-list groups and organizations in the May 10, 2010 elections.

The Comelec deadline could only mean that the Comelec had determined that changes in the official ballot could still be made at any time prior to the deadline. In the context of the cases then pending involving the registration of party-list organizations, the deadline was a clear signal from the Comelec that the cases would have to be resolved before the deadline; otherwise, the Comelec could not be held liable for their non-inclusion.

We fully read and respected the Comelec’s signal, fully aware that we have to balance the interests the Comelec has to protect, with PGBI’s intent to be voted as a party-list organization. Thus, on February 2, 2010, we issued our Status Quo Order after a preliminary but judicious evaluation of the merits of PGBI’s motion for reconsideration, only to receive the Comelec’s response on February 3, 2010 manifesting that it could no longer change the ballots because of the nature of an automated election.

In an exercise as important as an election, the Comelec cannot make a declaration and impose a deadline, and, thereafter, expect everyone to accept its excuses when it backtracks on its announced declaration. The Comelec knew very well that there were still cases pending for judicial determination that could have been decided before the deadline was set.

Although the recent case of Liberal Party v. Commission on Elections,22 involved the registration of political parties, we found that the Comelec gravely abused its discretion in allowing the out of time registration of the NP-NPC coalition despite the mandatory deadline the Comelec itself had set. In this case, we underscored the

significance of the Comelec’s compliance with its self-imposed deadlines, particularly in the implementation of the first-ever automated elections of May 10, 2010.

To be excused, the Comelec needed more than its generalized descriptions of the process of ballot printing and the alleged problems it faced. We needed reasons on how and why the deadline was set, as well as detailed and specific reasons why PGBI could no longer be listed while other errors and omissions could still be remedied.

Unfortunately for the Comelec, we did not see that kind of justification in its Compliance before us. Like the Comelec, we expect obedience to and respect for our Orders and Resolutions, and we cannot be sidetracked based solely on supposed operational constraints caused by the automated polls. Its treatment of our Status Quo Order simply meant that even before the Comelec deadline, a definitive ruling that a party-list organization should be included in the list to be voted upon would have been for naught as the Comelec would have anyway pleaded automation constraints. Even if its excuse had been meritorious, the Comelec effectively would have been guilty of misrepresentation on an election matter and in dealing with this Court.

Although we have recognized the validity of the automation of the May 10, 2010 elections in Roque, Jr. v. Comelec,23 we stress that automation is not the end-all and be-all of an electoral process. An equally important aspect of a democratic electoral exercise is the right of free choice of the electorates on who shall govern them; the party-list system, in the words of Ang Bagong Bayani–OFW Labor Party v. Comelec,24 affords them this choice, as it gives the marginalized and underrepresented sectors the opportunity to participate in governance. Wittingly or unwittingly, the Comelec took this freedom of choice away and effectively disenfranchised the members of the sector that PGBI sought to represent when it did not include PGBI in the list of qualified parties vying for a seat under the party-list system of representation. This is a consideration no less weighty than the automation of the election and cannot be simply disregarded on mere generalized allegations of automation difficulties.

The Appropriate Penalty

Section 7, Rule 71 of the Rules of Court provides the penalty for indirect contempt. Section 7 of Rule 71 reads:

SEC. 7. Punishment for indirect contempt. - If the respondent is adjudged guilty of indirect contempt committed against a Regional Trial Court or a court of equivalent or higher rank, he may be punished by a fine not exceeding thirty thousand pesos or imprisonment not exceeding six (6) months, or both. x x x

In the past, we have found the Chairman and members of the Comelec guilty of indirect contempt in Ang Bagong Bayani-OFW Labor Party v. COMELEC.25 In that case, we held that the Chairman and members of the COMELEC guilty of contempt and required them to pay a fine in the amount of P20, 000.00 for "degrading the dignity of th[e] Court;26 for brazen disobedience to its lawful directives, in particular its Temporary Restraining Order dated May 9, 2001; and for delaying the ultimate resolution of the many incidents of the case, to the prejudice of the litigants and of the country." We also warned the Comelec that a repetition of the same or similar acts shall be dealt with more severely in the future.27

Evidently, the Rule cited above does not provide that reprimand may be imposed on one found guilty of indirect contempt. However, we have in recent cases imposed a penalty less than what is provided under the Rules if the circumstances merit such.28

In Alcantara v. Ponce,29 the Court, instead of citing the respondent Atty. Escareal-Sandejas for contempt, chose to reprimand her (and warned her that her commission of the same act would be more drastically dealt with) noting her apparent inexperience in practice of the profession, especially in appellate proceedings before the Court. Similarly, in Racines v. Judge Morallos,30 the Court, after finding Jaime Racines guilty of indirect contempt, merely reprimanded him because "he is not learned in the intricacies of the law."

In the present case, special circumstances exist which call for our leniency and compel us to impose the penalty of severe reprimand instead of of imprisonment and/or fine under Section 7, of Rule 71 of the Rules of Court as we have ruled in Ang Bagong Bayani-OFW

Labor Party. We emphasize that although automation is a special circumstance that should be considered in the present incidental matter, however, its effect on the Comelec’s non-compliance is merely to mitigate, not to totally exculpate, the Comelec from liability for its failure to comply with our Status Quo Order. In other words, even if we grant that automation might have posed some difficulty in including a new party in the party-list listing, the Comelec still failed to prove to our satisfaction that the PGBI’s inclusion was technically impossible and could not have been done even if the Comelec had wanted to. Thus, at the most, we can give the Comelec the benefit of the doubt to the extent of recognizing its excuse as a mitigating factor.

Therefore, instead of imposing the penalty of imprisonment and/or fine provided under Section 7, Rule 71 of the Revised Rules of Court, we deem it proper to impose upon the Comelec, particularly on its Chair and Members the penalty of severe reprimand, with a stern warning that a repetition of the same offense shall be dealt with more severely.

At this juncture, we take judicial notice of Comelec Chairperson Jose A.R. Melo’s resignation effective January 15, 201131 and Commissioners Nicodemo T. Ferrer and Gregorio Y. Larrazabal’s retirement on February 2, 2011.32 We hasten to clarify that their departure from government service, however, do not render moot and academic their liability for indirect contempt, since "contempt of court applies to all persons, whether in or out of government." Thus, in Curata v. Philippine Ports Authority,33 we held:

Contempt of court applies to all persons, whether in or out of government. Thus, it covers government officials or employees who retired during the pendency of the petition for contempt. Otherwise, a civil servant may strategize to avail himself of an early retirement to escape the sanctions from a contempt citation, if he perceives that he would be made responsible for a contumacious act. The higher interest of effective and efficient administration of justice dictates that a petition for contempt must proceed to its final conclusion despite the retirement of the government official or employee, more so if it involves a former member of the bench.

PGBI’s Participation in the May 10, 2010 Party-List Elections

We partly agree with the Comelec that we cannot recognize PGBI to be a party-list organization fully qualified to run under the party-list system in the coming 2013 party-list elections. The question of full and total qualification is not ripe for judicial determination as this is not before us for resolution. Participation in a previous election and the level of votes in favor of a participating organization are not the only qualification issues that can arise in a party-list election, and we cannot assume that PGBI shall meet all other legal standards to qualify as a party-list organization in the 2013 elections.34

But separate from the question of PGBI’s overall qualification is the narrower question of its participation in the May 10, 2010 elections – an issue that is subsumed by the issues in the main certiorari case. As shown above, PGBI intended to participate in the May 10, 2010 elections but it was not able to do so because the Comelec did not – contrary to our express directive – include it in the list of party-list organizations to be voted upon in the May 10, 2010 elections. As it was the Comelec itself which prevented PGBI from participating in the May 10, 2010 party-list elections when it deleted PGBI, with grave abuse of discretion, from the list of accredited party-list groups or organizations and, thereafter, refused to return it to the list despite our directive, PGBI should, at the very least, be deemed to have participated in the May 10, 2010 elections, and cannot be disqualified for non-participation or for failure to garner the votes required under Section 6(8) of R.A. No. 7941. To conclude otherwise is to effectively recognize the ineffectiveness of our Status Quo Order, of our April 29, 2010 Decision, and of this Court.

As a final note, the subject of the Court’s action is the COMELEC’s disobedience to our Status Quo Order of February 2, 2010 in the case in caption. The composition of the COMELEC has since then changed. We therefore clarify that this Resolution affects and reflects on the COMELEC and its membership as then constituted as they were the ones directly responsible for the disobedience.

WHEREFORE, premises considered, the Comelec Chair35 and Members36 are hereby found GUILTY of CONTEMPT of the Supreme Court for their disobedience to our lawful directive, specifically the

Status Quo Order dated February 2, 2010. They are accordingly SEVERELY REPRIMANDED for this disobedience. They are further WARNED that a repetition of the same or similar acts shall be dealt with more severely in the future.

The Philippine Guardians Brotherhood, Inc. shall be deemed not to have transgressed the participation and level of votes requirements under Section 6(8) of Republic Act No. 7941 with respect to the May 10, 2010 elections.

SO ORDERED.

ARTURO D. BRIONAssociate Justice

WE CONCUR:

RENATO C. CORONAChief Justice

ANTONIO T. CARPIOAssociate Justice

CONCHITA CARPIO MORALESAssociate Justice

PRESBITERO J. VELASCO, JR.Associate Justice

ANTONIO EDUARDO B. NACHURAAssociate Justice

TERESITA J. LEONARDO-DE CASTROAssociate Justice

DIOSDADO M. PERALTAAssociate Justice

LUCAS P. BERSAMINAssociate Justice

MARIANO C. DEL CASTILLOAssociate Justice

ROBERTO A. ABADAssociate Justice

MARTIN S. VILLARAMA, JR.Associate Justice

JOSE PORTUGAL PEREZAssociate Justice

(ON LEAVE)JOSE CATRAL MENDOZA

Associate Justice

MARIA LOURDES P.A. SERENOAssociate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

RENATO C. CORONAChief Justice

Footnotes

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. 189793               April 7, 2010

SENATOR BENIGNO SIMEON C. AQUINO III and MAYOR JESSE ROBREDO, Petitioners, vs.COMMISSION ON ELECTIONS represented by its Chairman JOSE A.R. MELO and its Commissioners, RENE V. SARMIENTO, NICODEMO T. FERRER, LUCENITO N. TAGLE, ARMANDO VELASCO, ELIAS R. YUSOPH AND GREGORIO LARRAZABAL, Respondents.

D E C I S I O N

PEREZ, J.:

This case comes before this Court by way of a Petition for Certiorari and Prohibition under Rule 65 of the Rules of Court. In this original action, petitioners Senator Benigno Simeon C. Aquino III and Mayor Jesse Robredo, as public officers, taxpayers and citizens, seek the nullification as unconstitutional of Republic Act No. 9716, entitled "An Act Reapportioning the Composition of the First (1st) and Second (2nd) Legislative Districts in the Province of Camarines Sur and Thereby Creating a New Legislative District From Such Reapportionment." Petitioners consequently pray that the respondent Commission on Elections be restrained from making any issuances and from taking any steps relative to the implementation of Republic

Act No. 9716.

Republic Act No. 9716 originated from House Bill No. 4264, and was signed into law by President Gloria Macapagal Arroyo on 12 October 2009. It took effect on 31 October 2009, or fifteen (15) days following its publication in the Manila Standard, a newspaper of general circulation.1 In substance, the said law created an additional legislative district for the Province of Camarines Sur by reconfiguring the existing first and second legislative districts of the province.

Prior to Republic Act No. 9716, the Province of Camarines Sur was estimated to have a population of 1,693,821,2 distributed among four (4) legislative districts in this wise:

District Municipalities/Cities Population

1st District

Del GallegoRagayLupiSipocotCabusao

LibmananMinalabacPamplonaPasacaoSan Fernando

417,304

2nd District

GainzaMilaorNagaPiliOcampo

CanamanCamaliganMagaraoBombonCalabanga

474,899

3rd District

CaramoanGarchitorenaGoaLagonoyPresentacion

SangaySan JoseTigaonTinambaSiruma

372,548

4th District

IrigaBaaoBalatan

BuhiBulaNabua

429,070

Bato

Following the enactment of Republic Act No. 9716, the first and second districts of Camarines Sur were reconfigured in order to create an additional legislative district for the province. Hence, the first district municipalities of Libmanan, Minalabac, Pamplona, Pasacao, and San Fernando were combined with the second district municipalities of Milaor and Gainza to form a new second legislative district. The following table3 illustrates the reapportionment made by Republic Act No. 9716:

District Municipalities/Cities Population

1st District Del GallegoRagayLupiSipocotCabusao

176,383

2nd District LibmananMinalabacPamplonaPasacao

San FernandoGainzaMilaor

276,777

3rd District (formerly 2nd District)

NagaPiliOcampoCanaman

CamaliganMagaraoBombonCalabanga

439,043

4th District (formerly 3rd District)

CaramoanGarchitorenaGoaLagonoyPresentacion

SangaySan JoseTigaonTinambaSiruma

372,548

5th District (formerly 4th District)

IrigaBaao

BuhiBula

429,070

BalatanBato

Nabua

Republic Act No. 9716 is a well-milled legislation. The factual recitals by both parties of the origins of the bill that became the law show that, from the filing of House Bill No. 4264 until its approval by the Senate on a vote of thirteen (13) in favor and two (2) against, the process progressed step by step, marked by public hearings on the sentiments and position of the local officials of Camarines Sur on the creation of a new congressional district, as well as argumentation and debate on the issue, now before us, concerning the stand of the oppositors of the bill that a population of at least 250,000 is required by the Constitution for such new district.4

Petitioner Aquino III was one of two senators who voted against the approval of the Bill by the Senate. His co-petitioner, Robredo, is the Mayor of Naga City, which was a part of the former second district from which the municipalities of Gainza and Milaor were taken for inclusion in the new second district. No other local executive joined the two; neither did the representatives of the former third and fourth districts of the province.

Petitioners contend that the reapportionment introduced by Republic Act No. 9716, runs afoul of the explicit constitutional standard that requires a minimum population of two hundred fifty thousand (250,000) for the creation of a legislative district.5 The petitioners claim that the reconfiguration by Republic Act No. 9716 of the first and second districts of Camarines Sur is unconstitutional, because the proposed first district will end up with a population of less than 250,000 or only 176,383.

Petitioners rely on Section 5(3), Article VI of the 1987 Constitution as basis for the cited 250,000 minimum population standard.6 The provision reads:

Article VI

Section 5. (1) x x x x

(2) x x x x

(3) Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative.

(4) x x x x (Emphasis supplied).

The petitioners posit that the 250,000 figure appearing in the above-cited provision is the minimum population requirement for the creation of a legislative district.7 The petitioners theorize that, save in the case of a newly created province, each legislative district created by Congress must be supported by a minimum population of at least 250,000 in order to be valid.8 Under this view, existing legislative districts may be reapportioned and severed to form new districts, provided each resulting district will represent a population of at least 250,000. On the other hand, if the reapportionment would result in the creation of a legislative seat representing a populace of less than 250,000 inhabitants, the reapportionment must be stricken down as invalid for non-compliance with the minimum population requirement.

In support of their theory, the petitioners point to what they claim is the intent of the framers of the 1987 Constitution to adopt a population minimum of 250,000 in the creation of additional legislative seats.9 The petitioners argue that when the Constitutional Commission fixed the original number of district seats in the House of Representatives to two hundred (200), they took into account the projected national population of fifty five million (55,000,000) for the year 1986.10 According to the petitioners, 55 million people represented by 200 district representatives translates to roughly 250,000 people for every one (1) representative.11 Thus, the 250,000 population requirement found in Section 5(3), Article VI of the 1987 Constitution is actually based on the population constant used by the Constitutional Commission in distributing the initial 200 legislative seats.

Thus did the petitioners claim that in reapportioning legislative districts independently from the creation of a province, Congress is bound to observe a 250,000 population threshold, in the same manner that the Constitutional Commission did in the original apportionment.

Verbatim, the submission is that:

1. Republic Act 9716 is unconstitutional because the newly apportioned first district of Camarines Sur failed to meet the population requirement for the creation of the legislative district as explicitly provided in Article VI, Section 5, Paragraphs (1) and (3) of the Constitution and Section 3 of the Ordinance appended thereto; and

2. Republic Act 9716 violates the principle of proportional representation as provided in Article VI, Section 5 paragraphs (1), (3) and (4) of the Constitution.12

The provision subject of this case states:

Article VI

Section 5. (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) x x x x

(3) Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative.

(4) Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section.

On the other hand, the respondents, through the Office of the Solicitor General, seek the dismissal of the present petition based on procedural and substantive grounds.

On procedural matters, the respondents argue that the petitioners are guilty of two (2) fatal technical defects: first, petitioners committed an error in choosing to assail the constitutionality of Republic Act No. 9716 via the remedy of Certiorari and Prohibition under Rule 65 of the Rules of Court; and second, the petitioners have no locus standi to question the constitutionality of Republic Act No. 9716.

On substantive matters, the respondents call attention to an apparent distinction between cities and provinces drawn by Section 5(3), Article VI of the 1987 Constitution. The respondents concede the existence of a 250,000 population condition, but argue that a plain and simple reading of the questioned provision will show that the same has no application with respect to the creation of legislative districts in provinces.13 Rather, the 250,000 minimum population is only a requirement for the creation of a legislative district in a city.

In sum, the respondents deny the existence of a fixed population requirement for the reapportionment of districts in provinces. Therefore, Republic Act No. 9716, which only creates an additional legislative district within the province of Camarines Sur, should be sustained as a perfectly valid reapportionment law.

We first pass upon the threshold issues.

The respondents assert that by choosing to avail themselves of the remedies of Certiorari and Prohibition, the petitioners have committed a fatal procedural lapse. The respondents cite the following reasons:

1. The instant petition is bereft of any allegation that the respondents had acted without or in excess of jurisdiction, or with grave abuse of discretion.1avvphi1

2. The remedy of Certiorari and Prohibition must be directed against a tribunal, board, officer or person, whether exercising judicial, quasi-judicial, or ministerial functions. Respondents maintain that in implementing Republic Act No. 9716, they were not acting as a judicial or quasi-judicial body, nor were they engaging in the performance of a ministerial act.

3. The petitioners could have availed themselves of another plain, speedy and adequate remedy in the ordinary course of law.

Considering that the main thrust of the instant petition is the declaration of unconstitutionality of Republic Act No. 9716, the same could have been ventilated through a petition for declaratory relief, over which the Supreme Court has only appellate, not original jurisdiction.

The respondents likewise allege that the petitioners had failed to show that they had sustained, or is in danger of sustaining any substantial injury as a result of the implementation of Republic Act No. 9716. The respondents, therefore, conclude that the petitioners lack the required legal standing to question the constitutionality of Republic Act No. 9716.

This Court has paved the way away from procedural debates when confronted with issues that, by reason of constitutional importance, need a direct focus of the arguments on their content and substance.

The Supreme Court has, on more than one occasion, tempered the application of procedural rules,14 as well as relaxed the requirement of locus standi whenever confronted with an important issue of overreaching significance to society.15

Hence, in Del Mar v. Philippine Amusement and Gaming Corporation (PAGCOR)16 and Jaworski v. PAGCOR,17 this Court sanctioned momentary deviation from the principle of the hierarchy of courts, and took original cognizance of cases raising issues of paramount public importance. The Jaworski case ratiocinates:

Granting arguendo that the present action cannot be properly treated as a petition for prohibition, the transcendental importance of the issues involved in this case warrants that we set aside the technical defects and take primary jurisdiction over the petition at bar. One cannot deny that the issues raised herein have potentially pervasive influence on the social and moral well being of this nation, specially the youth; hence, their proper and just determination is an imperative need. This is in accordance with the well-entrenched principle that rules of procedure are not inflexible tools designed to hinder or delay, but to facilitate and promote the administration of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate, rather than promote substantial justice, must always be

eschewed. (Emphasis supplied)

Anent the locus standi requirement, this Court has already uniformly ruled in Kilosbayan v. Guingona,18 Tatad v. Executive Secretary,19

Chavez v. Public Estates Authority20 and Bagong Alyansang Makabayan v. Zamora,21 just to name a few, that absence of direct injury on the part of the party seeking judicial review may be excused when the latter is able to craft an issue of transcendental importance. In Lim v. Executive Secretary,22 this Court held that in cases of transcendental importance, the cases must be settled promptly and definitely, and so, the standing requirements may be relaxed. This liberal stance has been echoed in the more recent decision on Chavez v. Gonzales.23

Given the weight of the issue raised in the instant petition, the foregoing principles must apply. The beaten path must be taken. We go directly to the determination of whether or not a population of 250,000 is an indispensable constitutional requirement for the creation of a new legislative district in a province.

We deny the petition.

We start with the basics. Any law duly enacted by Congress carries with it the presumption of constitutionality.24 Before a law may be declared unconstitutional by this Court, there must be a clear showing that a specific provision of the fundamental law has been violated or transgressed. When there is neither a violation of a specific provision of the Constitution nor any proof showing that there is such a violation, the presumption of constitutionality will prevail and the law must be upheld. To doubt is to sustain.25

There is no specific provision in the Constitution that fixes a 250,000 minimum population that must compose a legislative district.

As already mentioned, the petitioners rely on the second sentence of Section 5(3), Article VI of the 1987 Constitution, coupled with what they perceive to be the intent of the framers of the Constitution to adopt a minimum population of 250,000 for each legislative district.

The second sentence of Section 5(3), Article VI of the Constitution, succinctly provides: "Each city with a population of at least two

hundred fifty thousand, or each province, shall have at least one representative."

The provision draws a plain and clear distinction between the entitlement of a city to a district on one hand, and the entitlement of a province to a district on the other. For while a province is entitled to at least a representative, with nothing mentioned about population, a city must first meet a population minimum of 250,000 in order to be similarly entitled.

The use by the subject provision of a comma to separate the phrase "each city with a population of at least two hundred fifty thousand" from the phrase "or each province" point to no other conclusion than that the 250,000 minimum population is only required for a city, but not for a province. 26

Plainly read, Section 5(3) of the Constitution requires a 250,000 minimum population only for a city to be entitled to a representative, but not so for a province.

The 250,000 minimum population requirement for legislative districts in cities was, in turn, the subject of interpretation by this Court in

Mariano, Jr. v. COMELEC.27

In Mariano, the issue presented was the constitutionality of Republic Act No. 7854, which was the law that converted the Municipality of Makati into a Highly Urbanized City. As it happened, Republic Act No. 7854 created an additional legislative district for Makati, which at that time was a lone district. The petitioners in that case argued that the creation of an additional district would violate Section 5(3), Article VI of the Constitution, because the resulting districts would be supported by a population of less than 250,000, considering that Makati had a total population of only 450,000. The Supreme Court sustained the constitutionality of the law and the validity of the newly created district, explaining the operation of the Constitutional phrase "each city with a population of at least two hundred fifty thousand," to wit:

Petitioners cannot insist that the addition of another legislative district in Makati is not in accord with section 5(3), Article VI of the Constitution for as of the latest survey (1990 census), the population of Makati stands at only four hundred fifty thousand (450,000). Said

section provides, inter alia, that a city with a population of at least two hundred fifty thousand (250,000) shall have at least one representative. Even granting that the population of Makati as of the 1990 census stood at four hundred fifty thousand (450,000), its legislative district may still be increased since it has met the minimum population requirement of two hundred fifty thousand (250,000). In fact, Section 3 of the Ordinance appended to the Constitution provides that a city whose population has increased to more than two hundred fifty thousand (250,000) shall be entitled to at least one congressional representative.28 (Emphasis supplied)

The Mariano case limited the application of the 250,000 minimum population requirement for cities only to its initial legislative district. In other words, while Section 5(3), Article VI of the Constitution requires a city to have a minimum population of 250,000 to be entitled to a representative, it does not have to increase its population by another 250,000 to be entitled to an additional district.

There is no reason why the Mariano case, which involves the creation of an additional district within a city, should not be applied to

additional districts in provinces. Indeed, if an additional legislative district created within a city is not required to represent a population

of at least 250,000 in order to be valid, neither should such be needed for an additional district in a province, considering moreover

that a province is entitled to an initial seat by the mere fact of its creation and regardless of its population.

Apropos for discussion is the provision of the Local Government Code on the creation of a province which, by virtue of and upon creation, is entitled to at least a legislative district. Thus, Section 461 of the Local Government Code states:

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 (P20,000,000.00) based on 1991 constant 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.

Notably, the requirement of population is not an indispensable requirement, but is merely an alternative addition to the indispensable income requirement.

Mariano, it would turn out, is but a reflection of the pertinent ideas that ran through the deliberations on the words and meaning of Section 5 of Article VI.

The whats, whys, and wherefores of the population requirement of "at least two hundred fifty thousand" may be gleaned from the records of the Constitutional Commission which, upon framing the provisions of Section 5 of Article VI, proceeded to form an ordinance that would be appended to the final document. The Ordinance is captioned "APPORTIONING THE SEATS OF THE HOUSE OF REPRESENTATIVES OF THE CONGRESS OF THE PHILIPPINES TO THE DIFFERENT LEGISLATIVE DISTRICTS IN PROVINCES AND CITIES AND THE METROPOLITAN MANILA AREA." Such records would show that the 250,000 population benchmark was used for the 1986 nationwide apportionment of legislative districts among provinces, cities and Metropolitan Manila. Simply put, the population figure was used to determine how many districts a province, city, or Metropolitan Manila should have. Simply discernible too is the fact that, for the purpose, population had to be the determinant. Even then, the requirement of 250,000 inhabitants was not taken as an absolute minimum for one legislative district. And, closer to the point herein at issue, in the determination of the precise district within the province to which, through the use of the population benchmark, so many districts have been apportioned, population as a factor was not the sole, though it was among, several determinants.

From its journal,29 we can see that the Constitutional Commission originally divided the entire country into two hundred (200) districts, which corresponded to the original number of district representatives. The 200 seats were distributed by the Constitutional Commission in this manner: first, one (1) seat each was given to the seventy-three (73) provinces and the ten (10) cities with a population of at least 250,000;30 second, the remaining seats were then redistributed among the provinces, cities and the Metropolitan Area "in accordance

with the number of their inhabitants on the basis of a uniform and progressive ratio."31 Commissioner Davide, who later became a Member and then Chief Justice of the Court, explained this in his sponsorship remark32 for the Ordinance to be appended to the 1987 Constitution:

Commissioner Davide: The ordinance fixes at 200 the number of legislative seats which are, in turn, apportioned among provinces and cities with a population of at least 250, 000 and the Metropolitan Area in accordance with the number of their respective inhabitants on the basis of a uniform and progressive ratio. The population is based on the 1986 projection, with the 1980 official enumeration as the point of reckoning. This projection indicates that our population is more or less 56 million. Taking into account the mandate that each city with at least 250, 000 inhabitants and each province shall have at least one representative, we first allotted one seat for each of the 73 provinces, and each one for all cities with a population of at least 250, 000, which are the Cities of Manila, Quezon, Pasay, Caloocan, Cebu, Iloilo, Bacolod, Cagayan de Oro, Davao and Zamboanga. Thereafter, we then proceed[ed] to increase whenever appropriate the number of seats for the provinces and cities in accordance with the number of their inhabitants on the basis of a uniform and progressive ratio. (Emphasis supplied).

Thus was the number of seats computed for each province and city. Differentiated from this, the determination of the districts within the province had to consider "all protests and complaints formally received" which, the records show, dealt with determinants other than population as already mentioned.

Palawan is a case in point. Journal No. 107 of the Constitutional Commission narrates:

INTERPELLATION OF MR. NOLLEDO:

Mr. Nolledo inquired on the reason for including Puerto Princesa in the northern towns when it was more affinity with the southern town of Aborlan, Batarasa, Brooke’s Point, Narra, Quezon and Marcos. He stated that the First District has a greater area than the Second District. He then queried whether population was the only factor

considered by the Committee in redistricting.

Replying thereto, Mr. Davide explained that the Committee took into account the standards set in Section 5 of the Article on the Legislative Department, namely: 1) the legislative seats should be apportioned among the provinces and cities and the Metropolitan Manila area in accordance with their inhabitants on the basis of a uniform and progressive ratio; and 2) the legislative district must be compact, adjacent and contiguous.

Mr. Nolledo pointed out that the last factor was not met when Puerto Princesa was included with the northern towns. He then inquired what is the distance between Puerto Princesa from San Vicente.

x x x x

Thereupon, Mr. Nolledo stated that Puerto Princesa has a population of 75,480 and based on the apportionment, its inclusion with the northern towns would result in a combined population of 265,000 as against only 186,000 for the south. He added that Cuyo and Coron are very important towns in the northern part of Palawan and, in fact, Cuyo was the capital of Palawan before its transfer to Puerto Princesa. He also pointed out that there are more potential candidates in the north and therefore if Puerto Princesa City and the towns of Cuyo and Coron are lumped together, there would be less candidates in the south, most of whose inhabitants are not interested in politics. He then suggested that Puerto Princesa be included in the south or the Second District.

Mr. Davide stated that the proposal would be considered during the period of amendments. He requested that the COMELEC staff study said proposal.33

"PROPOSED AMENDMENT OF MR. NOLLEDO

On the districting of Palawan, Mr. Nolledo pointed out that it was explained in the interpellations that District I has a total population of 265,358 including the City of Puerto Princesa, while the Second District has a total population of 186,733. He proposed, however, that Puerto Princesa be included in the Second District in order to satisfy the contiguity requirement in the Constitution considering that said

City is nearer the southern towns comprising the Second District.

In reply to Mr. Monsod’s query, Mr. Nolledo explained that with the proposed transfer of Puerto Princesa City to the Second District, the First District would only have a total population of 190,000 while the Second District would have 262,213, and there would be no substantial changes.

Mr. Davide accepted Mr. Nolledo’s proposal to insert Puerto Princesa City before the Municipality of Aborlan.

There being no objection on the part of the Members the same was approved by the Body.

APPROVAL OF THE APPORTIONMENT AND DISTRICTING OF PALAWAN

There being no other amendment, on motion of Mr. Davide, there being no objection, the apportionment and districting for the province of Palawan was approved by the Body.34

The districting of Palawan disregarded the 250,000 population figure. It was decided by the importance of the towns and the city that eventually composed the districts.

Benguet and Baguio are another reference point. The Journal further narrates:

At this juncture, Mr. Davide informed the Body that Mr. Regalado made a reservation with the Committee for the possible reopening of the approval of Region I with respect to Benguet and Baguio City.

REMARKS OF MR. REGALADO

Mr. Regalado stated that in the formulation of the Committee, Baguio City and Tuba are placed in one district. He stated that he was toying with the idea that, perhaps as a special consideration for Baguio because it is the summer capital of the Philippines, Tuba could be divorced from Baguio City so that it could, by itself, have its own constituency and Tuba could be transferred to the Second District together with Itogon. Mr. Davide, however, pointed out that the

population of Baguio City is only 141,149.

Mr. Regalado admitted that the regular population of Baguio may be lower during certain times of the year, but the transient population would increase the population substantially and, therefore, for purposes of business and professional transactions, it is beyond question that population-wise, Baguio would more than qualify, not to speak of the official business matters, transactions and offices that are also there.

Mr. Davide adverted to Director de Lima’s statement that unless Tuba and Baguio City are united, Tuba will be isolated from the rest of Benguet as the place can only be reached by passing through Baguio City. He stated that the Committee would submit the matter to the Body.

Upon inquiry of the Chair whether he is insisting on his amendment, Mr. Regalado stated that the Body should have a say on the matter and that the considerations he had given are not on the demographic aspects but on the fact that Baguio City is the summer capital, the venue and situs of many government offices and functions.

On motion of Mr. Davide, there being no objection, the Body approved the reconsideration of the earlier approval of the apportionment and districting of Region I, particularly Benguet.

Thereafter, on motion of Mr. Davide, there being no objection, the amendment of Mr. Regalado was put to a vote. With 14 Members voting in favor and none against, the amendment was approved by the Body.

Mr. Davide informed that in view of the approval of the amendment, Benguet with Baguio City will have two seats. The First District shall comprise of the municipalities of Mankayan, Buguias, Bakun, Kabayan, Kibungan, Bokod, Atok, Kapangan, Tublay, La Trinidad, Sablan, Itogon and Tuba. The Second District shall comprise of Baguio City alone.

There being no objection, the Body approved the apportionment and districting of Region I.35

Quite emphatically, population was explicitly removed as a factor.

It may be additionally mentioned that the province of Cavite was divided into districts based on the distribution of its three cities, with each district having a city: one district "supposed to be a fishing area; another a vegetable and fruit area; and the third, a rice growing area," because such consideration "fosters common interests in line with the standard of compactness."36 In the districting of Maguindanao, among the matters discussed were "political stability and common interest among the people in the area" and the possibility of "chaos and disunity" considering the "accepted regional, political, traditional and sectoral leaders."37 For Laguna, it was mentioned that municipalities in the highland should not be grouped with the towns in the lowland. For Cebu, Commissioner Maambong proposed that they should "balance the area and population."38

Consistent with Mariano and with the framer deliberations on district apportionment, we stated in Bagabuyo v. COMELEC39 that:

x x x Undeniably, these figures show a disparity in the population sizes of the districts. The Constitution, however, does not require mathematical exactitude or rigid equality as a standard in gauging equality of representation. x x x. To ensure quality representation through commonality of interests and ease of access by the representative to the constituents, all that the Constitution requires is that every legislative district should comprise, as far as practicable, contiguous, compact and adjacent territory. (Emphasis supplied).

This 2008 pronouncement is fresh reasoning against the uncompromising stand of petitioner that an additional provincial legislative district, which does not have at least a 250,000 population is not allowed by the Constitution.

The foregoing reading and review lead to a clear lesson.

Neither in the text nor in the essence of Section 5, Article VI of the Constitution can, the petition find support. And the formulation of the Ordinance in the implementation of the provision, nay, even the Ordinance itself, refutes the contention that a population of 250,000 is a constitutional sine qua non for the formation of an additional legislative district in a province, whose population growth has

increased beyond the 1986 numbers.

Translated in the terms of the present case:

1. The Province of Camarines Sur, with an estimated population of 1,693,821 in 2007 is ─ based on the formula and constant number of 250,000 used by the Constitutional Commission in nationally apportioning legislative districts among provinces and cities ─ entitled to two (2) districts in addition to the four (4) that it was given in the 1986 apportionment. Significantly, petitioner Aquino concedes this point.40 In other words, Section 5 of Article VI as clearly written allows and does not prohibit an additional district for the Province of Camarines Sur, such as that provided for in Republic Act No. 9786;

2. Based on the pith and pitch of the exchanges on the Ordinance on the protests and complaints against strict conformity with the population standard, and more importantly based on the final districting in the Ordinance on considerations other than population, the reapportionment or the recomposition of the first and second legislative districts in the Province of Camarines Sur that resulted in the creation of a new legislative district is valid even if the population of the new district is 176,383 and not 250,000 as insisted upon by the petitioners.

3. The factors mentioned during the deliberations on House Bill No. 4264, were:

(a) the dialects spoken in the grouped municipalities;

(b) the size of the original groupings compared to that of the regrouped municipalities;

(c) the natural division separating the municipality subject of the discussion from the reconfigured District One; and

(d) the balancing of the areas of the three districts resulting from the redistricting of Districts One and Two.41

Each of such factors and in relation to the others considered together, with the increased population of the erstwhile Districts One and Two, point to the utter absence of abuse of discretion, much less grave

abuse of discretion,42 that would warrant the invalidation of Republic Act No. 9716.

To be clear about our judgment, we do not say that in the reapportionment of the first and second legislative districts of Camarines Sur, the number of inhabitants in the resulting additional district should not be considered. Our ruling is that population is not the only factor but is just one of several other factors in the composition of the additional district. Such settlement is in accord with both the text of the Constitution and the spirit of the letter, so very clearly given form in the Constitutional debates on the exact issue presented by this petition.1avvphi1

WHEREFORE, the petition is hereby DISMISSED. Republic Act No. 9716 entitled "An Act Reapportioning the Composition of the First (1st) and Second (2nd) Legislative Districts in the Province of Camarines Sur and Thereby Creating a New Legislative District From Such Reapportionment" is a VALID LAW.

SO ORDERED.

JOSE PORTUGAL PEREZAssociate Justice

WE CONCUR:

REYNATO S. PUNOChief Justice

ANTONIO T. CARPIOAssociate Justice

RENATO C. CORONAAssociate Justice

CONCHITA CARPIO MORALESAssociate Justice

PRESBITERO J. VELASCO, JR.Associate Justice

ANTONIO EDUARDO B. NACHURAAssociate Justice

TERESITA J. LEONARDO-DE CASTROAssociate Justice

ARTURO D. BRIONAssociate Justice

DIOSDADO M. PERALTAAssociate Justice

LUCAS P. BERSAMINAssociate Justice

MARIANO C. DEL CASTILLOAssociate Justice

(On Official Leave)ROBERTO A. ABAD*

Associate Justice

MARTIN S. VILLARAMA, JR.Associate Justice

JOSE CATRAL MENDOZAAssociate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNOChief Justice

Footnotes

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. 180643             September 4, 2008

ROMULO L. NERI, petitioner, vs.SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON NATIONAL DEFENSE AND SECURITY, respondents.

RESOLUTION

LEONARDO-DE CASTRO, J.:

Executive privilege is not a personal privilege, but one that

adheres to the Office of the President. It exists to protect public interest, not to benefit a particular public official. Its purpose, among others, is to assure that the nation will receive the benefit of candid, objective and untrammeled communication and exchange of information between the President and his/her advisers in the process of shaping or forming policies and arriving at decisions in the exercise of the functions of the Presidency under the Constitution. The confidentiality of the President’s conversations and correspondence is not unique. It is akin to the confidentiality of judicial deliberations. It possesses the same value as the right to privacy of all citizens and more, because it is dictated by public interest and the constitutionally ordained separation of governmental powers.

In these proceedings, this Court has been called upon to exercise its power of review and arbitrate a hotly, even acrimoniously, debated dispute between the Court’s co-equal branches of government. In this task, this Court should neither curb the legitimate powers of any of the co-equal and coordinate branches of government nor allow any of them to overstep the boundaries set for it by our Constitution. The competing interests in the case at bar are the claim of executive privilege by the President, on the one hand, and the respondent Senate Committees’ assertion of their power to conduct legislative inquiries, on the other. The particular facts and circumstances of the present case, stripped of the politically and emotionally charged rhetoric from both sides and viewed in the light of settled constitutional and legal doctrines, plainly lead to the conclusion that the claim of executive privilege must be upheld.

Assailed in this motion for reconsideration is our Decision dated March 25, 2008 (the "Decision"), granting the petition for certiorari filed by petitioner Romulo L. Neri against the

respondent Senate Committees on Accountability of Public Officers and Investigations,1 Trade and Commerce,2 and National Defense and Security (collectively the "respondent Committees").3

A brief review of the facts is imperative.

On September 26, 2007, petitioner appeared before respondent Committees and testified for about eleven (11) hours on matters concerning the National Broadband Project (the "NBN Project"), a project awarded by the Department of Transportation and Communications ("DOTC") to Zhong Xing Telecommunications Equipment ("ZTE"). Petitioner disclosed that then Commission on Elections ("COMELEC") Chairman Benjamin Abalos offered him P200 Million in exchange for his approval of the NBN Project. He further narrated that he informed President Gloria Macapagal Arroyo ("President Arroyo") of the bribery attempt and that she instructed him not to accept the bribe. However, when probed further on President Arroyo and petitioner’s discussions relating to the NBN Project, petitioner refused to answer, invoking "executive privilege." To be specific, petitioner refused to answer questions on: (a) whether or not President Arroyo followed up the NBN Project,4 (b) whether or not she directed him to prioritize it,5 and (c) whether or not she directed him to approve it.6

Respondent Committees persisted in knowing petitioner’s answers to these three questions by requiring him to appear and testify once more on November 20, 2007. On November 15, 2007, Executive Secretary Eduardo R. Ermita wrote to respondent Committees and requested them to dispense with petitioner’s testimony on the ground of executive privilege.7 The letter of Executive Secretary Ermita pertinently stated:

Following the ruling in Senate v. Ermita, the foregoing questions fall under conversations and correspondence between the President and public officials which are considered executive privilege (Almonte v. Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July 9, 2002). Maintaining the confidentiality of conversations of the President is necessary in the exercise of her executive and policy decision making process. The expectation of a President to the confidentiality of her conversations and correspondences, like the value which we accord deference for the privacy of all citizens, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. Disclosure of conversations of the President will have a chilling effect on the President, and will hamper her in the effective discharge of her duties and responsibilities, if she is not protected by the confidentiality of her conversations.

The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the People’s Republic of China. Given the confidential nature in which these information were conveyed to the President, he cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect.

In light of the above considerations, this Office is constrained to invoke the settled doctrine of executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly.

Considering that Sec. Neri has been lengthily interrogated on the subject in an unprecedented 11-hour hearing, wherein he has answered all questions propounded to him

except the foregoing questions involving executive privilege, we therefore request that his testimony on 20 November 2007 on the ZTE / NBN project be dispensed with.

On November 20, 2007, petitioner did not appear before respondent Committees upon orders of the President invoking executive privilege. On November 22, 2007, the respondent Committees issued the show-cause letter requiring him to explain why he should not be cited in contempt. On November 29, 2007, in petitioner’s reply to respondent Committees, he manifested that it was not his intention to ignore the Senate hearing and that he thought the only remaining questions were those he claimed to be covered by executive privilege. He also manifested his willingness to appear and testify should there be new matters to be taken up. He just requested that he be furnished "in advance as to what else" he "needs to clarify."

Respondent Committees found petitioner’s explanations unsatisfactory. Without responding to his request for advance notice of the matters that he should still clarify, they issued the Order dated January 30, 2008; In Re: P.S. Res. Nos. 127,129,136 & 144; and privilege speeches of Senator Lacson and Santiago (all on the ZTE-NBN Project), citing petitioner in contempt of respondent Committees and ordering his arrest and detention at the Office of the Senate Sergeant-at-Arms until such time that he would appear and give his testimony.

On the same date, petitioner moved for the reconsideration of the above Order.8 He insisted that he had not shown "any contemptible conduct worthy of contempt and arrest." He emphasized his willingness to testify on new matters, but respondent Committees did not respond to his request for advance notice of questions. He also mentioned the petition

for certiorari he previously filed with this Court on December 7, 2007. According to him, this should restrain respondent Committees from enforcing the order dated January 30, 2008 which declared him in contempt and directed his arrest and detention.

Petitioner then filed his Supplemental Petition for Certiorari (with Urgent Application for TRO/Preliminary Injunction) on February 1, 2008. In the Court’s Resolution dated February 4, 2008, the parties were required to observe the status quo prevailing prior to the Order dated January 30, 2008.

On March 25, 2008, the Court granted his petition for certiorari on two grounds: first, the communications elicited by the three (3) questions were covered by executive privilege; and second, respondent Committees committed grave abuse of discretion in issuing the contempt order. Anent the first ground, we considered the subject communications as falling under the presidential communications privilege because (a) they related to a quintessential and non-delegable power of the President, (b) they were received by a close advisor of the President, and (c) respondent Committees failed to adequately show a compelling need that would justify the limitation of the privilege and the unavailability of the information elsewhere by an appropriate investigating authority. As to the second ground, we found that respondent Committees committed grave abuse of discretion in issuing the contempt order because (a) there was a valid claim of executive privilege, (b) their invitations to petitioner did not contain the questions relevant to the inquiry, (c) there was a cloud of doubt as to the regularity of the proceeding that led to their issuance of the contempt order, (d) they violated Section 21, Article VI of the Constitution because their inquiry was not in accordance with the "duly published rules of procedure," and (e) they

issued the contempt order arbitrarily and precipitately.

On April 8, 2008, respondent Committees filed the present motion for reconsideration, anchored on the following grounds:

I

CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE IS NO DOUBT THAT THE ASSAILED ORDERS WERE ISSUED BY RESPONDENT COMMITTEES PURSUANT TO THE EXERCISE OF THEIR LEGISLATIVE POWER, AND NOT MERELY THEIR OVERSIGHT FUNCTIONS.

II

CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE CAN BE NO PRESUMPTION THAT THE INFORMATION WITHHELD IN THE INSTANT CASE IS PRIVILEGED.

III

CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE IS NO FACTUAL OR LEGAL BASIS TO HOLD THAT THE COMMUNICATIONS ELICITED BY THE SUBJECT THREE (3) QUESTIONS ARE COVERED BY EXECUTIVE PRIVILEGE, CONSIDERING THAT:

A. THERE IS NO SHOWING THAT THE MATTERS FOR WHICH EXECUTIVE PRIVILEGE IS CLAIMED CONSTITUTE STATE SECRETS.

B. EVEN IF THE TESTS ADOPTED BY THIS HONORABLE COURT IN THE DECISION IS APPLIED,

THERE IS NO SHOWING THAT THE ELEMENTS OF PRESIDENTIAL COMMUNICATIONS PRIVILEGE ARE PRESENT.

C. ON THE CONTRARY, THERE IS ADEQUATE SHOWING OF A COMPELLING NEED TO JUSTIFY THE DISCLOSURE OF THE INFORMATION SOUGHT.

D. TO UPHOLD THE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE WOULD SERIOUSLY IMPAIR THE RESPONDENTS’ PERFORMANCE OF THEIR PRIMARY FUNCTION TO ENACT LAWS.

E. FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO INFORMATION, AND THE CONSTITUTIONAL POLICIES ON PUBLIC ACCOUNTABILITY AND TRANSPARENCY OUTWEIGH THE CLAIM OF EXECUTIVE PRIVILEGE.

IV

CONTRARY TO THIS HONORABLE COURT’S DECISION, RESPONDENTS DID NOT COMMIT GRAVE ABUSE OF DISCRETION IN ISSUING THE ASSAILED CONTEMPT ORDER, CONSIDERING THAT:

A. THERE IS NO LEGITIMATE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE.

B. RESPONDENTS DID NOT VIOLATE THE SUPPOSED REQUIREMENTS LAID DOWN IN SENATE V. ERMITA.

C. RESPONDENTS DULY ISSUED THE CONTEMPT ORDER IN ACCORDANCE WITH THEIR INTERNAL RULES.

D. RESPONDENTS DID NOT VIOLATE THE REQUIREMENTS UNDER ARTICLE VI, SECTION 21 OF THE CONSTITUTION REQUIRING THAT ITS RULES OF PROCEDURE BE DULY PUBLISHED, AND WERE DENIED DUE PROCESS WHEN THE COURT CONSIDERED THE OSG’S INTERVENTION ON THIS ISSUE WITHOUT GIVING RESPONDENTS THE OPPORTUNITY TO COMMENT.

E. RESPONDENTS’ ISSUANCE OF THE CONTEMPT ORDER IS NOT ARBITRARY OR PRECIPITATE.

In his Comment, petitioner charges respondent Committees with exaggerating and distorting the Decision of this Court. He avers that there is nothing in it that prohibits respondent Committees from investigating the NBN Project or asking him additional questions. According to petitioner, the Court merely applied the rule on executive privilege to the facts of the case. He further submits the following contentions: first, the assailed Decision did not reverse the presumption against executive secrecy laid down in Senate v. Ermita; second, respondent Committees failed to overcome the presumption of executive privilege because it appears that they could legislate even without the communications elicited by the three (3) questions, and they admitted that they could dispense with petitioner’s testimony if certain NEDA documents would be given to them; third, the requirement of specificity applies only to the privilege for State, military and diplomatic secrets, not to the necessarily broad and all-encompassing presidential communications privilege; fourth, there is no right to pry into the President’s thought processes or exploratory exchanges; fifth, petitioner is not covering up or hiding anything illegal; sixth, the Court has the power and duty to annul the Senate Rules; seventh, the Senate is not a continuing body, thus the failure of the

present Senate to publish its Rules of Procedure Governing Inquiries in Aid of Legislation (Rules) has a vitiating effect on them; eighth, the requirement for a witness to be furnished advance copy of questions comports with due process and the constitutional mandate that the rights of witnesses be respected; and ninth, neither petitioner nor respondent has the final say on the matter of executive privilege, only the Court.

For its part, the Office of the Solicitor General maintains that: (1) there is no categorical pronouncement from the Court that the assailed Orders were issued by respondent Committees pursuant to their oversight function; hence, there is no reason for them "to make much" of the distinction between Sections 21 and 22, Article VI of the Constitution; (2) presidential communications enjoy a presumptive privilege against disclosure as earlier held in Almonte v. Vasquez9 and Chavez v. Public Estates Authority (PEA)10; (3) the communications elicited by the three (3) questions are covered by executive privilege, because all the elements of the presidential communications privilege are present; (4) the subpoena ad testificandum issued by respondent Committees to petitioner is fatally defective under existing law and jurisprudence; (5) the failure of the present Senate to publish its Rules renders the same void; and (6) respondent Committees arbitrarily issued the contempt order.

Incidentally, respondent Committees’ objection to the Resolution dated March 18, 2008 (granting the Office of the Solicitor General’s Motion for Leave to Intervene and to Admit Attached Memorandum) only after the promulgation of the Decision in this case is foreclosed by its untimeliness.

The core issues that arise from the foregoing respective

contentions of the opposing parties are as follows:

(1) whether or not there is a recognized presumptive presidential communications privilege in our legal system;

(2) whether or not there is factual or legal basis to hold that the communications elicited by the three (3) questions are covered by executive privilege;

(3) whether or not respondent Committees have shown that the communications elicited by the three (3) questions are critical to the exercise of their functions; and

(4) whether or not respondent Committees committed grave abuse of discretion in issuing the contempt order.

We shall discuss these issues seriatim.

I

There Is a Recognized PresumptivePresidential Communications Privilege

Respondent Committees ardently argue that the Court’s declaration that presidential communications are presumptively privileged reverses the "presumption" laid down in Senate v. Ermita11 that "inclines heavily against executive secrecy and in favor of disclosure." Respondent Committees then claim that the Court erred in relying on the doctrine in Nixon.

Respondent Committees argue as if this were the first time the presumption in favor of the presidential communications privilege is mentioned and adopted in our legal system. That is far from the truth. The Court, in the earlier case of Almonte v. Vasquez,12 affirmed that the

presidential communications privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution. Even Senate v. Ermita,13 the case relied upon by respondent Committees, reiterated this concept. There, the Court enumerated the cases in which the claim of executive privilege was recognized, among them Almonte v. Chavez, Chavez v. Presidential Commission on Good Government (PCGG),14

and Chavez v. PEA.15 The Court articulated in these cases that "there are certain types of information which the government may withhold from the public,16" that there is a "governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters";17 and that "the right to information does not extend to matters recognized as ‘privileged information’ under the separation of powers, by which the Court meant Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings."18

Respondent Committees’ observation that this Court’s Decision reversed the "presumption that inclines heavily against executive secrecy and in favor of disclosure" arises from a piecemeal interpretation of the said Decision. The Court has repeatedly held that in order to arrive at the true intent and meaning of a decision, no specific portion thereof should be isolated and resorted to, but the decision must be considered in its entirety.19

Note that the aforesaid presumption is made in the context of the circumstances obtaining in Senate v. Ermita, which declared void Sections 2(b) and 3 of Executive Order (E.O.) No. 464, Series of 2005. The pertinent portion of the decision in the said case reads:

From the above discussion on the meaning and scope of executive privilege, both in the United States and in this jurisprudence, a clear principle emerges. Executive privilege, whether asserted against Congress, the courts, or the public, is recognized only in relation to certain types of information of a sensitive character. While executive privilege is a constitutional concept, a claim thereof may be valid or not depending on the ground invoked to justify it and the context in which it is made. Noticeably absent is any recognition that executive officials are exempt from the duty to disclose information by the mere fact of being executive officials. Indeed, the extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure. (Emphasis and underscoring supplied)

Obviously, the last sentence of the above-quoted paragraph in Senate v. Ermita refers to the "exemption" being claimed by the executive officials mentioned in Section 2(b) of E.O. No. 464, solely by virtue of their positions in the Executive Branch. This means that when an executive official, who is one of those mentioned in the said Sec. 2(b) of E.O. No. 464, claims to be exempt from disclosure, there can be no presumption of authorization to invoke executive privilege given by the President to said executive official, such that the presumption in this situation inclines heavily against executive secrecy and in favor of disclosure.

Senate v. Ermita 20 expounds on the premise of the foregoing ruling in this wise:

Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a certain information is privileged, such determination is presumed to bear the President’s authority and has the effect of prohibiting the

official from appearing before Congress, subject only to the express pronouncement of the President that it is allowing the appearance of such official. These provisions thus allow the President to authorize claims of privilege by mere silence.

Such presumptive authorization, however, is contrary to the exceptional nature of the privilege. Executive privilege, as already discussed, is recognized with respect to information the confidential nature of which is crucial to the fulfillment of the unique role and responsibilities of the executive branch, or in those instances where exemption from disclosure is necessary to the discharge of highly important executive responsibilities. The doctrine of executive privilege is thus premised on the fact that certain information must, as a matter of necessity, be kept confidential in pursuit of the public interest. The privilege being, by definition, an exemption from the obligation to disclose information, in this case to Congress, the necessity must be of such high degree as to outweigh the public interest in enforcing that obligation in a particular case.

In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President the power to invoke the privilege. She may of course authorize the Executive Secretary to invoke the privilege on her behalf, in which case the Executive Secretary must state that the authority is "By order of the President", which means that he personally consulted with her. The privilege being an extraordinary power, it must be wielded only by the highest official in the executive hierarchy. In other words, the President may not authorize her subordinates to exercise such power. There is even less reason to uphold such authorization in the instant case where the authorization is not explicit but by mere silence. Section 3, in relation to

Section 2(b), is further invalid on this score.

The constitutional infirmity found in the blanket authorization to invoke executive privilege granted by the President to executive officials in Sec. 2(b) of E.O. No. 464 does not obtain in this case.

In this case, it was the President herself, through Executive Secretary Ermita, who invoked executive privilege on a specific matter involving an executive agreement between the Philippines and China, which was the subject of the three (3) questions propounded to petitioner Neri in the course of the Senate Committees’ investigation. Thus, the factual setting of this case markedly differs from that passed upon in Senate v. Ermita.

Moreover, contrary to the claim of respondents, the Decision in this present case hews closely to the ruling in Senate v. Ermita,21 to wit:

Executive privilege

The phrase "executive privilege" is not new in this jurisdiction. It has been used even prior to the promulgation of the 1986 Constitution. Being of American origin, it is best understood in light of how it has been defined and used in the legal literature of the United States.

Schwart defines executive privilege as "the power of the Government to withhold information from the public, the courts, and the Congress. Similarly, Rozell defines it as "the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public." x x x In this jurisdiction, the doctrine of executive privilege was recognized by this Court

in Almonte v. Vasquez. Almonte used the term in reference to the same privilege subject of Nixon. It quoted the following portion of the Nixon decision which explains the basis for the privilege:

"The expectation of a President to the confidentiality of his conversations and correspondences, like the claim of confidentiality of judicial deliberations, for example, he has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution x x x " (Emphasis and italics supplied)

Clearly, therefore, even Senate v. Ermita adverts to "a presumptive privilege for Presidential communication," which was recognized early on in Almonte v. Vasquez. To construe the passage in Senate v. Ermita adverted to in the Motion for Reconsideration of respondent Committees, referring to the non-existence of a "presumptive authorization" of an executive official, to mean that the "presumption" in favor of executive privilege "inclines heavily against executive secrecy and in favor of disclosure" is to distort the ruling in the Senate v. Ermita and make the same engage in self-contradiction.

Senate v. Ermita22 expounds on the constitutional

underpinning of the relationship between the Executive Department and the Legislative Department to explain why there should be no implied authorization or presumptive authorization to invoke executive privilege by the President’s subordinate officials, as follows:

When Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they are department heads. Only one executive official may be exempted from this power - the President on whom executive power is vested, hence, beyond the reach of Congress except through the power of impeachment. It is based on he being the highest official of the executive branch, and the due respect accorded to a co-equal branch of governments which is sanctioned by a long-standing custom. (Underscoring supplied)

Thus, if what is involved is the presumptive privilege of presidential communications when invoked by the President on a matter clearly within the domain of the Executive, the said presumption dictates that the same be recognized and be given preference or priority, in the absence of proof of a compelling or critical need for disclosure by the one assailing such presumption. Any construction to the contrary will render meaningless the presumption accorded by settled jurisprudence in favor of executive privilege. In fact, Senate v. Ermita reiterates jurisprudence citing "the considerations justifying a presumptive privilege for Presidential communications."23

II

There Are Factual and Legal Bases toHold that the Communications Elicited by theThree (3) Questions Are

Covered by Executive Privilege

Respondent Committees claim that the communications elicited by the three (3) questions are not covered by executive privilege because the elements of the presidential communications privilege are not present.

A. The power to enter into an executive agreement is a "quintessential and non-delegable presidential power."

First, respondent Committees contend that the power to secure a foreign loan does not relate to a "quintessential and non-delegable presidential power," because the Constitution does not vest it in the President alone, but also in the Monetary Board which is required to give its prior concurrence and to report to Congress.

This argument is unpersuasive.

The fact that a power is subject to the concurrence of another entity does not make such power less executive. "Quintessential" is defined as the most perfect embodiment of something, the concentrated essence of substance.24 On the other hand, "non-delegable" means that a power or duty cannot be delegated to another or, even if delegated, the responsibility remains with the obligor.25 The power to enter into an executive agreement is in essence an executive power. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence.26

Now, the fact that the President has to secure the prior concurrence of the Monetary Board, which shall submit to Congress a complete report of its decision before contracting or guaranteeing foreign loans, does not diminish the executive nature of the power.

The inviolate doctrine of separation of powers among the legislative, executive and judicial branches of government by no means prescribes absolute autonomy in the discharge by each branch of that part of the governmental power assigned to it by the sovereign people. There is the corollary doctrine of checks and balances, which has been carefully calibrated by the Constitution to temper the official acts of each of these three branches. Thus, by analogy, the fact that certain legislative acts require action from the President for their validity does not render such acts less legislative in nature. A good example is the power to pass a law. Article VI, Section 27 of the Constitution mandates that every bill passed by Congress shall, before it becomes a law, be presented to the President who shall approve or veto the same. The fact that the approval or vetoing of the bill is lodged with the President does not render the power to pass law executive in nature. This is because the power to pass law is generally a quintessential and non-delegable power of the Legislature. In the same vein, the executive power to enter or not to enter into a contract to secure foreign loans does not become less executive in nature because of conditions laid down in the Constitution. The final decision in the exercise of the said executive power is still lodged in the Office of the President.

B. The "doctrine of operational proximity" was laid down precisely to limit the scope of the presidential communications privilege but, in any case, it is not conclusive.

Second, respondent Committees also seek reconsideration of the application of the "doctrine of operational proximity" for the reason that "it maybe misconstrued to expand the scope of the presidential communications privilege to communications between those who are ‘operationally proximate’ to the President but who may have "no direct

communications with her."

It must be stressed that the doctrine of "operational proximity" was laid down in In re: Sealed Case27precisely to limit the scope of the presidential communications privilege. The U.S. court was aware of the dangers that a limitless extension of the privilege risks and, therefore, carefully cabined its reach by explicitly confining it to White House staff, and not to staffs of the agencies, and then only to White House staff that has "operational proximity" to direct presidential decision-making, thus:

We are aware that such an extension, unless carefully circumscribed to accomplish the purposes of the privilege, could pose a significant risk of expanding to a large swath of the executive branch a privilege that is bottomed on a recognition of the unique role of the President. In order to limit this risk, the presidential communications privilege should be construed as narrowly as is consistent with ensuring that the confidentiality of the President’s decision-making process is adequately protected. Not every person who plays a role in the development of presidential advice, no matter how remote and removed from the President, can qualify for the privilege. In particular, the privilege should not extend to staff outside the White House in executive branch agencies. Instead, the privilege should apply only to communications authored or solicited and received by those members of an immediate White House advisor’s staff who have broad and significant responsibility for investigation and formulating the advice to be given the President on the particular matter to which the communications relate. Only communications at that level are close enough to the President to be revelatory of his deliberations or to pose a risk to the candor of his advisers. See AAPS, 997 F.2d at 910 (it is "operational

proximity" to the President that matters in determining whether "[t]he President’s confidentiality interests" is implicated). (Emphasis supplied)

In the case at bar, the danger of expanding the privilege "to a large swath of the executive branch" (a fear apparently entertained by respondents) is absent because the official involved here is a member of the Cabinet, thus, properly within the term "advisor" of the President; in fact, her alter ego and a member of her official family. Nevertheless, in circumstances in which the official involved is far too remote, this Court also mentioned in the Decision the organizational test laid down in Judicial Watch, Inc. v. Department of Justice.28 This goes to show that the operational proximity test used in the Decision is not considered conclusive in every case. In determining which test to use, the main consideration is to limit the availability of executive privilege only to officials who stand proximate to the President, not only by reason of their function, but also by reason of their positions in the Executive’s organizational structure. Thus, respondent Committees’ fear that the scope of the privilege would be unnecessarily expanded with the use of the operational proximity test is unfounded.

C. The President’s claim of executive privilege is not merely based on a generalized interest; and in balancing respondent Committees’ and the President’s clashing interests, the Court did not disregard the 1987 Constitutional provisions on government transparency, accountability and disclosure of information.

Third, respondent Committees claim that the Court erred in upholding the President’s invocation, through the Executive Secretary, of executive privilege because (a) between respondent Committees’ specific and demonstrated need

and the President’s generalized interest in confidentiality, there is a need to strike the balance in favor of the former; and (b) in the balancing of interest, the Court disregarded the provisions of the 1987 Philippine Constitution on government transparency, accountability and disclosure of information, specifically, Article III, Section 7;29 Article II, Sections 2430 and 28;31 Article XI, Section 1;32 Article XVI, Section 10;33 Article VII, Section 20;34 and Article XII, Sections 9,35 21,36 and 22.37

It must be stressed that the President’s claim of executive privilege is not merely founded on her generalized interest in confidentiality. The Letter dated November 15, 2007 of Executive Secretary Ermita specified presidential communications privilege in relation to diplomatic and economic relations with another sovereign nation as the bases for the claim. Thus, the Letter stated:

The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the People’s Republic of China. Given the confidential nature in which this information were conveyed to the President, he cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect. (emphasis supplied)

Even in Senate v. Ermita, it was held that Congress must not require the Executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect. This is a matter of respect for a coordinate and co-equal department.

It is easy to discern the danger that goes with the disclosure

of the President’s communication with her advisor. The NBN Project involves a foreign country as a party to the agreement. It was actually a product of the meeting of minds between officials of the Philippines and China. Whatever the President says about the agreement - particularly while official negotiations are ongoing - are matters which China will surely view with particular interest. There is danger in such kind of exposure. It could adversely affect our diplomatic as well as economic relations with the People’s Republic of China. We reiterate the importance of secrecy in matters involving foreign negotiations as stated in United States v. Curtiss-Wright Export Corp., 38 thus:

The nature of foreign negotiations requires caution, and their success must often depend on secrecy, and even when brought to a conclusion, a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely impolitic, for this might have a pernicious influence on future negotiations or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate, the principle on which the body was formed confining it to a small number of members. To admit, then, a right in the House of Representatives to demand and to have as a matter of course all the papers respecting a negotiation with a foreign power would be to establish a dangerous precedent.

US jurisprudence clearly guards against the dangers of allowing Congress access to all papers relating to a negotiation with a foreign power. In this jurisdiction, the recent case of Akbayan Citizens Action Party, et al. v. Thomas G. Aquino, et al.39 upheld the privileged character of

diplomatic negotiations. In Akbayan, the Court stated:

Privileged character of diplomatic negotiations

The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing valid limitations on the right to information, the Court in Chavez v. PCGG held that "information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest." Even earlier, the same privilege was upheld in People’s Movement for Press Freedom (PMPF) v. Manglapus wherein the Court discussed the reasons for the privilege in more precise terms.

In PMPF v. Manglapus, the therein petitioners were seeking information from the President’s representatives on the state of the then on-going negotiations of the RP-US Military Bases Agreement. The Court denied the petition, stressing that "secrecy of negotiations with foreign countries is not violative of the constitutional provisions of freedom of speech or of the press nor of the freedom of access to information." The Resolution went on to state, thus:

The nature of diplomacy requires centralization of authority and expedition of decision which are inherent in executive action. Another essential characteristic of diplomacy is its confidential nature . Although much has been said about "open" and "secret" diplomacy, with disparagement of the latter, Secretaries of State Hughes and Stimson have clearly analyzed and justified the practice. In the words of Mr. Stimson:

"A complicated negotiation …cannot be carried through without many, many private talks and discussion, man

to man; many tentative suggestions and proposals. Delegates from other countries come and tell you in confidence of their troubles at home and of their differences with other countries and with other delegates; they tell you of what they would do under certain circumstances and would not do under other circumstances… If these reports… should become public… who would ever trust American Delegations in another conference? (United States Department of State, Press Releases, June 7, 1930, pp. 282-284)

x x x x

There is frequent criticism of the secrecy in which negotiation with foreign powers on nearly all subjects is concerned. This, it is claimed, is incompatible with the substance of democracy. As expressed by one writer, "It can be said that there is no more rigid system of silence anywhere in the world." (E.J. Young, Looking Behind the Censorship, J. B. Lipincott Co., 1938) President Wilson in starting his efforts for the conclusion of the World War declared that we must have "open covenants, openly arrived at." He quickly abandoned his thought.

No one who has studied the question believes that such a method of publicity is possible. In the moment that negotiations are started, pressure groups attempt to "muscle in." An ill-timed speech by one of the parties or a frank declaration of the concession which are exacted or offered on both sides would quickly lead to a widespread propaganda to block the negotiations. After a treaty has been drafted and its terms are fully published, there is ample opportunity for discussion before it is approved . (The New American Government and Its Works, James T. Young, 4th Edition, p. 194) (Emphasis

and underscoring supplied)

Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export Corp. that the President is the sole organ of the nation in its negotiations with foreign countries,viz:

"x x x In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great arguments of March 7, 1800, in the House of Representatives, "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations." Annals, 6th Cong., col. 613… (Emphasis supplied; underscoring in the original)

Considering that the information sought through the three (3) questions subject of this Petition involves the President’s dealings with a foreign nation, with more reason, this Court is wary of approving the view that Congress may peremptorily inquire into not only official, documented acts of the President but even her confidential and informal discussions with her close advisors on the pretext that said questions serve some vague legislative need. Regardless of who is in office, this Court can easily foresee unwanted consequences of subjecting a Chief Executive to unrestricted congressional inquiries done with increased frequency and great publicity. No Executive can effectively discharge constitutional functions in the face of intense and unchecked legislative incursion into the core of the President’s decision-making process, which inevitably would

involve her conversations with a member of her Cabinet.

With respect to respondent Committees’ invocation of constitutional prescriptions regarding the right of the people to information and public accountability and transparency, the Court finds nothing in these arguments to support respondent Committees’ case.

There is no debate as to the importance of the constitutional right of the people to information and the constitutional policies on public accountability and transparency. These are the twin postulates vital to the effective functioning of a democratic government. The citizenry can become prey to the whims and caprices of those to whom the power has been delegated if they are denied access to information. And the policies on public accountability and democratic government would certainly be mere empty words if access to such information of public concern is denied.

In the case at bar, this Court, in upholding executive privilege with respect to three (3) specific questions, did not in any way curb the public’s right to information or diminish the importance of public accountability and transparency.

This Court did not rule that the Senate has no power to investigate the NBN Project in aid of legislation. There is nothing in the assailed Decision that prohibits respondent Committees from inquiring into the NBN Project. They could continue the investigation and even call petitioner Neri to testify again. He himself has repeatedly expressed his willingness to do so. Our Decision merely excludes from the scope of respondents’ investigation the three (3) questions that elicit answers covered by executive privilege and rules that petitioner cannot be compelled to appear before respondents to answer the said questions. We have

discussed the reasons why these answers are covered by executive privilege. That there is a recognized public interest in the confidentiality of such information is a recognized principle in other democratic States. To put it simply, the right to information is not an absolute right.

Indeed, the constitutional provisions cited by respondent Committees do not espouse an absolute right to information. By their wording, the intention of the Framers to subject such right to the regulation of the law is unmistakable. The highlighted portions of the following provisions show the obvious limitations on the right to information, thus:

Article III, Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

Article II, Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. (Emphasis supplied)

In Chavez v. Presidential Commission on Good Government,40 it was stated that there are no specific laws prescribing the exact limitations within which the right may be exercised or the correlative state duty may be obliged. Nonetheless, it enumerated the recognized restrictions to such rights, among them: (1) national security matters, (2) trade secrets and banking transactions, (3) criminal matters, and (4) other confidential information. National security

matters include state secrets regarding military and diplomatic matters, as well as information on inter-government exchanges prior to the conclusion of treaties and executive agreements. It was further held that even where there is no need to protect such state secrets, they must be "examined in strict confidence and given scrupulous protection."

Incidentally, the right primarily involved here is the right of respondent Committees to obtain information allegedly in aid of legislation, not the people’s right to public information. This is the reason why we stressed in the assailed Decision the distinction between these two rights. As laid down in Senate v. Ermita, "the demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum issued by Congress" and "neither does the right to information grant a citizen the power to exact testimony from government officials." As pointed out, these rights belong to Congress, not to the individual citizen. It is worth mentioning at this juncture that the parties here are respondent Committees and petitioner Neri and that there was no prior request for information on the part of any individual citizen. This Court will not be swayed by attempts to blur the distinctions between the Legislature's right to information in a legitimate legislative inquiry and the public's right to information.

For clarity, it must be emphasized that the assailed Decision did not enjoin respondent Committees from inquiring into the NBN Project. All that is expected from them is to respect matters that are covered by executive privilege.

III.

Respondent Committees Failed to Show Thatthe Communications Elicited by the Three QuestionsAre

Critical to the Exercise of their Functions

In their Motion for Reconsideration, respondent Committees devote an unusually lengthy discussion on the purported legislative nature of their entire inquiry, as opposed to an oversight inquiry.

At the outset, it must be clarified that the Decision did not pass upon the nature of respondent Committees’ inquiry into the NBN Project. To reiterate, this Court recognizes respondent Committees’ power to investigate the NBN Project in aid of legislation. However, this Court cannot uphold the view that when a constitutionally guaranteed privilege or right is validly invoked by a witness in the course of a legislative investigation, the legislative purpose of respondent Committees’ questions can be sufficiently supported by the expedient of mentioning statutes and/or pending bills to which their inquiry as a whole may have relevance. The jurisprudential test laid down by this Court in past decisions on executive privilege is that the presumption of privilege can only be overturned by a showing of compelling need for disclosure of the information covered by executive privilege.

In the Decision, the majority held that "there is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority." In the Motion for Reconsideration, respondent Committees argue that the information elicited by the three (3) questions are necessary in the discharge of their legislative functions, among them, (a) to consider the three (3) pending Senate Bills, and (b) to curb graft and corruption.

We remain unpersuaded by respondents’ assertions.

In U.S. v. Nixon, the U.S. Court held that executive privilege is subject to balancing against other interests and it is necessary to resolve the competing interests in a manner that would preserve the essential functions of each branch. There, the Court weighed between presidential privilege and the legitimate claims of the judicial process. In giving more weight to the latter, the Court ruled that the President's generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.

The Nixon Court ruled that an absolute and unqualified privilege would stand in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions. The said Court further ratiocinated, through its ruling extensively quoted in the Honorable Chief Justice Puno's dissenting opinion, as follows:

"... this presumptive privilege must be considered in light of our historic commitment to the rule of law. This is nowhere more profoundly manifest than in our view that 'the twofold aim (of criminal justice) is that guild shall not escape or innocence suffer.' Berger v. United States, 295 U.S., at 88, 55 S.Ct., at 633. We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence.

To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.

xxx xxx xxx

The right to the production of all evidence at a criminal trial similarly has constitutional dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal trial the right 'to be confronted with the witness against him' and 'to have compulsory process for obtaining witnesses in his favor.' Moreover, the Fifth Amendment also guarantees that no person shall be deprived of liberty without due process of law. It is the manifest duty of the courts to vindicate those guarantees, and to accomplish that it is essential that all relevant and admissible evidence be produced.

In this case we must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of the President's responsibilities against the inroads of such a privilege on the fair administration of criminal justice. (emphasis supplied)

xxx xxx xxx

...the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President's acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant

evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. The President's broad interest in confidentiality of communication will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases.

We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial. (emphasis supplied)

In the case at bar, we are not confronted with a court’s need for facts in order to adjudge liability in a criminal case but rather with the Senate’s need for information in relation to its legislative functions. This leads us to consider once again just how critical is the subject information in the discharge of respondent Committees’ functions. The burden to show this is on the respondent Committees, since they seek to intrude into the sphere of competence of the President in order to gather information which, according to said respondents, would "aid" them in crafting legislation.

Senate Select Committee on Presidential Campaign Activities v. Nixon41 expounded on the nature of a legislative inquiry in aid of legislation in this wise:

The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on whether the

subpoenaed materials are critical to the performance of its legislative functions. There is a clear difference between Congress' legislative tasks and the responsibility of a grand jury, or any institution engaged in like functions. While fact-finding by a legislative committee is undeniably a part of its task, legislative judgments normally depend more on the predicted consequences of proposed legislative actions and their political acceptability, than on precise reconstruction of past events; Congress frequently legislates on the basis of conflicting information provided in its hearings. In contrast, the responsibility of the grand jury turns entirely on its ability to determine whether there is probable cause to believe that certain named individuals did or did not commit specific crimes. If, for example, as in Nixon v. Sirica, one of those crimes is perjury concerning the content of certain conversations, the grand jury's need for the most precise evidence, the exact text of oral statements recorded in their original form, is undeniable. We see no comparable need in the legislative process, at least not in the circumstances of this case. Indeed, whatever force there might once have been in the Committee's argument that the subpoenaed materials are necessary to its legislative judgments has been substantially undermined by subsequent events. (Emphasis supplied)

Clearly, the need for hard facts in crafting legislation cannot be equated with the compelling or demonstratively critical and specific need for facts which is so essential to the judicial power to adjudicate actual controversies. Also, the bare standard of "pertinency" set in Arnault cannot be lightly applied to the instant case, which unlike Arnault involves a conflict between two (2) separate, co-equal and coordinate Branches of the Government.

Whatever test we may apply, the starting point in resolving

the conflicting claims between the Executive and the Legislative Branches is the recognized existence of the presumptive presidential communications privilege. This is conceded even in the Dissenting Opinion of the Honorable Chief Justice Puno, which states:

A hard look at Senate v. Ermita ought to yield the conclusion that it bestowed a qualified presumption in favor of the Presidential communications privilege. As shown in the previous discussion, U.S. v. Nixon, as well as the other related Nixon cases Sirica and Senate Select Committee on Presidential Campaign Activities, et al., v. Nixon in the D.C. Court of Appeals, as well as subsequent cases all recognize that there is a presumptive privilege in favor of Presidential communications. The Almonte case quoted U.S. v. Nixon and recognized a presumption in favor of confidentiality of Presidential communications.

The presumption in favor of Presidential communications puts the burden on the respondent Senate Committees to overturn the presumption by demonstrating their specific need for the information to be elicited by the answers to the three (3) questions subject of this case, to enable them to craft legislation. Here, there is simply a generalized assertion that the information is pertinent to the exercise of the power to legislate and a broad and non-specific reference to pending Senate bills. It is not clear what matters relating to these bills could not be determined without the said information sought by the three (3) questions. As correctly pointed out by the Honorable Justice Dante O. Tinga in his Separate Concurring Opinion:

…If respondents are operating under the premise that the president and/or her executive officials have committed wrongdoings that need to be corrected or

prevented from recurring by remedial legislation, the answer to those three questions will not necessarily bolster or inhibit respondents from proceeding with such legislation. They could easily presume the worst of the president in enacting such legislation.

For sure, a factual basis for situations covered by bills is not critically needed before legislatives bodies can come up with relevant legislation unlike in the adjudication of cases by courts of law. Interestingly, during the Oral Argument before this Court, the counsel for respondent Committees impliedly admitted that the Senate could still come up with legislations even without petitioner answering the three (3) questions. In other words, the information being elicited is not so critical after all. Thus:

CHIEF JUSTICE PUNO

So can you tell the Court how critical are these questions to the lawmaking function of the Senate. For instance, question Number 1 whether the President followed up the NBN project. According to the other counsel this question has already been asked, is that correct?

ATTY. AGABIN

Well, the question has been asked but it was not answered, Your Honor.

CHIEF JUSTICE PUNO

Yes. But my question is how critical is this to the lawmaking function of the Senate?

ATTY. AGABIN

I believe it is critical, Your Honor.

CHIEF JUSTICE PUNO

Why?

ATTY. AGABIN

For instance, with respect to the proposed Bill of Senator Miriam Santiago, she would like to indorse a Bill to include Executive Agreements had been used as a device to the circumventing the Procurement Law.

CHIEF JUSTICE PUNO

But the question is just following it up.

ATTY. AGABIN

I believe that may be the initial question, Your Honor, because if we look at this problem in its factual setting as counsel for petitioner has observed, there are intimations of a bribery scandal involving high government officials.

CHIEF JUSTICE PUNO

Again, about the second question, were you dictated to prioritize this ZTE, is that critical to the lawmaking function of the Senate? Will it result to the failure of the Senate to cobble a Bill without this question?

ATTY. AGABIN

I think it is critical to lay the factual foundations for a proposed amendment to the Procurement Law, Your Honor, because the petitioner had already testified that he was

offered a P200 Million bribe, so if he was offered a P200 Million bribe it is possible that other government officials who had something to do with the approval of the contract would be offered the same amount of bribes.

CHIEF JUSTICE PUNO

Again, that is speculative.

ATTY. AGABIN

That is why they want to continue with the investigation, Your Honor.

CHIEF JUSTICE PUNO

How about the third question, whether the President said to go ahead and approve the project after being told about the alleged bribe. How critical is that to the lawmaking function of the Senate? And the question is may they craft a Bill a remedial law without forcing petitioner Neri to answer this question?

ATTY. AGABIN

Well, they can craft it, Your Honor, based on mere speculation. And sound legislation requires that a proposed Bill should have some basis in fact.42

The failure of the counsel for respondent Committees to pinpoint the specific need for the information sought or how the withholding of the information sought will hinder the accomplishment of their legislative purpose is very evident in the above oral exchanges. Due to the failure of the respondent Committees to successfully discharge this burden, the presumption in favor of confidentiality of

presidential communication stands. The implication of the said presumption, like any other, is to dispense with the burden of proof as to whether the disclosure will significantly impair the President’s performance of her function. Needless to state this is assumed, by virtue of the presumption.

Anent respondent Committees’ bewailing that they would have to "speculate" regarding the questions covered by the privilege, this does not evince a compelling need for the information sought. Indeed, Senate Select Committee on Presidential Campaign Activities v. Nixon43 held that while fact-finding by a legislative committee is undeniably a part of its task, legislative judgments normally depend more on the predicted consequences of proposed legislative actions and their political acceptability than on a precise reconstruction of past events. It added that, normally, Congress legislates on the basis of conflicting information provided in its hearings. We cannot subscribe to the respondent Committees’ self-defeating proposition that without the answers to the three (3) questions objected to as privileged, the distinguished members of the respondent Committees cannot intelligently craft legislation.

Anent the function to curb graft and corruption, it must be stressed that respondent Committees’ need for information in the exercise of this function is not as compelling as in instances when the purpose of the inquiry is legislative in nature. This is because curbing graft and corruption is merely an oversight function of Congress.44 And if this is the primary objective of respondent Committees in asking the three (3) questions covered by privilege, it may even contradict their claim that their purpose is legislative in nature and not oversight. In any event, whether or not investigating graft and corruption is a legislative or oversight function of Congress, respondent Committees’ investigation

cannot transgress bounds set by the Constitution.

In Bengzon, Jr. v. Senate Blue Ribbon Committee,45 this Court ruled:

The "allocation of constitutional boundaries" is a task that this Court must perform under the Constitution. Moreover, as held in a recent case, "the political question doctrine neither interposes an obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot abdicate that obligation mandated by the 1987 Constitution, although said provision by no means does away with the applicability of the principle in appropriate cases.46 (Emphasis supplied)

There, the Court further ratiocinated that "the contemplated inquiry by respondent Committee is not really ‘in aid of legislation’ because it is not related to a purpose within the jurisdiction of Congress, since the aim of the investigation is to find out whether or not the relatives of the President or Mr. Ricardo Lopa had violated Section 5 of R.A. No. 3019, the Anti-Graft and Corrupt Practices Act, a matter that appears more within the province of the courts rather than of the Legislature."47 (Emphasis and underscoring supplied)

The general thrust and the tenor of the three (3) questions is to trace the alleged bribery to the Office of the President.48

While it may be a worthy endeavor to investigate the potential culpability of high government officials, including the President, in a given government transaction, it is simply not a task for the Senate to perform. The role of the Legislature is to make laws, not to determine anyone’s guilt of a crime or wrongdoing. Our Constitution has not bestowed

upon the Legislature the latter role. Just as the Judiciary cannot legislate, neither can the Legislature adjudicate or prosecute.

Respondent Committees claim that they are conducting an inquiry in aid of legislation and a "search for truth," which in respondent Committees’ view appears to be equated with the search for persons responsible for "anomalies" in government contracts.

No matter how noble the intentions of respondent Committees are, they cannot assume the power reposed upon our prosecutorial bodies and courts. The determination of who is/are liable for a crime or illegal activity, the investigation of the role played by each official, the determination of who should be haled to court for prosecution and the task of coming up with conclusions and finding of facts regarding anomalies, especially the determination of criminal guilt, are not functions of the Senate. Congress is neither a law enforcement nor a trial agency. Moreover, it bears stressing that no inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress, i.e. legislation. Investigations conducted solely to gather incriminatory evidence and "punish" those investigated are indefensible. There is no Congressional power to expose for the sake of exposure.49 In this regard, the pronouncement in Barenblatt v. United States50 is instructive, thus:

Broad as it is, the power is not, however, without limitations. Since Congress may only investigate into the areas in which it may potentially legislate or appropriate, it cannot inquire into matters which are within the exclusive province of one of the other branches of the government. Lacking the judicial power given to the Judiciary, it cannot

inquire into matters that are exclusively the concern of the Judiciary. Neither can it supplant the Executive in what exclusively belongs to the Executive. (Emphasis supplied.)

At this juncture, it is important to stress that complaints relating to the NBN Project have already been filed against President Arroyo and other personalities before the Office of the Ombudsman. Under our Constitution, it is the Ombudsman who has the duty "to investigate any act or omission of any public official, employee, office or agency when such act or omission appears to be illegal, unjust, improper, or inefficient."51 The Office of the Ombudsman is the body properly equipped by the Constitution and our laws to preliminarily determine whether or not the allegations of anomaly are true and who are liable therefor. The same holds true for our courts upon which the Constitution reposes the duty to determine criminal guilt with finality. Indeed, the rules of procedure in the Office of the Ombudsman and the courts are well-defined and ensure that the constitutionally guaranteed rights of all persons, parties and witnesses alike, are protected and safeguarded.

Should respondent Committees uncover information related to a possible crime in the course of their investigation, they have the constitutional duty to refer the matter to the appropriate agency or branch of government. Thus, the Legislature’s need for information in an investigation of graft and corruption cannot be deemed compelling enough to pierce the confidentiality of information validly covered by executive privilege. As discussed above, the Legislature can still legislate on graft and corruption even without the information covered by the three (3) questions subject of the petition.

Corollarily, respondent Committees justify their rejection of petitioner’s claim of executive privilege on the ground that there is no privilege when the information sought might involve a crime or illegal activity, despite the absence of an administrative or judicial determination to that effect. Significantly, however, in Nixon v. Sirica,52 the showing required to overcome the presumption favoring confidentiality turned, not on the nature of the presidential conduct that the subpoenaed material might reveal, but, instead, on the nature and appropriateness of the function in the performance of which the material was sought, and the degree to which the material was necessary to its fulfillment.

Respondent Committees assert that Senate Select Committee on Presidential Campaign Activities v. Nixon does not apply to the case at bar because, unlike in the said case, no impeachment proceeding has been initiated at present. The Court is not persuaded. While it is true that no impeachment proceeding has been initiated, however, complaints relating to the NBN Project have already been filed against President Arroyo and other personalities before the Office of the Ombudsman. As the Court has said earlier, the prosecutorial and judicial arms of government are the bodies equipped and mandated by the Constitution and our laws to determine whether or not the allegations of anomaly in the NBN Project are true and, if so, who should be prosecuted and penalized for criminal conduct.

Legislative inquiries, unlike court proceedings, are not subject to the exacting standards of evidence essential to arrive at accurate factual findings to which to apply the law. Hence, Section 10 of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation provides that "technical rules of evidence applicable to judicial

proceedings which do not affect substantive rights need not be observed by the Committee." Court rules which prohibit leading, hypothetical, or repetitive questions or questions calling for a hearsay answer, to name a few, do not apply to a legislative inquiry. Every person, from the highest public official to the most ordinary citizen, has the right to be presumed innocent until proven guilty in proper proceedings by a competent court or body.

IV

Respondent Committees Committed GraveAbuse of Discretion in Issuing the Contempt Order

Respondent Committees insist that they did not commit grave abuse of discretion in issuing the contempt order because (1) there is no legitimate claim of executive privilege; (2) they did not violate the requirements laid down in Senate v. Ermita; (3) they issued the contempt order in accordance with their internal Rules; (4) they did not violate the requirement under Article VI, Section 21 of the Constitution requiring the publication of their Rules; and (5) their issuance of the contempt order is not arbitrary or precipitate.

We reaffirm our earlier ruling.

The legitimacy of the claim of executive privilege having been fully discussed in the preceding pages, we see no reason to discuss it once again.

Respondent Committees’ second argument rests on the view that the ruling in Senate v. Ermita, requiring invitations or subpoenas to contain the "possible needed statute which prompted the need for the inquiry" along with the "usual

indication of the subject of inquiry and the questions relative to and in furtherance thereof" is not provided for by the Constitution and is merely an obiter dictum.

On the contrary, the Court sees the rationale and necessity of compliance with these requirements.

An unconstrained congressional investigative power, like an unchecked Executive, generates its own abuses. Consequently, claims that the investigative power of Congress has been abused (or has the potential for abuse) have been raised many times.53 Constant exposure to congressional subpoena takes its toll on the ability of the Executive to function effectively. The requirements set forth in Senate v. Ermita are modest mechanisms that would not unduly limit Congress’ power. The legislative inquiry must be confined to permissible areas and thus, prevent the "roving commissions" referred to in the U.S. case, Kilbourn v. Thompson.54 Likewise, witnesses have their constitutional right to due process. They should be adequately informed what matters are to be covered by the inquiry. It will also allow them to prepare the pertinent information and documents. To our mind, these requirements concede too little political costs or burdens on the part of Congress when viewed vis-à-vis the immensity of its power of inquiry. The logic of these requirements is well articulated in the study conducted by William P. Marshall,55 to wit:

A second concern that might be addressed is that the current system allows committees to continually investigate the Executive without constraint. One process solution addressing this concern is to require each investigation be tied to a clearly stated purpose. At present, the charters of some congressional committees are so broad that virtually any matter involving the Executive can be construed to fall

within their province. Accordingly, investigations can proceed without articulation of specific need or purpose. A requirement for a more precise charge in order to begin an inquiry should immediately work to limit the initial scope of the investigation and should also serve to contain the investigation once it is instituted. Additionally, to the extent clear statements of rules cause legislatures to pause and seriously consider the constitutional implications of proposed courses of action in other areas, they would serve that goal in the context of congressional investigations as well.

The key to this reform is in its details. A system that allows a standing committee to simply articulate its reasons to investigate pro forma does no more than imposes minimal drafting burdens. Rather, the system must be designed in a manner that imposes actual burdens on the committee to articulate its need for investigation and allows for meaningful debate about the merits of proceeding with the investigation. (Emphasis supplied)

Clearly, petitioner’s request to be furnished an advance copy of questions is a reasonable demand that should have been granted by respondent Committees.

Unfortunately, the Subpoena Ad Testificandum dated November 13, 2007 made no specific reference to any pending Senate bill. It did not also inform petitioner of the questions to be asked. As it were, the subpoena merely commanded him to "testify on what he knows relative to the subject matter under inquiry."

Anent the third argument, respondent Committees contend that their Rules of Procedure Governing Inquiries in Aid of

Legislation (the "Rules") are beyond the reach of this Court. While it is true that this Court must refrain from reviewing the internal processes of Congress, as a co-equal branch of government, however, when a constitutional requirement exists, the Court has the duty to look into Congress’ compliance therewith. We cannot turn a blind eye to possible violations of the Constitution simply out of courtesy. In this regard, the pronouncement in Arroyo v. De Venecia56 is enlightening, thus:

"Cases both here and abroad, in varying forms of expression, all deny to the courts the power to inquire into allegations that, in enacting a law, a House of Congress failed to comply with its own rules, in the absence of showing that there was a violation of a constitutional provision or the rights of private individuals.

United States v. Ballin, Joseph & Co., the rule was stated thus: ‘The Constitution empowers each House to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained."

In the present case, the Court’s exercise of its power of judicial review is warranted because there appears to be a clear abuse of the power of contempt on the part of respondent Committees. Section 18 of the Rules provides that:

"The Committee, by a vote of majority of all its members, may punish for contempt any witness before it who disobey any order of the Committee or refuses to be sworn or to testify or to answer proper questions by the Committee or

any of its members." (Emphasis supplied)

In the assailed Decision, we said that there is a cloud of doubt as to the validity of the contempt order because during the deliberation of the three (3) respondent Committees, only seven (7) Senators were present. This number could hardly fulfill the majority requirement needed by respondent Committee on Accountability of Public Officers and Investigations which has a membership of seventeen (17) Senators and respondent Committee on National Defense and Security which has a membership of eighteen (18) Senators. With respect to respondent Committee on Trade and Commerce which has a membership of nine (9) Senators, only three (3) members were present.57 These facts prompted us to quote in the Decision the exchanges between Senators Alan Peter Cayetano and Aquilino Pimentel, Jr. whereby the former raised the issue of lack of the required majority to deliberate and vote on the contempt order.

When asked about such voting during the March 4, 2008 hearing before this Court, Senator Francis Pangilinan stated that any defect in the committee voting had been cured because two-thirds of the Senators effectively signed for the Senate in plenary session.58

Obviously the deliberation of the respondent Committees that led to the issuance of the contempt order is flawed. Instead of being submitted to a full debate by all the members of the respondent Committees, the contempt order was prepared and thereafter presented to the other members for signing. As a result, the contempt order which was issued on January 30, 2008 was not a faithful representation of the proceedings that took place on said date. Records clearly show that not all of those who signed

the contempt order were present during the January 30, 2008 deliberation when the matter was taken up.

Section 21, Article VI of the Constitution states that:

The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of person appearing in or affected by such inquiries shall be respected. (Emphasis supplied)

All the limitations embodied in the foregoing provision form part of the witness’ settled expectation. If the limitations are not observed, the witness’ settled expectation is shattered. Here, how could there be a majority vote when the members in attendance are not enough to arrive at such majority? Petitioner has the right to expect that he can be cited in contempt only through a majority vote in a proceeding in which the matter has been fully deliberated upon. There is a greater measure of protection for the witness when the concerns and objections of the members are fully articulated in such proceeding. We do not believe that respondent Committees have the discretion to set aside their rules anytime they wish. This is especially true here where what is involved is the contempt power. It must be stressed that the Rules are not promulgated for their benefit. More than anybody else, it is the witness who has the highest stake in the proper observance of the Rules.

Having touched the subject of the Rules, we now proceed to respondent Committees’ fourth argument. Respondent Committees argue that the Senate does not have to publish its Rules because the same was published in 1995 and in 2006. Further, they claim that the Senate is a continuing body; thus, it is not required to republish the Rules, unless

the same is repealed or amended.

On the nature of the Senate as a "continuing body," this Court sees fit to issue a clarification. Certainly, there is no debate that the Senate as an institution is "continuing", as it is not dissolved as an entity with each national election or change in the composition of its members. However, in the conduct of its day-to-day business the Senate of each Congress acts separately and independently of the Senate of the Congress before it. The Rules of the Senate itself confirms this when it states:

RULE XLIVUNFINISHED BUSINESS

SEC. 123. Unfinished business at the end of the session shall be taken up at the next session in the same status.

All pending matters and proceedings shall terminate upon the expiration of one (1) Congress, but may be taken by the succeeding Congress as if present for the first time. (emphasis supplied)

Undeniably from the foregoing, all pending matters and proceedings, i.e. unpassed bills and even legislative investigations, of the Senate of a particular Congress are considered terminated upon the expiration of that Congress and it is merely optional on the Senate of the succeeding Congress to take up such unfinished matters, not in the same status, but as if presented for the first time. The logic and practicality of such a rule is readily apparent considering that the Senate of the succeeding Congress (which will typically have a different composition as that of the previous Congress) should not be bound by the acts and deliberations of the Senate of which they had no part. If the Senate is a continuing body even with respect to the conduct

of its business, then pending matters will not be deemed terminated with the expiration of one Congress but will, as a matter of course, continue into the next Congress with the same status.

This dichotomy of the continuity of the Senate as an institution and of the opposite nature of the conduct of its business is reflected in its Rules. The Rules of the Senate (i.e. the Senate’s main rules of procedure) states:

RULE LIAMENDMENTS TO, OR REVISIONS OF, THE RULES

SEC. 136. At the start of each session in which the Senators elected in the preceding elections shall begin their term of office, the President may endorse the Rules to the appropriate committee for amendment or revision.

The Rules may also be amended by means of a motion which should be presented at least one day before its consideration, and the vote of the majority of the Senators present in the session shall be required for its approval. (emphasis supplied)

RULE LIIDATE OF TAKING EFFECT

SEC. 137. These Rules shall take effect on the date of their adoption and shall remain in force until they are amended or repealed. (emphasis supplied)

Section 136 of the Senate Rules quoted above takes into account the new composition of the Senate after an election and the possibility of the amendment or revision of the Rules at the start of each session in which the newly elected Senators shall begin their term.

However, it is evident that the Senate has determined that its main rules are intended to be valid from the date of their adoption until they are amended or repealed. Such language is conspicuously absent from the Rules. The Rules simply state "(t)hese Rules shall take effect seven (7) days after publication in two (2) newspapers of general circulation."59

The latter does not explicitly provide for the continued effectivity of such rules until they are amended or repealed. In view of the difference in the language of the two sets of Senate rules, it cannot be presumed that the Rules (on legislative inquiries) would continue into the next Congress. The Senate of the next Congress may easily adopt different rules for its legislative inquiries which come within the rule on unfinished business.

The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducted in accordance with the duly published rules of procedure is categorical. It is incumbent upon the Senate to publish the rules for its legislative inquiries in each Congress or otherwise make the published rules clearly state that the same shall be effective in subsequent Congresses or until they are amended or repealed to sufficiently put public on notice.

If it was the intention of the Senate for its present rules on legislative inquiries to be effective even in the next Congress, it could have easily adopted the same language it had used in its main rules regarding effectivity.

Lest the Court be misconstrued, it should likewise be stressed that not all orders issued or proceedings conducted pursuant to the subject Rules are null and void. Only those that result in violation of the rights of witnesses should be considered null and void, considering that the rationale for the publication is to protect the rights of witnesses as

expressed in Section 21, Article VI of the Constitution. Sans such violation, orders and proceedings are considered valid and effective.

Respondent Committees’ last argument is that their issuance of the contempt order is not precipitate or arbitrary. Taking into account the totality of circumstances, we find no merit in their argument.

As we have stressed before, petitioner is not an unwilling witness, and contrary to the assertion of respondent Committees, petitioner did not assume that they no longer had any other questions for him. He repeatedly manifested his willingness to attend subsequent hearings and respond to new matters. His only request was that he be furnished a copy of the new questions in advance to enable him to adequately prepare as a resource person. He did not attend the November 20, 2007 hearing because Executive Secretary Ermita requested respondent Committees to dispense with his testimony on the ground of executive privilege. Note that petitioner is an executive official under the direct control and supervision of the Chief Executive. Why punish petitioner for contempt when he was merely directed by his superior? Besides, save for the three (3) questions, he was very cooperative during the September 26, 2007 hearing.

On the part of respondent Committees, this Court observes their haste and impatience. Instead of ruling on Executive Secretary Ermita’s claim of executive privilege, they curtly dismissed it as unsatisfactory and ordered the arrest of petitioner. They could have informed petitioner of their ruling and given him time to decide whether to accede or file a motion for reconsideration. After all, he is not just an ordinary witness; he is a high- ranking official in a co-equal branch of

government. He is an alter ego of the President. The same haste and impatience marked the issuance of the contempt order, despite the absence of the majority of the members of the respondent Committees, and their subsequent disregard of petitioner’s motion for reconsideration alleging the pendency of his petition for certiorari before this Court.

On a concluding note, we are not unmindful of the fact that the Executive and the Legislature are political branches of government. In a free and democratic society, the interests of these branches inevitably clash, but each must treat the other with official courtesy and respect. This Court wholeheartedly concurs with the proposition that it is imperative for the continued health of our democratic institutions that we preserve the constitutionally mandated checks and balances among the different branches of government.

In the present case, it is respondent Committees’ contention that their determination on the validity of executive privilege should be binding on the Executive and the Courts. It is their assertion that their internal procedures and deliberations cannot be inquired into by this Court supposedly in accordance with the principle of respect between co-equal branches of government. Interestingly, it is a courtesy that they appear to be unwilling to extend to the Executive (on the matter of executive privilege) or this Court (on the matter of judicial review). It moves this Court to wonder: In respondent Committees’ paradigm of checks and balances, what are the checks to the Legislature’s all-encompassing, awesome power of investigation? It is a power, like any other, that is susceptible to grave abuse.

While this Court finds laudable the respondent Committees’ well-intentioned efforts to ferret out corruption, even in the

highest echelons of government, such lofty intentions do not validate or accord to Congress powers denied to it by the Constitution and granted instead to the other branches of government.

There is no question that any story of government malfeasance deserves an inquiry into its veracity. As respondent Committees contend, this is founded on the constitutional command of transparency and public accountability. The recent clamor for a "search for truth" by the general public, the religious community and the academe is an indication of a concerned citizenry, a nation that demands an accounting of an entrusted power. However, the best venue for this noble undertaking is not in the political branches of government. The customary partisanship and the absence of generally accepted rules on evidence are too great an obstacle in arriving at the truth or achieving justice that meets the test of the constitutional guarantee of due process of law. We believe the people deserve a more exacting "search for truth" than the process here in question, if that is its objective.

WHEREFORE, respondent Committees’ Motion for Reconsideration dated April 8, 2008 is hereby DENIED.

SO ORDERED.

Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, Tinga, Chico-Nazario, Velasco, Jr., Nachura, Reyes, Brion, JJ., concur.

Dissenting Opinion - C.J. PunoSeparate Opinion on the Motion for Reconsideration - J. QuisumbingSeparate Dissenting Opinion - J. AzcunaSeparate Opinion - J. Reyes

Footnotes

EN BANC   

REGHIS M. ROMERO II, G.R. No. 174105EDMOND Q. SESE,LEOPOLDO T. SANCHEZ, Present:REGHIS M. ROMERO III,MICHAEL L. ROMERO, PUNO, C.J.,NATHANIEL L. ROMERO, QUISUMBING,and JEROME R. CANLAS, YNARES-SANTIAGO,

Petitioners, CARPIO,AUSTRIA-MARTINEZ,CORONA,CARPIO MORALES,- versus - TINGA,CHICO-NAZARIO,VELASCO, JR.,

NACHURA,LEONARDO-DE CASTRO,SENATOR JINGGOY E. ESTRADA BRION, andand SENATE COMMITTEE ON PERALTA, JJ.LABOR, EMPLOYMENTAND HUMAN RESOURCES Promulgated:DEVELOPMENT,Respondents. April 2, 2009x------------------------------------------------------------------

-----------------------x 

D E C I S I O N 

VELASCO, JR., J.:  At issue once again is Section 21, Article VI of the 1987 Constitution which provides: 

 The Senate or the House of Representatives

or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected.

  

The Case 

This is a petition for prohibition with application for temporary restraining order (TRO) and preliminary injunction under Rule 65, assailing the constitutionality of the invitations and other compulsory processes issued by the Senate Committee on Labor, Employment, and Human Resources Development (Committee) in connection with its investigation on the investment of Overseas Workers Welfare Administration (OWWA) funds in the Smokey Mountain project.

 The Facts

 On August 15, 2006, petitioner Reghis Romero II, as owner of R-II Builders, Inc., received from the Committee an invitation,[1] signed by the Legislative Committee Secretary, which pertinently reads as follows: 

Dear Mr. Romero: Pursuant to P.S. Resolution No. 537, entitled: RESOLUTION DIRECTING THE LABOR COMMITTEE TO INVESTIGATE, IN AID OF LEGISLATION, THE LIABILITY FOR PLUNDER OF THE FORMER PRESIDENT RAMOS AND OTHERS, FOR THE ILLEGAL INVESTMENT OF OWWA FUNDS IN THE SMOKEY MOUNTAIN PROJECT, CAUSING A LOSS TO OWWA OF P550.86 MILLION and P.S. Resolution No. 543, entitled: RESOLUTION DIRECTING THE COMMITTEE ON LABOR AND EMPLOYMENT, IN ITS ONGOING INQUIRY IN AID OF LEGISLATION, ON THE ALLEGED OWWA LOSS OF P480 MILLION TO FOCUS ON THE CULPABILITY OF THEN PRESIDENT FIDEL RAMOS, THEN OWWA ADMINISTRATOR WILHELM SORIANO, AND R-II BUILDERS OWNER REGHIS ROMERO II, x x x the Committee on Labor, Employment and Human Resources Development chaired by Sen. Jinggoy Ejercito Estrada will conduct a public hearing at 1:00 p.m. on the 23rd day of August 2006 at the Sen.

G.T. Pecson Room, 2nd floor, Senate of the Philippines, Pasay City.

The inquiry/investigation is specifically intended to aid the Senate in the review and possible amendments to the pertinent provisions of R.A. 8042, the Migrant Workers Act and to craft a much needed legislation relative to the stated subject matter and purpose of the aforementioned Resolutions. By virtue of the power vested in Congress by Section 21, Article VI of 1987 Constitution regarding inquiries in aid of legislation, may we have the privilege of inviting you to the said hearing to shed light on any matter, within your knowledge and competence, covered by the subject matter and purpose of the inquiry. Rest assured that your rights, when properly invoked and not unfounded, will be duly respected. (Emphasis in the original.)  

In his letter-reply[2] dated August 18, 2006, petitioner Romero II requested to be excused from appearing and testifying before the Committee at its scheduled hearings of the subject matter and purpose of Philippine Senate (PS) Resolution Nos. 537 and 543. He predicated his request on grounds he would later substantially reiterate in this petition for prohibition. 

On August 28, 2006, the Committee sent petitioner Romero II a letter informing him that his request, being unmeritorious, was denied.[3] On the

same date, invitations were sent to each of the other six petitioners, then members of the Board of Directors of R-II Builders, Inc., requesting them to attend the September 4, 2006 Committee hearing. The following day, Senator Jinggoy Estrada, as Chairperson of the Committee, caused the service of a subpoena ad testificandum[4] on petitioner Romero II directing him to appear and testify before the Committee at its hearing on September 4, 2006 relative to the aforesaid Senate resolutions. The Committer later issued separate subpoenas[5] to other petitioners, albeit for a different hearing date. On August 30, 2006, petitioners filed the instant petition, docketed as G.R. No. 174105, seeking to bar the Committee from continuing with its inquiry and to enjoin it from compelling petitioners to appear before it pursuant to the invitations thus issued. Failing to secure the desired TRO sought in the petition, petitioner Romero II appeared at the September 4, 2006 Committee investigation. 

Two days after, petitioner Romero II filed a Manifestation with Urgent Plea for a TRO[6] alleging, among others, that: (1) he answered questions concerning the investments of OWWA funds in the Smokey Mountain project and how much of OWWAs original investment had already been paid; (2) when

Senator Estrada called on Atty. Francisco I. Chavez, as resource person, the latter spoke of the facts and issues he raised with the Court in Chavez v. National Housing Authority,[7] none of which were related to the subject of the inquiry; and (3) when Senator Estrada adjourned the investigation, he asked petitioners Romero II and Canlas to return at the resumption of the investigation.

 The manifestation was followed by the filing on

September 19, 2006 of another urgent motion for a TRO in which petitioners imputed to the Committee the intention to harass them as, except for petitioner Romero II, none of them had even been mentioned in relation to the subject of the investigation.

 Meanwhile, respondents, in compliance with our

September 5, 2006 Resolution that ordered them to submit a comment on the original plea for a TRO, interposed an opposition,[8] observing that the Senates motives in calling for an investigation in aid of legislation were a political question. They also averred that the pendency of Chavez is not sufficient ground to divest the respondents of their jurisdiction to conduct an inquiry into the matters alleged in the petition.

 In this petition, petitioners in gist claim that: (1)

the subject matter of the investigation is sub judice owing to the pendency of the Chavez petition; (2) since the investigation has been intended to ascertain

petitioners criminal liability for plunder, it is not in aid of legislation; (3) the inquiry compelled them to appear and testify in violation of their rights against self-incrimination; and (4) unless the Court immediately issues a TRO, some or all of petitioners would be in danger of being arrested, detained, and forced to give testimony against their will, before the Court could resolve the issues raised in G.R. No. 164527.

 In their Comment dated October 17, 2006,[9]

respondents made a distinction between the issues raised in Chavez and the subject matter of the Senate resolutions, nixing the notion of sub judice that petitioners raised at every possible turn. Respondents averred that the subject matter of the investigation focused on the alleged dissipation of OWWA funds and the purpose of the probe was to aid the Senate determine the propriety of amending Republic Act No. 8042 or The Migrant Workers Act of 1995 and enacting laws to protect OWWA funds in the future. They likewise raised the following main arguments: (1) the proposed resolutions were a proper subject of legislative inquiry; and (2) petitioners right against self-incrimination was well-protected and could be invoked when incriminating questions were propounded.

 On December 28, 2006, petitioners filed their

Reply[10] reiterating the arguments stated in their petition, first and foremost of which is: Whether or not

the subject matter of the Committees inquiry is sub judice. The Courts Ruling The Court resolves to dismiss the instant petition. 

The Subject Matter of the Senate Inquiry Is no Longer Sub Judice

 Petitioners contend that the subject matter of the legislative inquiry is sub judice in view of the Chavez petition.

  The sub judice rule restricts comments and

disclosures pertaining to judicial proceedings to avoid prejudging the issue, influencing the court, or obstructing the administration of justice. A violation of the sub judice rule may render one liable for indirect contempt under Sec. 3(d), Rule 71 of the Rules of Court.[11] The rationale for the rule adverted to is set out in Nestle Philippines v. Sanchez:

[I]t is a traditional conviction of civilized society everywhere that courts and juries, in the decision of issues of fact and law should be immune from every extraneous influence; that facts should be decided upon evidence produced in court; and that the determination of such facts should be uninfluenced by bias, prejudice or sympathies.[12]

  

Chavez, assuming for argument that it involves issues subject of the respondent Committees assailed investigation, is no longer sub judice or before a court or judge for consideration.[13] For by an en banc Resolution dated July 1, 2008, the Court, in G.R. No. 164527, denied with finality the motion of Chavez, as the petitioner in Chavez, for reconsideration of the Decision of the Court dated August 15, 2007. In fine, it will not avail petitioners any to invoke the sub judice effect of Chavez and resist, on that ground, the assailed congressional invitations and subpoenas. The sub judice issue has been rendered moot and academic by the supervening issuance of the en banc Resolution of July 1, 2008 in G.R. No. 164527. An issue or a case becomes moot and academic when it ceases to present a justiciable controversy, so that a determination of the issue would be without practical use and value. In such cases, there is no actual substantial relief to which the petitioner would be entitled and which would be negated by the dismissal of the petition.[14] Courts decline jurisdiction over such cases or dismiss them on the ground of mootness, save in certain exceptional instances,[15] none of which, however, obtains under the premises. Thus, there is no more legal obstacleon the ground of sub judice, assuming it is invocableto the continuation

of the Committees investigation challenged in this proceeding. 

At any rate, even assuming hypothetically that Chavez is still pending final adjudication by the Court, still, such circumstance would not bar the continuance of the committee investigation. What we said in Sabio v. Gordon suggests as much:

 The same directors and officers contend that

the Senate is barred from inquiring into the same issues being litigated before the Court of Appeals and the Sandiganbayan. Suffice it to state that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation provide that the filing or pendency of any prosecution or administrative action should not stop or abate any inquiry to carry out a legislative purpose.[16]

  

A legislative investigation in aid of legislation and court proceedings has different purposes. On one hand, courts conduct hearings or like adjudicative procedures to settle, through the application of a law, actual controversies arising between adverse litigants and involving demandable rights. On the other hand, inquiries in aid of legislation are, inter alia, undertaken as tools to enable the legislative body to gather information and, thus, legislate wisely and effectively;[17] and to determine whether there is a need to improve existing laws or enact new or remedial legislation,[18]

albeit the inquiry need not result in any potential legislation. On-going judicial proceedings do not preclude congressional hearings in aid of legislation. Standard Chartered Bank (Philippine Branch) v. Senate Committee on Banks, Financial Institutions and Currencies (Standard Chartered Bank) provides the following reason:

 [T]he mere filing of a criminal or an

administrative complaint before a court or quasi-judicial body should not automatically bar the conduct of legislative investigation. Otherwise, it would be extremely easy to subvert any intended inquiry by Congress through the convenient ploy of instituting a criminal or an administrative complaint. Surely, the exercise of sovereign legislative authority, of which the power of legislative inquiry is an essential component, cannot be made subordinate to a criminal or administrative investigation.

 As succinctly stated in x x x Arnault v.

Nazareno 

[T]he power of inquirywith process to enforce itis an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite informationwhich

is not infrequently truerecourse must be had to others who possess it.[19]  

While Sabio and Standard Chartered Bank advert only to pending criminal and administrative cases before lower courts as not posing a bar to the continuation of a legislative inquiry, there is no rhyme or reason that these cases doctrinal pronouncement and their rationale cannot be extended to appealed cases and special civil actions awaiting final disposition before this Court.

 The foregoing consideration is not all. The denial

of the instant recourse is still indicated for another compelling reason. As may be noted, PS Resolution Nos. 537 and 543 were passed in 2006 and the letter-invitations and subpoenas directing the petitioners to appear and testify in connection with the twin resolutions were sent out in the month of August 2006 or in the past Congress. On the postulate that the Senate of each Congress acts separately and independently of the Senate before and after it, the aforesaid invitations and subpoenas are considered functos oficio and the related legislative inquiry conducted is, for all intents and purposes, terminated. In this regard, the Court draws attention to its pronouncements embodied in its Resolution of September 4, 2008 in G.R. No. 180643 entitled Neri v. Senate Committee on Accountability of Public Officers and Investigations:

 

Certainly, x x x the Senate as an institution is continuing, as it is not dissolved as an entity with each national election or change in the composition of its members. However, in the conduct of its day-to-day business, the Senate of each Congress acts separately and independently of the Senate before it. The Rules of the Senate itself confirms this when it states: 

x x x x 

SEC. 123. Unfinished business at the end of the session shall be taken up at the next session in the same status. All pending matters and proceedings shall terminate upon the expiration of one (1) Congress, but may be taken by the succeeding Congress as if present[ed] for the first time.

 Undeniably from the foregoing, all pending

matters and proceedings, i.e., unpassed bills and even legislative investigations, of the Senate of a particular Congress are considered terminated upon the expiration of that Congress and it is merely optional on the Senate of the succeeding Congress to take up such unfinished matters, not in the same status, but as if presented for the first time. The logic and practicality of such rule is readily apparent considering that the Senate of the succeeding Congress (which will typically have a different composition as that of the previous Congress) should not be bound by the acts and

deliberations of the Senate of which they had no part. x x x (Emphasis added.) Following the lessons of Neri, as reiterated in

Garcillano v. The House of Representatives Committees on Public Information, Public Order and Safety, et al.,[20] it can very well be stated that the termination of the assailed investigations has veritably mooted the instant petition. This disposition becomes all the more impeccable, considering that the Senate of the present Congress has not, per available records, opted to take up anew, as an unfinished matter, its inquiry into the investment of OWWA funds in the Smokey Mountain project.

 With the foregoing disquisition, the Court need

not belabor the other issues raised in this recourse. Suffice it to state that when the Committee issued invitations and subpoenas to petitioners to appear before it in connection with its investigation of the aforementioned investments, it did so pursuant to its authority to conduct inquiries in aid of legislation. This is clearly provided in Art. VI, Sec. 21 of the Constitution, which was quoted at the outset. And the Court has no authority to prohibit a Senate committee from requiring persons to appear and testify before it in connection with an inquiry in aid of legislation in accordance with its duly published rules of procedure.[21] Sabio emphasizes the importance of the duty of

those subpoenaed to appear before the legislature, even if incidentally incriminating questions are expected to be asked:

 Anent the right against self-incrimination, it

must be emphasized that [this right may be] invoked by the said directors and officers of Philcomsat x x x only when the incriminating question is being asked, since they have no way of knowing in  advance the nature or effect of the questions to be asked of them.  That this right may possibly be violated or abused is no ground for denying respondent Senate Committees their power of inquiry.  The consolation is that when this power is abused, such issue may be presented before the courts.

 x x x x Let it be stressed at this point that so long as

the constitutional rights of witnesses x x x will be respected by respondent Senate Committees, it [is] their duty to cooperate with them in their efforts to obtain the facts needed for intelligent legislative action. The unremitting obligation of every citizen is to respond to subpoenae, to respect the dignity of the Congress and its Committees, and to testify fully with respect to matters within the realm of proper investigation.[22] (Emphasis supplied.)

  As a matter of long and sound practice, the Court refrains from touching on the issue of constitutionality

except when it is unavoidable and is the very lis mota[23] of the controversy. So it must be here. Indeed, the matter of the constitutionality of the assailed Committee invitations and subpoenas issued vis--vis the investigation conducted pursuant to PS Resolution Nos. 537 and 543 has ceased to be a justiciable controversy, having been rendered moot and academic by supervening events heretofore indicated. In short, there is no more investigation to be continued by virtue of said resolutions; there is no more investigation the constitutionality of which is subject to a challenge. 

WHEREFORE, the petition is DENIED. No pronouncement as to costs. SO ORDERED. 

PRESBITERO J. VELASCO, JR.

Associate Justice

      WE CONCUR:

  

 REYNATO S. PUNO

Chief Justice 

   LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGOAssociate Justice Associate Justice    ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZAssociate Justice Associate Justice

   RENATO C. CORONA CONCHITA CARPIO MORALESAssociate Justice Associate Justice   

 DANTE O. TINGA MINITA V. CHICO-NAZARIOAssociate Justice Associate Justice    ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE CASTROAssociate Justice Associate Justice    ARTURO D. BRION DIOSDADO M. PERALTAAssociate Justice Associate Justice

         

C E R T I F I C A T I O N Pursuant to Section 13, Article VIII of the Constitution,

it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.    REYNATO S. PUNOChief Justice

EN BANC

[G.R. No. 163756. January 26, 2005]

GEORGIDI B. AGGABAO, petitioner, vs. THE COMMISSION ON ELECTIONS, the PROVINCIAL BOARD of CANVASSERS of ISABELA, and ANTHONY MIRANDA, respondents.

D E C I S I O NYNARES-SANTIAGO, J.:

This Petition for Certiorari[1] seeks to annul and set aside as having been issued with grave abuse of discretion Resolution No. 7233 of the COMELEC En Banc and the proclamation of private respondent Anthony Miranda as Congressman for the 4th District of Isabela.[2]

Petitioner Georgidi B. Aggabao and private respondent Anthony Miranda were rival congressional candidates for the

4th District of Isabela during the May 10, 2004 elections. During the canvassing of the certificates of canvass of votes (COCV) for the municipalities of Cordon and San Agustin, Miranda moved for the exclusion of the 1st copy of the COCV on grounds that it was tampered with; prepared under duress; differed from other authentic copies and contained manifest errors.[3]

Aggabao objected arguing that the grounds raised by Miranda are proper only for a pre-proclamation controversy which is not allowed in elections for Members of the House of Representatives.[4]

On May 22, 2004, the reconstituted Provincial Board of Canvassers (PBC) excluded from canvass the contested COCVs and used instead the 4th and 7th copies of the COCVs.[5] Based on the results, Miranda garnered the highest number of votes for the position of Congressman.

On appeal with the COMELEC,[6] petitioner asserted that the PBC acted without jurisdiction[7] when it heard Mirandas Petition for Exclusion. Even assuming that the PBC had jurisdiction over the petition, it still erred in excluding the contested COCVs as they appeared regular and properly authenticated.[8]

On June 6, 2004, private respondent filed a Very Urgent Motion for Proclamation[9] which was opposed[10] by petitioner who contended that the pendency of his appeal with the COMELEC Second Division is a bar to Mirandas proclamation.

In a Memorandum dated June 8, 2004, Commissioner Mehol K. Sadain, commissioner in-charge for Regions II and III, approved the proclamation of the remaining winning candidates for the province of Isabela.[11]

On June 9, 2004, the COMELEC En Banc issued

Resolution No. 7233 likewise directing the proclamation of the remaining winning candidates in Isabela.[12] On the same day, petitioner filed with the COMELEC an Urgent Motion to Set Aside the Notice of Proclamation with Prayer for the Issuance of a Temporary Restraining Order.[13]

On June 14, 2004, Miranda was proclaimed as the duly elected Congressman for the 4th District of Isabela.[14]

Two days after the proclamation, Aggabao filed this petition assailing Resolution No. 7233. He claimed that the COMELEC En Banc acted without jurisdiction when it ordered Mirandas proclamation considering that the Second Division has not yet resolved the appeal.

In his Comment,[15] Miranda moved for the dismissal of the petition considering that the issue raised by Aggabao is best addressed to the House of Representatives Electoral Tribunal (HRET).[16]

On August 27, 2004, the petitioner filed a Consolidated Motion for Early Resolution; Manifestation that the COMELEC Second Division Issued a Resolution Sustaining the Appeal of the Petitioner; and Reply to the Comment.[17]

He manifested that on August 16, 2004, the COMELEC Second Division gave due course to his pending appeal.[18]

At the same time, he bewailed the failure of the COMELEC Second Division to annul the proclamation.[19]

The basic issue for resolution is whether we can take cognizance of this petition.

Certiorari as a special civil action can be availed of only if there is concurrence of the essential requisites, to wit: (a) the tribunal, board or officer exercising judicial functions has acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction, and (b) there is no appeal, nor any plain, speedy and adequate remedy in

the ordinary course of law for the purpose of annulling or modifying the proceeding. There must be capricious, arbitrary and whimsical exercise of power for it to prosper.[20]

Article VI, Section 17 of the 1987 Constitution provides:

Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organization registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman.

In Pangilinan v. Commission on Elections[21] we ruled that:

The Senate and the House of Representatives now have their respective Electoral Tribunals which are the sole judge of all contests relating to the election, returns, and qualifications of their respective Members, thereby divesting the Commission on Elections of its jurisdiction under the 1973 Constitution over election cases pertaining to the election of the Members of the Batasang Pambansa (Congress). It follows that the COMELEC is now bereft of jurisdiction to hear and decide pre-proclamation controversies against members of the House of Representatives as well as of the Senate.

The HRET has sole and exclusive jurisdiction over all contests relative to the election, returns, and qualifications of members of the House of Representatives. Thus, once a

winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, COMELECs jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRETs own jurisdiction begins.[22]

It is undisputed that Miranda has already been proclaimed, taken his oath and assumed office on June 14, 2004. As such, petitioners recourse would have been to file an electoral protest before the HRET. His remedy is not this petition for certiorari. Thus:

Finally, the private respondent Feliciano Belmonte, Jr. has already been proclaimed as the winner in the congressional elections in the fourth district of Quezon City. He has taken his oath of office and assumed his duties as representative; hence, the remedy open to the petitioner was to have filed an electoral protest with the Electoral Tribunal of the House of Representatives.[23]

The allegation that Mirandas proclamation is null and void ab initio does not divest the HRET of its jurisdiction. Thus:

(I)n an electoral contest where the validity of the proclamation of a winning candidate who has taken his oath of office and assumed his post as Congressman is raised, that issue is best addressed to the HRET. The reason for this ruling is self-evident, for it avoids duplicity of proceedings and a clash of jurisdiction between constitutional bodies, with due regard to the peoples mandate.[24]

In Lazatin v. Commission on Elections[25] we ruled that, upon proclamation of the winning candidate and despite its alleged invalidity, the COMELEC is divested of its jurisdiction to hear the protest. Thus:

The petition is impressed with merit because the petitioner has been proclaimed winner of the Congressional elections in the first

district of Pampanga, has taken his oath of office as such, and assumed his duties as Congressman. For this Court to take cognizance of the electoral protest against him would be to usurp the functions of the House Electoral Tribunal. The alleged invalidity of the proclamation (which has been previously ordered by the COMELEC itself) despite alleged irregularities in connection therewith, and despite the pendency of the protests of the rival candidates, is a matter that is also addressed, considering the premises, to the sound judgment of the Electoral Tribunal.

In this case, certiorari will not lie considering that there is an available and adequate remedy in the ordinary course of law for the purpose of annulling or modifying the proceedings before the COMELEC. After the proclamation, petitioners remedy was an electoral protest before the HRET. The resolution of the issues presented in this petition is best addressed to the sound judgment and discretion of the electoral tribunal.

WHEREFORE, in view of the foregoing, the instant Petition for Certiorari is DISMISSED for lack of merit. No pronouncement as to costs.

SO ORDERED.

Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, Tinga, Chico-Nazario, and Garcia, JJ., concur.

Callejo, Sr., J., on official leave.

EN BANC 

 BARANGAY ASSOCIATION FOR G.R. No. 179271NATIONAL ADVANCEMENTAND TRANSPARENCY (BANAT),Petitioner, - versus - COMMISSION ON ELECTIONS(sitting as the National Board ofCanvassers),Respondent. ARTS BUSINESS AND SCIENCEPROFESSIONALS,Intervenor. AANGAT TAYO,Intervenor. COALITION OF ASSOCIATIONSOF SENIOR CITIZENS IN THEPHILIPPINES, INC. (SENIORCITIZENS),Intervenor.x- - - - - - - - - - - - - - - - - - - - - - - - - - - - xBAYAN MUNA, ADVOCACY FOR G.R. No. 179295TEACHER EMPOWERMENT

THROUGH ACTION, COOPERATION Present:AND HARMONY TOWARDSEDUCATIONAL REFORMS, INC., PUNO, C.J.,and ABONO, QUISUMBING,Petitioners, YNARES-SANTIAGO,CARPIO,AUSTRIA-MARTINEZ,CORONA,- versus - CARPIO MORALES,

TINGA,CHICO-NAZARIO,VELASCO, JR.,

NACHURA,LEONARDO-DE CASTRO,BRION,PERALTA, andBERSAMIN, JJ.

  

COMMISSION ON ELECTIONS, Promulgated:Respondent.

_______________________

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

  

D E C I S I O N CARPIO, J.: 

The Case Petitioner in G.R. No. 179271 Barangay Association for National Advancement and Transparency (BANAT) in a petition for certiorari and mandamus,[1] assails the Resolution[2] promulgated on 3 August 2007 by the Commission on Elections (COMELEC) in NBC No. 07-041 (PL). The COMELECs resolution in NBC No. 07-041 (PL) approved the recommendation of Atty. Alioden D. Dalaig, Head of the National Board of Canvassers (NBC) Legal Group, to deny the petition of BANAT for being moot. BANAT filed before the COMELEC En Banc, acting as NBC, a Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution. The following are intervenors in G.R. No. 179271: Arts Business and Science Professionals (ABS), Aangat Tayo (AT), and Coalition of Associations of Senior Citizens in the Philippines, Inc. (Senior Citizens). Petitioners in G.R. No. 179295 Bayan Muna, Abono, and Advocacy for Teacher Empowerment Through

Action, Cooperation and Harmony Towards Educational Reforms (A Teacher) in a petition for certiorari with mandamus and prohibition,[3] assails NBC Resolution No. 07-60[4] promulgated on 9 July 2007. NBC No. 07-60 made a partial proclamation of parties, organizations and coalitions that obtained at least two percent of the total votes cast under the Party-List System. The COMELEC announced that, upon completion of the canvass of the party-list results, it would determine the total number of seats of each winning party, organization, or coalition in accordance with Veterans Federation Party v. COMELEC[5] (Veterans). Estrella DL Santos, in her capacity as President and First Nominee of the Veterans Freedom Party, filed a motion to intervene in both G.R. Nos. 179271 and 179295. 

The Facts

The 14 May 2007 elections included the elections for the party-list representatives. The COMELEC counted 15,950,900 votes cast for 93 parties under the Party-List System.[6]On 27 June 2002, BANAT filed a Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution, docketed as NBC No. 07-041 (PL) before the NBC. BANAT filed its petition because [t]he Chairman and the Members of the [COMELEC] have recently been quoted in the national papers that the

[COMELEC] is duty bound to and shall implement the Veterans ruling, that is, would apply the Panganiban formula in allocating party-list seats.[7] There were no intervenors in BANATs petition before the NBC. BANAT filed a memorandum on 19 July 2007.

On 9 July 2007, the COMELEC, sitting as the NBC, promulgated NBC Resolution No. 07-60. NBC Resolution No. 07-60 proclaimed thirteen (13) parties as winners in the party-list elections, namely: Buhay Hayaan Yumabong (BUHAY), Bayan Muna, Citizens Battle Against Corruption (CIBAC), Gabrielas Women Party (Gabriela), Association of Philippine Electric Cooperatives (APEC), A Teacher, Akbayan! Citizens Action Party (AKBAYAN), Alagad, Luzon Farmers Party (BUTIL), Cooperative-Natco Network Party (COOP-NATCCO), Anak Pawis, Alliance of Rural Concerns (ARC), and Abono. We quote NBC Resolution No. 07-60 in its entirety below: 

WHEREAS, the Commission on Elections sitting en banc as National Board of Canvassers, thru its Sub-Committee for Party-List, as of 03 July 2007, had officially canvassed, in open and public proceedings, a total of fifteen million two hundred eighty three thousand six hundred fifty-nine (15,283,659) votes under the Party-List System of Representation, in connection with the National and Local Elections conducted last 14 May 2007;

WHEREAS, the study conducted by the Legal and Tabulation Groups of the National Board of

Canvassers reveals that the projected/maximum total party-list votes cannot go any higher than sixteen million seven hundred twenty three thousand one hundred twenty-one (16,723,121) votes given the following statistical data: Projected/Maximum Party-List Votes for May 2007 Elections 

i. Total party-list votes already canvassed/tabulated 15,283,659

ii. Total party-list votes remaining uncanvassed/ untabulated (i.e. canvass deferred) 1,337,032

iii. Maximum party-list votes (based on 100% outcome) from areas not yet submitted for canvass (Bogo, Cebu; Bais City; Pantar, Lanao del Norte; and Pagalungan, Maguindanao)

102,430

Maximum Total Party-List Votes 16,723,121

 WHEREAS, Section 11 of Republic Act No. 7941 (Party-List System Act) provides in part:

 The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each: provided, that those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes: provided, finally, that each party, organization, or coalition shall be entitled to not more than three (3) seats.

WHEREAS, for the 2007 Elections, based on the above projected total of party-list votes, the presumptive two percent (2%) threshold can be pegged at three hundred thirty four thousand four hundred sixty-two (334,462) votes;

WHEREAS, the Supreme Court, in Citizens Battle Against Corruption (CIBAC) versus COMELEC, reiterated its ruling in Veterans Federation Party versus COMELEC adopting a formula for the additional seats of each party, organization or coalition receving more than the required two percent (2%) votes, stating that the same shall be determined only after all party-list ballots have been completely canvassed; WHEREAS, the parties, organizations, and coalitions that have thus far garnered at least three hundred thirty four thousand four hundred sixty-two (334,462) votes are as follows: 

RANK PARTY/ORGANIZATION/COALITION

VOTESRECEIVED

1 BUHAY 1,163,218

2 BAYAN MUNA 972,730

3 CIBAC 760,260

4 GABRIELA 610,451

5 APEC 538,971

6 A TEACHER 476,036

7 AKBAYAN 470,872

8 ALAGAD 423,076

9 BUTIL 405,052

10 COOP-NATCO 390,029

11 BATAS 386,361

12 ANAK PAWIS 376,036

13 ARC 338,194

14 ABONO 337,046

 WHEREAS, except for Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS), against which an URGENT PETITION FOR CANCELLATION/REMOVAL OF REGISTRATION AND DISQUALIFICATION OF PARTY-LIST NOMINEE (With Prayer for the Issuance of Restraining Order) has been filed before the Commission, docketed as SPC No. 07-250, all the parties, organizations and coalitions included in the aforementioned list are therefore entitled to at least one seat under the party-list system of representation in the meantime. NOW, THEREFORE, by virtue of the powers vested in it by the Constitution, the Omnibus Election Code, Executive Order No. 144, Republic Act Nos. 6646, 7166, 7941, and other election laws, the Commission on Elections, sitting en banc as the National Board of Canvassers, hereby RESOLVES to PARTIALLY PROCLAIM, subject to certain conditions set forth below, the following parties, organizations and coalitions participating under the Party-List System: 

1 Buhay Hayaan Yumabong BUHAY

2 Bayan Muna BAYAN MUNA

3 Citizens Battle Against Corruption CIBAC

4 Gabriela Womens Party GABRIELA

5 Association of Philippine Electric Cooperatives

APEC

6 Advocacy for Teacher Empowerment Through Action, Cooperation and Harmony Towards Educational Reforms, Inc.

A TEACHER

7 Akbayan! Citizens Action Party AKBAYAN

8 Alagad ALAGAD

9 Luzon Farmers Party BUTIL

10 Cooperative-Natco Network Party COOP-NATCCO

11 Anak Pawis ANAKPAWIS

12 Alliance of Rural Concerns ARC

13 Abono ABONO

 This is without prejudice to the proclamation of other parties, organizations, or coalitions which may later on be established to have obtained at least two percent (2%) of the total actual votes cast under the Party-List System. The total number of seats of each winning party, organization or coalition shall be determined pursuant to Veterans Federation Party versus COMELEC formula upon completion of the canvass of the party-list results. The proclamation of Bagong Alyansang

Tagapagtaguyod ng Adhikaing Sambayanan (BATAS) is hereby deferred until final resolution of SPC No. 07-250, in order not to render the proceedings therein moot and academic. Finally, all proclamation of the nominees of concerned parties, organizations and coalitions with pending disputes shall likewise be held in abeyance until final resolution of their respective cases. Let the Clerk of the Commission implement this Resolution, furnishing a copy thereof to the Speaker of the House of Representatives of the Philippines. SO ORDERED.[8] (Emphasis in the original) 

 Pursuant to NBC Resolution No. 07-60, the COMELEC, acting as NBC, promulgated NBC Resolution No. 07-72, which declared the additional seats allocated to the appropriate parties. We quote from the COMELECs interpretation of the Veterans formula as found in NBC Resolution No. 07-72:  

WHEREAS, on July 9, 2007, the Commission on Elections sitting en banc as the National Board of Canvassers proclaimed thirteen (13) qualified parties, organization[s] and coalitions based on the presumptive two percent (2%) threshold of 334,462 votes from the projected maximum total number of party-list votes of 16,723,121, and were thus given one (1) guaranteed party-list seat each;

WHEREAS, per Report of the Tabulation Group and Supervisory Committee of the National Board of Canvassers, the projected maximum total party-list votes, as of July 11, 2007, based on the votes actually canvassed, votes canvassed but not included in Report No. 29, votes received but uncanvassed, and maximum votes expected for Pantar, Lanao del Norte, is 16,261,369; and that the projected maximum total votes for the thirteen (13) qualified parties, organizations and coalition[s] are as follows: 

Party-List Projected total number of votes

1 BUHAY 1,178,747

2 BAYAN MUNA 977,476

3 CIBAC 755,964

4 GABRIELA 621,718

5 APEC 622,489

6 A TEACHER 492,369

7 AKBAYAN 462,674

8 ALAGAD 423,190

9 BUTIL 409,298

10 COOP-NATCO 412,920

11 ANAKPAWIS 370,165

12 ARC 375,846

13 ABONO 340,151

 WHEREAS, based on the above Report, Buhay Hayaan Yumabong (Buhay) obtained the highest

number of votes among the thirteen (13) qualified parties, organizations and coalitions, making it the first party in accordance with Veterans Federation Party versus COMELEC, reiterated in Citizens Battle Against Corruption (CIBAC) versus COMELEC;

WHEREAS, qualified parties, organizations and coalitions participating under the party-list system of representation that have obtained one guaranteed (1) seat may be entitled to an additional seat or seats based on the formula prescribed by the Supreme Court in Veterans;

WHEREAS, in determining the additional seats for the first party, the correct formula as expressed in Veterans, is: Number of votes of first party Proportion of votes of first- - - - - - - - - - - - - - - - - - - - - = party relative to total votes forTotal votes for party-list system party-list system wherein the proportion of votes received by the first party (without rounding off) shall entitle it to additional seats: 

Proportion of votes receivedby the first party

Additional seats

Equal to or at least 6% Two (2) additional seats

Equal to or greater than 4% but less than 6% One (1) additional seat

Less than 4% No additional seat

 WHEREAS, applying the above formula, Buhay obtained the following percentage: 1,178,747- - - - - - - - = 0.07248 or 7.2%16,261,369 which entitles it to two (2) additional seats. WHEREAS, in determining the additional seats for the other qualified parties, organizations and coalitions, the correct formula as expressed in Veterans and reiterated in CIBAC is, as follows: No. of votes ofconcerned party No. of additionalAdditional seats for = ------------------- x seats allocated toa concerned party No. of votes of first partyfirst party WHEREAS, applying the above formula, the results are as follows: 

Party List Percentage Additional Seat

BAYAN MUNA 1.65 1

CIBAC 1.28 1

GABRIELA 1.05 1

APEC 1.05 1

A TEACHER 0.83 0

AKBAYAN 0.78 0

ALAGAD 0.71 0

BUTIL 0.69 0

COOP-NATCO 0.69 0

ANAKPAWIS 0.62 0

ARC 0.63 0

ABONO 0.57 0

 

NOW THEREFORE, by virtue of the powers vested in it by the Constitution, Omnibus Election Code, Executive Order No. 144, Republic Act Nos. 6646, 7166, 7941 and other elections laws, the Commission on Elections en banc sitting as the National Board of Canvassers, hereby RESOLVED, as it hereby RESOLVES, to proclaim the following parties, organizations or coalitions as entitled to additional seats, to wit:  

Party List Additional Seats

BUHAY 2

BAYAN MUNA 1

CIBAC 1

GABRIELA 1

APEC 1

 This is without prejudice to the proclamation of other parties, organizations or coalitions which may later on be established to have obtained at least two per cent (2%) of the total votes cast under the party-list system to entitle them to one (1) guaranteed

seat, or to the appropriate percentage of votes to entitle them to one (1) additional seat.

Finally, all proclamation of the nominees of concerned parties, organizations and coalitions with pending disputes shall likewise be held in abeyance until final resolution of their respective cases. Let the National Board of Canvassers Secretariat implement this Resolution, furnishing a copy hereof to the Speaker of the House of Representatives of the Philippines. SO ORDERED.[9]

 

Acting on BANATs petition, the NBC promulgated NBC Resolution No. 07-88 on 3 August 2007, which reads as follows:  

This pertains to the Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution filed by the Barangay Association for National Advancement and Transparency (BANAT). Acting on the foregoing Petition of the Barangay Association for National Advancement and Transparency (BANAT) party-list, Atty. Alioden D. Dalaig, Head, National Board of Canvassers Legal Group submitted his comments/observations and recommendation thereon [NBC 07-041 (PL)], which reads:

 COMMENTS / OBSERVATIONS:

 Petitioner Barangay Association for National Advancement and Transparency (BANAT), in its Petition to Proclaim the Full Number of Party-List Representatives Provided by the Constitution prayed for the following reliefs, to wit: 1. That the full number -- twenty percent (20%) -- of Party-List representatives as mandated by Section 5, Article VI of the Constitution shall be proclaimed. 2. Paragraph (b), Section 11 of RA 7941 which prescribes the 2% threshold votes, should be harmonized with Section 5, Article VI of the Constitution and with Section 12 of the same RA 7941 in that it should be applicable only to the first party-list representative seats to be allotted on the basis of their initial/first ranking. 3. The 3-seat limit prescribed by RA 7941 shall be applied; and 4. Initially, all party-list groups shall be given the number of seats corresponding to every 2% of the votes they received and the additional seats shall be allocated in accordance with Section 12 of RA

7941, that is, in proportion to the percentage of votes obtained by each party-list group in relation to the total nationwide votes cast in the party-list election, after deducting the corresponding votes of those which were allotted seats under the 2% threshold rule. In fine, the formula/procedure prescribed in the ALLOCATION OF PARTY-LIST SEATS, ANNEX A of COMELEC RESOLUTION 2847 dated 25 June 1996, shall be used for [the] purpose of determining how many seats shall be proclaimed, which party-list groups are entitled to representative seats and how many of their nominees shall seat [sic]. 5. In the alternative, to declare as unconstitutional Section 11 of Republic Act No. 7941 and that the procedure in allocating seats for party-list representative prescribed by Section 12 of RA 7941 shall be followed. RECOMMENDATION: The petition of BANAT is now moot and academic. The Commission En Banc in NBC Resolution No. 07-60 promulgated July 9, 2007 re In the Matter of the

Canvass of Votes and Partial Proclamation of the Parties, Organizations and Coalitions Participating Under the Party-List System During the May 14, 2007 National and Local Elections resolved among others that the total number of seats of each winning party, organization or coalition shall be determined pursuant to the Veterans Federation Party versus COMELEC formula upon completion of the canvass of the party-list results.

WHEREFORE, premises considered, the National Board of Canvassers RESOLVED, as it hereby RESOLVES, to approve and adopt the recommendation of Atty. Alioden D. Dalaig, Head, NBC Legal Group, to DENY the herein petition of BANAT for being moot and academic.

Let the Supervisory Committee implement this resolution.

SO ORDERED.[10] 

 BANAT filed a petition for certiorari and mandamus assailing the ruling in NBC Resolution No. 07-88. BANAT did not file a motion for reconsideration of NBC Resolution No. 07-88. 

On 9 July 2007, Bayan Muna, Abono, and A Teacher asked the COMELEC, acting as NBC, to reconsider its decision to use the Veterans formula as stated in its NBC Resolution No. 07-60 because the Veterans formula is violative of the Constitution and of Republic Act No. 7941 (R.A. No. 7941). On the same day, the COMELEC denied reconsideration during the proceedings of the NBC.[11] Aside from the thirteen party-list organizations proclaimed on 9 July 2007, the COMELEC proclaimed three other party-list organizations as qualified parties entitled to one guaranteed seat under the Party-List System: Agricultural Sector Alliance of the Philippines, Inc. (AGAP),[12] Anak Mindanao (AMIN),[13] and An Waray.[14] Per the certification[15] by COMELEC, the following party-list organizations have been proclaimed as of 19 May 2008: 

Party-List No. of Seat(s)

1.1 Buhay 3

1.2 Bayan Muna 2

1.3 CIBAC 2

1.4 Gabriela 2

1.5 APEC 2

1.6 A Teacher 1

1.7 Akbayan 1

1.8 Alagad 1

1.9 Butil 1

1.10 Coop-Natco [sic] 1

1.11 Anak Pawis 1

1.12 ARC 1

1.13 Abono 1

1.14 AGAP 1

1.15 AMIN 1 The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan (BATAS), against which an Urgent Petition for Cancellation/Removal of Registration and Disqualification of Party-list Nominee (with Prayer for the Issuance of Restraining Order) has been filed before the COMELEC, was deferred pending final resolution of SPC No. 07-250. 

Issues BANAT brought the following issues before this Court: 

1. Is the twenty percent allocation for party-list representatives provided in Section 5(2), Article VI of the Constitution mandatory or is it merely a ceiling? 2. Is the three-seat limit provided in Section 11(b) of RA 7941 constitutional? 3. Is the two percent threshold and qualifier votes prescribed by the same Section 11(b) of RA 7941

constitutional? 4. How shall the party-list representatives be allocated?[16]

 

Bayan Muna, A Teacher, and Abono, on the other hand, raised the following issues in their petition: 

I. Respondent Commission on Elections, acting as National Board of Canvassers, committed grave abuse of discretion amounting to lack or excess of jurisdiction when it promulgated NBC Resolution No. 07-60 to implement the First-Party Rule in the allocation of seats to qualified party-list organizations as said rule: A. Violates the constitutional principle of proportional representation. B. Violates the provisions of RA 7941 particularly: 1. The 2-4-6 Formula used by the First Party Rule in allocating additional seats for the First Party violates the principle of proportional representation under RA 7941. 2. The use of two formulas in the allocation of additional seats, one for the First Party and another for the qualifying parties, violates Section 11(b) of RA 7941. 3. The proportional relationships under the First Party Rule are different from those required under RA 7941;

 C. Violates the Four Inviolable Parameters of the Philippine party-list system as provided for under the same case of Veterans Federation Party, et al. v. COMELEC. II. Presuming that the Commission on Elections did not commit grave abuse of discretion amounting to lack or excess of jurisdiction when it implemented the First-Party Rule in the allocation of seats to qualified party-list organizations, the same being merely in consonance with the ruling in Veterans Federations Party, et al. v. COMELEC, the instant Petition is a justiciable case as the issues involved herein are constitutional in nature, involving the correct interpretation and implementation of RA 7941, and are of transcendental importance to our nation.[17]

 Considering the allegations in the petitions and the comments of the parties in these cases, we defined the following issues in our advisory for the oral arguments set on 22 April 2008: 

1. Is the twenty percent allocation for party-list representatives in Section 5(2), Article VI of the Constitution mandatory or merely a ceiling? 2. Is the three-seat limit in Section 11(b) of RA 7941 constitutional? 3. Is the two percent threshold prescribed in Section 11(b) of RA 7941 to qualify for one seat constitutional?

 4. How shall the party-list representative seats be allocated? 5. Does the Constitution prohibit the major political parties from participating in the party-list elections? If not, can the major political parties be barred from participating in the party-list elections?[18]

  

The Ruling of the Court The petitions have partial merit. We maintain that a Philippine-style party-list election has at least four inviolable parameters as clearly stated in Veterans. For easy reference, these are: 

First, the twenty percent allocation the combined number of all party-list congressmen shall not exceed twenty percent of the total membership of the House of Representatives, including those elected under the party list; Second, the two percent threshold only those parties garnering a minimum of two percent of the total valid votes cast for the party-list system are qualified to have a seat in the House of Representatives; Third, the three-seat limit each qualified party, regardless of the number of votes it actually obtained, is entitled to a maximum of three seats; that is, one qualifying and two additional seats; 

Fourth, proportional representation the additional seats which a qualified party is entitled to shall be computed in proportion to their total number of votes.[19]  

However, because the formula in Veterans has flaws in its mathematical interpretation of the term proportional representation, this Court is compelled to revisit the formula for the allocation of additional seats to party-list organizations. 

Number of Party-List Representatives:The Formula Mandated by the Constitution

  

Section 5, Article VI of the Constitution provides: 

Section 5. (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.  

The first paragraph of Section 11 of R.A. No. 7941 reads: 

Section 11. Number of Party-List Representatives. The party-list representatives shall constitute twenty per centum (20%) of the total number of the members of the House of Representatives including those under the party-list.x x x 

 Section 5(1), Article VI of the Constitution states that the House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law. The House of Representatives shall be composed of district representatives and party-list representatives. The Constitution allows the legislature to modify the number of the members of the House of Representatives.

Section 5(2), Article VI of the Constitution, on the other hand, states the ratio of party-list representatives to the total number of representatives. We compute the number

of seats available to party-list representatives from the number of legislative districts. On this point, we do not deviate from the first formula in Veterans, thus: 

Number of seats available to legislative districts x .20 =

Number of seats available toparty-list representatives

.80  

This formula allows for the corresponding increase in the number of seats available for party-list representatives whenever a legislative district is created by law. Since the 14th Congress of the Philippines has 220 district representatives, there are 55 seats available to party-list representatives. 

220 x .20 = 55

.80

 After prescribing the ratio of the number of party-list representatives to the total number of representatives, the Constitution left the manner of allocating the seats available to party-list representatives to the wisdom of the legislature. 

Allocation of Seats for Party-List Representatives:The Statutory Limits Presented by the Two Percent

Thresholdand the Three-Seat Cap

 

 All parties agree on the formula to determine the maximum number of seats reserved under the Party-List System, as well as on the formula to determine the guaranteed seats to party-list candidates garnering at least two-percent of the total party-list votes. However, there are numerous interpretations of the provisions of R.A. No. 7941 on the allocation of additional seats under the Party-List System. Veterans produced the First Party Rule,[20] and Justice Vicente V. Mendozas dissent in Veterans presented Germanys Niemeyer formula[21] as an alternative. The Constitution left to Congress the determination of the manner of allocating the seats for party-list representatives. Congress enacted R.A. No. 7941, paragraphs (a) and (b) of Section 11 and Section 12 of which provide: 

Section 11. Number of Party-List Representatives. x x x In determining the allocation of seats for the second vote,[22] the following procedure shall be observed: (a) The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered during the elections. (b) The parties, organizations, and coalitions

receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each: Provided, That those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes: Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats. Section 12. Procedure in Allocating Seats for Party-List Representatives. The COMELEC shall tally all the votes for the parties, organizations, or coalitions on a nationwide basis, rank them according to the number of votes received and allocate party-list representatives proportionately according to the percentage of votes obtained by each party, organization, or coalition as against the total nationwide votes cast for the party-list system. (Emphasis supplied)

  In G.R. No. 179271, BANAT presents two interpretations through three formulas to allocate party-list representative seats. The first interpretation allegedly harmonizes the provisions of Section 11(b) on the 2% requirement with Section 12 of R.A. No. 7941. BANAT described this procedure as follows: 

(a) The party-list representatives shall constitute twenty percent (20%) of the total Members of the House of Representatives including those from the

party-list groups as prescribed by Section 5, Article VI of the Constitution, Section 11 (1st par.) of RA 7941 and Comelec Resolution No. 2847 dated 25 June 1996. Since there are 220 District Representatives in the 14th Congress, there shall be 55 Party-List Representatives. All seats shall have to be proclaimed. (b) All party-list groups shall initially be allotted one (1) seat for every two per centum (2%) of the total party-list votes they obtained; provided, that no party-list groups shall have more than three (3) seats (Section 11, RA 7941). (c) The remaining seats shall, after deducting the seats obtained by the party-list groups under the immediately preceding paragraph and after deducting from their total the votes corresponding to those seats, the remaining seats shall be allotted proportionately to all the party-list groups which have not secured the maximum three (3) seats under the 2% threshold rule, in accordance with Section 12 of RA 7941.[23]  

Forty-four (44) party-list seats will be awarded under BANATs first interpretation. The second interpretation presented by BANAT assumes that the 2% vote requirement is declared unconstitutional, and apportions the seats for party-list representatives by following Section 12 of R.A. No. 7941. BANAT states that the COMELEC: 

(a) shall tally all the votes for the parties, organizations, or coalitions on a nationwide basis;(b) rank them according to the number of votes received; and,(c) allocate party-list representatives proportionately according to the percentage of votes obtained by each party, organization or coalition as against the total nationwide votes cast for the party-list system.[24]

 BANAT used two formulas to obtain the same results: one is based on the proportional percentage of the votes received by each party as against the total nationwide party-list votes, and the other is by making the votes of a party-list with a median percentage of votes as the divisor in computing the allocation of seats.[25] Thirty-four (34) party-list seats will be awarded under BANATs second interpretation. In G.R. No. 179295, Bayan Muna, Abono, and A Teacher criticize both the COMELECs original 2-4-6 formula and the Veterans formula for systematically preventing all the party-list seats from being filled up. They claim that both formulas do not factor in the total number of seats alloted for the entire Party-List System. Bayan Muna, Abono, and A Teacher reject the three-seat cap, but accept the 2% threshold. After determining the qualified parties, a second percentage is generated by dividing the votes of a qualified party by the total votes of all qualified parties only. The number of seats allocated to a qualified party is computed by multiplying

the total party-list seats available with the second percentage. There will be a first round of seat allocation, limited to using the whole integers as the equivalent of the number of seats allocated to the concerned party-list. After all the qualified parties are given their seats, a second round of seat allocation is conducted. The fractions, or remainders, from the whole integers are ranked from highest to lowest and the remaining seats on the basis of this ranking are allocated until all the seats are filled up.[26] We examine what R.A. No. 7941 prescribes to allocate seats for party-list representatives. Section 11(a) of R.A. No. 7941 prescribes the ranking of the participating parties from the highest to the lowest based on the number of votes they garnered during the elections.   

Table 1. Ranking of the participating parties from the highest to the lowest based on the number of votes garnered during the elections.[27]  

Rank PartyVotes

GarneredRank Party

Votes Garnered

1 BUHAY 1,169,234 48 KALAHI 88,868

2 BAYAN MUNA

979,039 49 APOI 79,386

3 CIBAC 755,686 50 BP 78,541

4 GABRIELA 621,171 51 AHONBAYAN 78,424

5 APEC 619,657 52 BIGKIS 77,327

6 A TEACHER 490,379 53 PMAP 75,200

7 AKBAYAN 466,112 54 AKAPIN 74,686

8 ALAGAD 423,149 55 PBA 71,544

9 COOP-NATCCO

409,883 56 GRECON 62,220

10 BUTIL 409,160 57 BTM 60,993

11 BATAS 385,810 58 A SMILE 58,717

12 ARC 374,288 59 NELFFI 57,872

13 ANAKPAWIS 370,261 60 AKSA 57,012

14 ABONO 339,990 61 BAGO 55,846

15 AMIN 338,185 62 BANDILA 54,751

16 AGAP 328,724 63 AHON 54,522

17 AN WARAY 321,503 64 ASAHAN MO 51,722

18 YACAP 310,889 65 AGBIAG! 50,837

19 FPJPM 300,923 66 SPI 50,478

20 UNI-MAD 245,382 67 BAHANDI 46,612

21 ABS 235,086 68 ADD 45,624

22 KAKUSA 228,999 69 AMANG 43,062

23 KABATAAN 228,637 70 ABAY PARAK 42,282

24 ABA-AKO 218,818 71 BABAE KA 36,512

25 ALIF 217,822 72 SB 34,835

26 SENIOR CITIZENS

213,058 73 ASAP 34,098

27 AT 197,872 74 PEP 33,938

28 VFP 196,266 75 ABA ILONGGO

33,903

29 ANAD 188,521 76 VENDORS 33,691

30 BANAT 177,028 77 ADD-TRIBAL 32,896

31 ANG KASANGGA

170,531 78 ALMANA 32,255

32 BANTAY 169,801 79 AANGAT KA PILIPINO

29,130

33 ABAKADA 166,747 80 AAPS 26,271

34 1-UTAK 164,980 81 HAPI 25,781

35 TUCP 162,647 82 AAWAS 22,946

36 COCOFED 155,920 83 SM 20,744

37 AGHAM 146,032 84 AG 16,916

38 ANAK 141,817 85 AGING PINOY 16,729

39 ABANSE! PINAY

130,356 86 APO 16,421

40 PM 119,054 87 BIYAYANG BUKID

16,241

41 AVE 110,769 88 ATS 14,161

42 SUARA 110,732 89 UMDJ 9,445

43 ASSALAM 110,440 90 BUKLOD FILIPINA

8,915

44 DIWA 107,021 91 LYPAD 8,471

45 ANC 99,636 92 AA-KASOSYO 8,406

46 SANLAKAS 97,375 93 KASAPI 6,221

47 ABC 90,058 TOTAL 15,950,900

  

The first clause of Section 11(b) of R.A. No. 7941 states that parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each. This clause guarantees a seat to the two-percenters. In Table 2 below, we use the first 20 party-list candidates for illustration purposes. The percentage of votes garnered by each party is arrived at by dividing the number of votes garnered by each party by 15,950,900, the total number of votes cast for all party-list candidates. 

Table 2. The first 20 party-list candidates and their respective percentage of votes garnered over the total votes for the party-list.[28] 

Rank PartyVotes

Garnered

Votes Garnered over Total Votes for Party-List,

in %

Guaranteed Seat

1 BUHAY 1,169,234 7.33% 1

2 BAYAN MUNA 979,039 6.14% 1

3 CIBAC 755,686 4.74% 1

4 GABRIELA 621,171 3.89% 1

5 APEC 619,657 3.88% 1

6 A TEACHER 490,379 3.07% 1

7 AKBAYAN 466,112 2.92% 1

8 ALAGAD 423,149 2.65% 1

9 COOP-NATCCO 409,883 2.57% 1

10 BUTIL 409,160 2.57% 1

11 BATAS[29] 385,810 2.42% 1

12 ARC 374,288 2.35% 1

13 ANAKPAWIS 370,261 2.32% 1

14 ABONO 339,990 2.13% 1

15 AMIN 338,185 2.12% 1

16 AGAP 328,724 2.06% 1

17 AN WARAY 321,503 2.02% 1

Total 17

18 YACAP 310,889 1.95% 0

19 FPJPM 300,923 1.89% 0

20 UNI-MAD 245,382 1.54% 0

 

From Table 2 above, we see that only 17 party-list candidates received at least 2% from the total number of votes cast for party-list candidates. The 17 qualified party-list candidates, or the two-percenters, are the party-list candidates that are entitled to one seat each, or the guaranteed seat. In this first round of seat allocation, we distributed 17 guaranteed seats.The second clause of Section 11(b) of R.A. No. 7941 provides that those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes. This is where petitioners and intervenors problem with the formula in Veterans lies. Veterans interprets the clause in proportion to their total number of votes to be in

proportion to the votes of the first party. This interpretation is contrary to the express language of R.A. No. 7941. We rule that, in computing the allocation of additional seats, the continued operation of the two percent threshold for the distribution of the additional seats as found in the second clause of Section 11(b) of R.A. No. 7941 is unconstitutional. This Court finds that the two percent threshold makes it mathematically impossible to achieve the maximum number of available party list seats when the number of available party list seats exceeds 50. The continued operation of the two percent threshold in the distribution of the additional seats frustrates the attainment of the permissive ceiling that 20% of the members of the House of Representatives shall consist of party-list representatives. To illustrate: There are 55 available party-list seats. Suppose there are 50 million votes cast for the 100 participants in the party list elections. A party that has two percent of the votes cast, or one million votes, gets a guaranteed seat. Let us further assume that the first 50 parties all get one million votes. Only 50 parties get a seat despite the availability of 55 seats. Because of the operation of the two percent threshold, this situation will repeat itself even if we increase the available party-list seats to 60 seats and even if we increase the votes cast to 100 million. Thus, even if the maximum number of

parties get two percent of the votes for every party, it is always impossible for the number of occupied party-list seats to exceed 50 seats as long as the two percent threshold is present. We therefore strike down the two percent threshold only in relation to the distribution of the additional seats as found in the second clause of Section 11(b) of R.A. No. 7941. The two percent threshold presents an unwarranted obstacle to the full implementation of Section 5(2), Article VI of the Constitution and prevents the attainment of the broadest possible representation of party, sectoral or group interests in the House of Representatives.[30] In determining the allocation of seats for party-list representatives under Section 11 of R.A. No. 7941, the following procedure shall be observed: 

1.                 The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered during the elections. 2.                 The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one guaranteed seat each. 3.                 Those garnering sufficient number of votes, according to the ranking in paragraph 1, shall be entitled

to additional seats in proportion to their total number of votes until all the additional seats are allocated. 4.                 Each party, organization, or coalition shall be entitled to not more than three (3) seats. In computing the additional seats, the guaranteed seats shall no longer be included because they have already been allocated, at one seat each, to every two-percenter. Thus, the remaining available seats for allocation as additional seats are the maximum seats reserved under the Party List System less the guaranteed seats. Fractional seats are disregarded in the absence of a provision in R.A. No. 7941 allowing for a rounding off of fractional seats. In declaring the two percent threshold unconstitutional, we do not limit our allocation of additional seats in Table 3 below to the two-percenters. The percentage of votes garnered by each party-list candidate is arrived at by dividing the number of votes garnered by each party by 15,950,900, the total number of votes cast for party-list candidates. There are two steps in the second round of seat allocation. First, the percentage is multiplied by the remaining available seats, 38, which is the difference between the 55 maximum seats reserved under the Party-List System and the 17 guaranteed seats of the two-percenters. The whole integer of the product of the percentage and of the remaining available seats

corresponds to a partys share in the remaining available seats. Second, we assign one party-list seat to each of the parties next in rank until all available seats are completely distributed. We distributed all of the remaining 38 seats in the second round of seat allocation. Finally, we apply the three-seat cap to determine the number of seats each qualified party-list candidate is entitled. Thus:       

Table 3. Distribution of Available Party-List Seats 

Rank PartyVotes

Garnered

Votes Garnered

overTotal Votes for Party List, in %

(A)

Guaranteed Seat

(First Round)

(B)

AdditionalSeats

(Second Round)

(C)

(B) plus (C), in whole

integers

(D)

1 BUHAY 1,169,234 7.33% 1 2.79

2 BAYAN MUNA

979,039 6.14% 1 2.33

3 CIBAC 755,686 4.74% 1 1.80

4 GABRIELA 621,171 3.89% 1 1.48

5 APEC 619,657 3.88% 1 1.48

6 A Teacher 490,379 3.07% 1 1.17

7 AKBAYAN 466,112 2.92% 1 1.11

8 ALAGAD 423,149 2.65% 1 1.01

9[31] COOP-NATCCO

409,883 2.57% 1 1

10 BUTIL 409,160 2.57% 1 1

11 BATAS 385,810 2.42% 1 1

12 ARC 374,288 2.35% 1 1

13 ANAKPAWIS

370,261 2.32% 1 1

14 ABONO 339,990 2.13% 1 1

15 AMIN 338,185 2.12% 1 1

16 AGAP 328,724 2.06% 1 1

17 AN WARAY 321,503 2.02% 1 1

18 YACAP 310,889 1.95% 0 1

19 FPJPM 300,923 1.89% 0 1

20 UNI-MAD 245,382 1.54% 0 1

21 ABS 235,086 1.47% 0 1

22 KAKUSA 228,999 1.44% 0 1

23 KABATAAN 228,637 1.43% 0 1

24 ABA-AKO 218,818 1.37% 0 1

25 ALIF 217,822 1.37% 0 1

26 SENIOR CITIZENS

213,058 1.34% 0 1

27 AT 197,872 1.24% 0 1

28 VFP 196,266 1.23% 0 1

29 ANAD 188,521 1.18% 0 1

30 BANAT 177,028 1.11% 0 1

31 ANG KASANGGA

170,531 1.07% 0 1

32 BANTAY 169,801 1.06% 0 1

33 ABAKADA 166,747 1.05% 0 1

34 1-UTAK 164,980 1.03% 0 1

35 TUCP 162,647 1.02% 0 1

36 COCOFED 155,920 0.98% 0 1

Total 17 55

  

Applying the procedure of seat allocation as illustrated in Table 3 above, there are 55 party-list representatives from the 36 winning party-list organizations. All 55 available party-list seats are filled. The additional seats allocated to the parties with sufficient number of votes for one whole seat, in no case to exceed a total of three seats for each party, are shown in column (D). 

Participation of Major Political Parties in Party-List Elections

 The Constitutional Commission adopted a multi-party system that allowed all political parties to participate in the party-list elections. The deliberations of the Constitutional Commission clearly bear this out, thus: 

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. x x x 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 Taada wants to run under BAYAN group and says that he represents the farmers, would he qualify? MR. VILLACORTA. No, Senator Taada 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. x x x x MR. OPLE. x x x In my opinion, this will also create the stimulus for political parties and mass organizations to seek common ground. For example, we have the PDP-Laban and the UNIDO. I see no reason why they should not be able to make common goals with mass organizations so that the very leadership of these parties can be transformed through the participation of mass organizations. And if this is true of the administration parties, this will be true of others like the Partido ng Bayan

which is now being formed. There is no question that they will be attractive to many mass organizations. In the opposition parties to which we belong, there will be a stimulus for us to contact mass organizations so that with their participation, the policies of such parties can be radically transformed because this amendment will create conditions that will challenge both the mass organizations and the political parties to come together. And the party list system is certainly available, although it is open to all the parties. It is understood that the parties will enter in the roll of the COMELEC the names of representatives of mass organizations affiliated with them. So that we may, in time, develop this excellent system that they have in Europe where labor organizations and cooperatives, for example, distribute themselves either in the Social Democratic Party and the Christian Democratic Party in Germany, and their very presence there has a transforming effect upon the philosophies and the leadership of those parties. It is also a fact well known to all that in the United States, the AFL-CIO always vote with the Democratic Party. But the businessmen, most of them, always vote with the Republican Party, meaning that there is no reason at all why political parties and mass organizations should not combine, reenforce, influence and interact with each other so that the very objectives that we set in this Constitution for sectoral representation are achieved in a wider, more lasting, and more institutionalized way. Therefore, I support this [Monsod-Villacorta] amendment. It installs sectoral representation as a constitutional gift, but at the same time, it

challenges the sector to rise to the majesty of being elected representatives later on through a party list system; and even beyond that, to become actual political parties capable of contesting political power in the wider constitutional arena for major political parties. x x x [32] (Emphasis supplied)

R.A. No. 7941 provided the details for the concepts put forward by the Constitutional Commission. Section 3 of R.A. No. 7941 reads: 

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 interests 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.

 Congress, in enacting R.A. No. 7941, put the three-seat cap to prevent any party from dominating the party-list elections. Neither the Constitution nor R.A. No. 7941 prohibits major political parties from participating in the party-list system. On the contrary, the framers of the Constitution clearly intended the major political parties to participate in party-list elections through their sectoral wings. In fact, the members of the Constitutional Commission voted down, 19-22, any permanent sectoral seats, and in

the alternative the reservation of the party-list system to the sectoral groups.[33] In defining a party that participates in party-list elections as either a political party or a sectoral party, R.A. No. 7941 also clearly intended that major political parties will participate in the party-list elections. Excluding 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. Read together, R.A. No. 7941 and the deliberations of the Constitutional Commission state that major political parties are allowed to establish, or form coalitions with, sectoral organizations for electoral or political purposes. There should not be a problem if, for example, the Liberal Party participates in the party-list election through the Kabataang Liberal ng Pilipinas (KALIPI), its sectoral youth wing. The other major political parties can thus organize, or affiliate with, their chosen sector or sectors. To further illustrate, the Nacionalista Party can establish a fisherfolk wing to participate in the party-list election, and this fisherfolk wing can field its fisherfolk nominees. Kabalikat ng Malayang Pilipino (KAMPI) can do the same for the urban poor. 

The qualifications of party-list nominees are prescribed in Section 9 of R.A. No. 7941:  

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 elections, able to read and write, 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 until the expiration of his term.

 Under Section 9 of R.A. No. 7941, it is not necessary that the party-list organizations nominee wallow in poverty, destitution and infirmity[34] as there is no financial status required in the law. It is enough that the nominee of the sectoral party/organization/coalition belongs to the marginalized and underrepresented sectors,[35] that is, if the nominee represents the fisherfolk, he or she must be a fisherfolk, or if the nominee represents the senior citizens, he or she must be a senior citizen.

 Neither the Constitution nor R.A. No. 7941 mandates the filling-up of the entire 20% allocation of party-list representatives found in the Constitution. The Constitution, in paragraph 1, Section 5 of Article VI, left the determination of the number of the members of the House of Representatives to Congress: The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, x x x. The 20% allocation of party-list representatives is merely a ceiling; party-list representatives cannot be more than 20% of the members of the House of Representatives. However, we cannot allow the continued existence of a provision in the law which will systematically prevent the constitutionally allocated 20% party-list representatives from being filled. The three-seat cap, as a limitation to the number of seats that a qualified party-list organization may occupy, remains a valid statutory device that prevents any party from dominating the party-list elections. Seats for party-list representatives shall thus be allocated in accordance with the procedure used in Table 3 above. However, by a vote of 8-7, the Court decided to continue the ruling in Veterans disallowing major political parties from participating in the party-list elections, directly or indirectly. Those who voted to continue disallowing major political parties from the

party-list elections joined Chief Justice Reynato S. Puno in his separate opinion. On the formula to allocate party-list seats, the Court is unanimous in concurring with this ponencia. WHEREFORE, we PARTIALLY GRANT the petition. We SET ASIDE the Resolution of the COMELEC dated 3 August 2007 in NBC No. 07-041 (PL) as well as the Resolution dated 9 July 2007 in NBC No. 07-60. We declare unconstitutional the two percent threshold in the distribution of additional party-list seats. The allocation of additional seats under the Party-List System shall be in accordance with the procedure used in Table 3 of this Decision. Major political parties are disallowed from participating in party-list elections. This Decision is immediately executory. No pronouncement as to costs. SO ORDERED.  ANTONIO T. CARPIOAssociate Justice    WE CONCUR:

 

 REYNATO S. PUNO

Chief Justice   

LEONARDO A. QUISUMBINGAssociate Justice

CONSUELO YNARES-SANTIAGOAssociate Justice

MA. ALICIA AUSTRIA-MARTINEZAssociate Justice

RENATO C. CORONAAssociate Justice

CONCHITA CARPIO MORALESAssociate Justice

DANTE O. TINGAAssociate Justice

MINITA V. CHICO-NAZARIOAssociate Justice

PRESBITERO J. VELASCO, JR.Associate Justice

ANTONIO EDUARDO B. NACHURAAssociate Justice

TERESITA J. LEONARDO-DE CASTROAssociate Justice

ARTURO D. BRIONAssociate Justice

DIOSDADO M. PERALTAAssociate Justice

 

 

LUCAS P. BERSAMINAssociate Justice

   

CERTIFICATION

 

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

 

 

 

REYNATO S. PUNOChief Justice