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Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. L-18463 October 4, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. GREGORIO PERFECTOR, defendant-

appellant.

Alfonso E. Mendoza and the appellant in behalf of the latter. Attorney-General Villa-Real for appellee.

MALCOLM, J.:

The important question is here squarely presented of whether article 256 of the Spanish Penal Code,

punishing "Any person who, by . . . writing, shall defame, abuse, or insult any Minister of the Crown or

other person in authority . . .," is still in force.

About August 20, 1920, the Secretary of the Philippine Senate, Fernando M. Guerrero, discovered that

certain documents which constituted the records of testimony given by witnesses in the investigation of

oil companies, had disappeared from his office. Shortly thereafter, the Philippine Senate, having been

called into special session by the Governor-General, the Secretary for the Senate informed that body of

the loss of the documents and of the steps taken by him to discover the guilty party. The day following the

convening of the Senate, September 7, 1920, the newspaper La Nacion, edited by Mr. Gregorio Perfecto,

published an article reading as follows:

Half a month has elapsed since the discovery, for the first time, of the scandalous robbery of records

which were kept and preserved in the iron safe of the Senate, yet up to this time there is not the slightest

indication that the author or authors of the crime will ever be discovered.

To find them, it would not, perhaps, be necessary to go out of the Sente itself, and the persons in charge

of the investigation of the case would not have to display great skill in order to succeed in their

undertaking, unless they should encounter the insuperable obstacle of offical concealment.

In that case, every investigation to be made would be but a mere comedy and nothing more.

After all, the perpetration of the robbery, especially under the circumstances that have surrounded it,

does not surprise us at all.

The execution of the crime was but the natural effect of the environment of the place in which it was

committed.

How many of the present Senators can say without remorse in their conscience and with serenity of mind,

that they do not owe their victory to electoral robbery? How may?

The author or authors of the robbery of the records from the said iron safe of the Senate have, perhaps,

but followed the example of certain Senators who secured their election through fraud and robbery.

The Philippine Senate, in its session of September 9, 1920, adopted a resolution authorizing its committee



on elections and privileges to report as to the action which should be taken with reference to the article

published in La Nacion. On September 15, 1920, the Senate adopted a resolution authorizing the

President of the Senate to indorse to the Attorney-General, for his study and corresponding action, all the

papers referring to the case of the newspaper La Nacion and its editor, Mr. Gregorio Perfecto. As a result,

an information was filed in the municipal court of the City of Manila by an assistant city fiscal, in which the

editorial in question was set out and in which it was alleged that the same constituted a violation of

article 256 of the Penal Code. The defendant Gregorio Perfecto was found guilty in the municipal courtand again in the Court of First Instance of Manila.

During the course of the trial in the Court of First Instance, after the prosecution had rested, the defense

moved for the dismissal of the case. On the subject of whether or not article 256 of the Penal Code, under

which the information was presented, is in force, the trial judge, the Honorable George R. Harvey, said:

This antiquated provision was doubtless incorporated into the Penal Code of Spain for the protection of

the Ministers of the Crown and other representatives of the King against free speech and action by

Spanish subjects. A severe punishment was prescribed because it was doubtless considered a much more

serious offense to insult the King's representative than to insult an ordinary individual. This provision, with

almost all the other articles of that Code, was extended to the Philippine Islands when under the

dominion of Spain because the King's subject in the Philippines might defame, abuse or insult theMinisters of the Crown or other representatives of His Majesty. We now have no Ministers of the Crown

or other persons in authority in the Philippines representing the King of Spain, and said provision, with

other articles of the Penal Code, had apparently passed into "innocuous desuetude," but the Supreme

Corut of the Philippine Islands has, by a majority decision, held that said article 256 is the law of the land

to-day. . . .

The Helbig case is a precedent which, by the rule of stare decisis, is binding upon this court until otherwise

determined by proper authority.

In the decision rendered by the same judge, he concluded with the following language:

In the United States such publications are usually not punishable as criminal offense, and little importance

is attached to them, because they are generally the result of political controversy and are usually

regarded as more or less colored or exaggerated. Attacks of this character upon a legislative body are not

punishable, under the Libel Law. Although such publications are reprehensible, yet this court feels some

aversion to the application of the provision of law under which this case was filed. Our Penal Code has

come to us from the Spanish regime. Article 256 of that Code prescribes punishment for persons who use

insulting language about Ministers of the Crown or other "authority." The King of Spain doubtless left the

need of such protection to his ministers and others in authority in the Philippines as well as in Spain.

Hence, the article referred to was made applicable here. Notwithstanding the change of sovereignty, our

Supreme Court, in a majority decision, has held that this provision is still in force, and that one who made

an insulting remark about the President of the United States was punishable under it. (U.S. vs. Helbig,

supra.) If it applicable in that case, it would appear to be applicable in this case. Hence, said article 256

must be enforced, without fear or favor, until it shall be repealed or superseded by other legislation, or

until the Supreme Court shall otherwise determine.

In view of the foregoing considerations, the court finds the defendant guilty as charged in the information

and under article 256 of their Penal Code sentences him to suffer two months and one day of arresto

mayor and the accessory penalties prescribed by law, and to pay the costs of both instances.

The fifteen errors assigned by the defendant and appellant, reenforced by an extensive brief, and

eloquent oral argument made in his own behalf and by his learned counsel, all reduce themselves to the

pertinent and decisive question which was announced in the beginning of this decision.



It will be noted in the first place that the trial judge considered himself bound to follow the rule

announced in the case of United States vs. Helbig (R. G. No. 14705, 1

not published). In that case, the

accused was charged with having said, "To hell with the President and his proclamations, or words to that

effect," in violation of article 256 of the Penal Code. He was found guilty in a judgment rendered by the

Court of First Instance of Manila and again on appeal to the Supreme Court, with the writer of the instant

decision dissenting on two principal grounds: (1) That the accused was deprived of the constitutional right

of cross-examination, and (2) that article 256 of the Spanish Penal Code is no longer in force.Subsequently, on a motion of reconsideration, the court, being of the opinion that the Court of First

Instance had committed a prejudicial error in depriving the accused of his right to cross-examine a

principal witness, set aside the judgment affirming the judgment appealed from and ordered the return of

the record to the court of origin for the celebration of a new trial. Whether such a trial was actually had, is

not known, but at least, the record in the Helbig case has never again been elevated to this court.

There may perchance exist some doubt as to the authority of the decision in the Helbig case, in view of

the circumstances above described. This much, however, is certain: The facts of the Helbig case and the

case before us, which we may term the Perfecto case, are different, for in the first case there was an oral

defamation, while in the second there is a written defamation. Not only this, but a new point which,

under the facts, could not have been considered in the Helbig case, is, in the Perfecto case, urged upon

the court. And, finally, as is apparent to all, the appellate court is not restrained, as was the trial court, by

strict adherence to a former decision. We much prefer to resolve the question before us unhindered by

references to the Helbig decision.

This is one of those cases on which a variety of opinions all leading to the same result can be had. A

majority of the court are of the opinion that the Philippine Libel Law, Act No. 277, has had the effect of

repealing so much of article 256 of the Penal Code as relates to written defamation, abuse, or insult, and

that under the information and the facts, the defendant is neither guilty of a violation of article 256 of the

Penal Code, nor of the Libel Law. The view of the Chief Justice is that the accused should be acquitted for

the reason that the facts alleged in the information do not constitute a violation of article 156 of the Penal

Code. Three members of the court believe that article 256 was abrogated completely by the change from

Spanish to American sovereignty over the Philippines and is inconsistent with democratic principles of

government.

Without prejudice to the right of any member of the court to explain his position, we will discuss the two

main points just mentioned.

1. Effect of the Philippine Libel Law, Act No. 277, on article 256 of the Spanish Penal Code . — The Libel

Law, Act No. 277, was enacted by the Philippine Commission shortly after organization of this legislative

body. Section 1 defines libel as a "malicious defamation, expressed either in writing, printing, or by signs

or pictures, or the like, or public theatrical exhibitions, tending to blacken the memory of one who is dead

or to impeach the honesty, virtue, or reputation, or publish the alleged or natural deffects of one who is

alive, and thereby expose him to public hatred, contempt or ridicule." Section 13 provides that "All laws

and parts of laws now in force, so far as the same may be in conflict herewith, are hereby repealed. . . ."

That parts of laws in force in 1901 when the Libel Law took effect, were in conflict therewith, and that theLibel Law abrogated certain portion of the Spanish Penal Code, cannot be gainsaid. Title X of Book II of the

Penal Code, covering the subjects of calumny and insults, must have been particularly affected by the

Libel Law. Indeed, in the early case of Pardo de Tavera vs. Garcia Valdez ([1902], 1. Phil., 468), the

Supreme Court spoke of the Libel Law as " reforming the preexisting Spanish law on the subject of

calumnia and injuria." Recently, specific attention was given to the effect of the Libel Law on the

provisions of the Penal Code, dealing with calumny and insults, and it was found that those provisions of

the Penal Code on the subject of calumny and insults in which the elements of writing an publicity

entered, were abrogated by the Libel Law. (People vs. Castro [1922], p. 842, ante.)



The Libel Law must have had the same result on other provisions of the Penal Code, as for instance article

256.

The facts here are that the editor of a newspaper published an article, naturally in writing, which may

have had the tendency to impeach the honesty, virtue, or reputation of members of the Philippine

Senate, thereby possibly exposing them to public hatred, contempt, or ridicule, which is exactly libel, as

defined by the Libel Law. Sir J. F. Stephen is authority for the statement that a libel is indictable whendefaming a "body of persons definite and small enough for individual members to be recognized as such,

in or by means of anything capable of being a libel." (Digest of Criminal Law, art. 267.) But in the United

States, while it may be proper to prosecute criminally the author of a libel charging a legislator with

corruption, criticisms, no matter how severe, on a legislature, are within the range of the liberty of the

press, unless the intention and effect be seditious. (3 Wharton's Criminal Law, p. 2131.) With these facts

and legal principles in mind, recall that article 256 begins: Any person who, by . . . writing, shall defame,

abuse, or insult any Minister of the Crown or other person in authority," etc.

The Libel Law is a complete and comprehensive law on the subject of libel. The well-known rule of

statutory construction is, that where the later statute clearly covers the old subject-matter of antecedent

acts, and it plainly appears to have been the purpose of the legislature to give expression in it to the

whole law on the subject, previous laws are held to be repealed by necessary implication. (1 Lewis'Sutherland Statutory Construction, p. 465.) For identical reasons, it is evident that Act No. 277 had the

effect so much of this article as punishes defamation, abuse, or insults by writing.

Act No. 292 of the Philippine Commission, the Treason and Sedition Law, may also have affected article

256, but as to this point, it is not necessary to make a pronouncement.

2. Effect of the change from Spanish to Amercian sevoreignty over the Philippine son article 256 of the

Spanish Penal Code. — Appellant's main proposition in the lower court and again energetically pressed in

the appellate court was that article 256 of the Spanish Penal Code is not now in force because abrogated

by the change from Spanish to American sovereignty over the Philippines and because inconsistent with

democratic principles of government. This view was indirectly favored by the trial judge, and, as before

stated, is the opinion of three members of this court.

Article 256 is found in Chapter V of title III of Book II of the Spanish Penal Code. Title I of Book II punishes

the crimes of treason, crimes that endanger the peace or independence of the state, crimes against

international law, and the crime of piracy. Title II of the same book punishes the crimes of lese majeste,

crimes against the Cortes and its members and against the council of ministers, crimes against the form of

government, and crimes committed on the occasion of the exercise of rights guaranteed by the

fundamental laws of the state, including crime against religion and worship. Title III of the same Book, in

which article 256 is found, punishes the crimes of rebellion, sedition, assaults upon persons in authority,

and their agents, and contempts, insults, injurias, and threats against persons in authority, and insults,

injurias, and threats against their agents and other public officers, the last being the title to Chapter V.

The first two articles in Chapter V define and punish the offense of contempt committed by any one who

shall be word or deed defame, abuse, insult, or threathen a minister of the crown, or any person in

authority. The with an article condemning challenges to fight duels intervening, comes article 256, nowbeing weighed in the balance. It reads as follows: "Any person who, by word, deed, or writing, shall

defame, abuse, or insult any Minister of the Crown or other person in authority , while engaged in the

performance of official duties, or by reason of such performance, provided that the offensive minister or

person, or the offensive writing be not addressed to him, shall suffer the penalty of arresto mayor ," —

that is, the defamation, abuse, or insult of any Minister of the Crown of the Monarchy of Spain (for there

could not be a Minister of the Crown in the United States of America), or other person in authority in the

Monarchy of Spain.



It cannot admit of doubt that all those provisions of the Spanish Penal Code having to do with such

subjects as treason, lese majeste, religion and worship, rebellion, sedition, and contempts of ministers of

the crown, are not longer in force. Our present task, therefore, is a determination of whether article 256

has met the same fate, or, more specifically stated, whether it is in the nature of a municipal law or

political law, and is consistent with the Constitution and laws of the United States and the characteristics

and institutions of the American Government.

It is a general principle of the public law that on acquisition of territory the previous political relations of

the ceded region are totally abrogated. "Political" is here used to denominate the laws regulating the

relations sustained by the inhabitants to the sovereign. (American Insurance Co. vs. Canter [1828], 1 Pet.,

511; Chicago, Rock Island and Pacific Railway Co. vs. McGlinn [1885], 114 U.S., 542; Roa vs. Collector of

Customs [1912], 23 Phil., 315.) Mr. Justice Field of the United States Supreme Court stated the obvious

when in the course of his opinion in the case of Chicago, Rock Island and Pacific Railway Co. vs. McGlinn,

supra, he said: "As a matter of course, all laws, ordinances and regulations in conflict with the political

character, institutions and Constitution of the new government are at once displaced. Thus, upon a

cession of political jurisdiction and legislative power — and the latter is involved in the former — to the

United States, the laws of the country in support of an established religion or abridging the freedom of the

press, or authorizing cruel and unusual punishments, and he like, would at once cease to be of obligatory

force without any declaration to that effect." To quote again from the United States Supreme Court: " It

cannot be admitted that the King of Spain could, by treaty or otherwise, impart to the United States any of

his royal prerogatives; and much less can it be admitted that they have capacity to receive or power to

exercise them. Every nation acquiring territory, by treaty or otherwise, must hold it subject to the

Constitution and laws of its own government, and not according to those of the government ceding it."

(Pollard vs. Hagan [1845], 3 Hos., 210.)

On American occupation of the Philippines, by instructions of the President to the Military Commander

dated May 28, 1898, and by proclamation of the latter, the municipal laws of the conquered territory

affecting private rights of person and property and providing for the punishment of crime were nominally

continued in force in so far as they were compatible with the new order of things. But President McKinley,

in his instructions to General Merritt, was careful to say: "The first effect of the military occupation of the

enemy's territory is the severance of the former political relation of the inhabitants and the establishment

of a new political power." From that day to this, the ordinarily it has been taken for granted that theprovisions under consideration were still effective. To paraphrase the language of the United States

Supreme Court in Weems vs. United States ([1910], 217 U. S., 349), there was not and could not be,

except as precise questions were presented, a careful consideration of the codal provisions and a

determination of the extent to which they accorded with or were repugnant to the "'great principles of

liberty and law' which had been 'made the basis of our governmental system.' " But when the question has

been squarely raised, the appellate court has been forced on occasion to hold certain portions of the

Spanish codes repugnant t democratic institutions and American constitutional principles. (U.S. vs. Sweet

[1901], 1 Phil., 18; U.S. vs. Balcorta [1913], 25 Phil., 273; U.S. vs. Balcorta [1913], 25 Phil., 533; Weems vs.

U.S., supra.)

The nature of the government which has been set up in the Philippines under American sovereignty was

outlined by President McKinley in that Magna Charta of Philippine liberty, his instructions to theCommission, of April 7, 1900. In part, the President said:

In all the forms of government and administrative provisions which they are authorized to prescribe, the

Commission should bear in mind that he government which they are establishing is designed not for our

satisfaction or for the expression of our theoretical views, but for the happiness, peace, and prosperity of

the people of the Philippine Islands, and the measures adopted should be made to conform to their

customs, their habits, and even their prejudices, to the fullest extent consistent with the accomplishment

of the indispensable requisites of just and effective government. At the same time the Commission should



bear in mind, and the people of the Islands should be made plainly to understand, that there are certain

great principles of government which have been made the basis of our governmental system, which we

deem essential to the rule of law and the maintenance of individual freedom, and of which they have,

unfortunately, been denied the experience possessed by us; that there are also certain practical rules of

government which we have found to be essential to the preservation of these great principles of liberty

and law, and that these principles and these rules of government must be established and maintained in

their islands for the sake of their liberty and happiness , however much they may conflict with the customsor laws of procedure with which they are familiar. It is evident that the most enligthened thought of the

Philippine Islands fully appreciates the importance of these principles and rules, and they will inevitably

within a short time command universal assent.

The courts have naturally taken the same view. Mr. Justice Elliott, speaking for our Supreme Court, in the

case of United States vs. Bull ([1910], 15 Phil., 7), said: "The President and Congress framed the

government on the model with which American are familiar, and which has proven best adapted for the

advancement of the public interests and the protection of individual rights and privileges."

Therefore, it has come with somewhat of a shock to hear the statement made that the happiness, peace,

and prosperity of the people of the Philippine Islands and their customs, habits, and prejudices, to follow

the language of President McKinley, demand obeisance to authority, and royal protection for thatauthority.

According to our view, article 256 of the Spanish Penal Code was enacted by the Government of Spain to

protect Spanish officials who were the representatives of the King. With the change of sovereignty, a new

government, and a new theory of government, as set up in the Philippines. It was in no sense a

continuation of the old, although merely for convenience certain of the existing institutions and laws were

continued. The demands which the new government made, and makes, on the individual citizen are

likewise different. No longer is there a Minister of the Crown or a person in authority of such exalted

position that the citizen must speak of him only with bated breath. " In the eye of our Constitution and

laws, every man is a sovereign, a ruler and a freeman, and has equal rights with every other man . We have

no rank or station, except that of respectability and intelligence as opposed to indecency and ignorance,

and the door to this rank stands open to every man to freely enter and abide therein, if he is qualified,

and whether he is qualified or not depends upon the life and character and attainments and conduct of

each person for himself. Every man may lawfully do what he will, so long as it is not malum in se or malum

prohibitum or does not infringe upon the qually sacred rights of others." (State vs. Shepherd [1903], 177

Mo., 205; 99 A. S. R., 624.)

It is true that in England, from which so many of the laws and institutions of the United States are derived,

there were once statutes of scandalum magnatum, under which words which would not be actionable if

spoken of an ordinary subject were made actionable if spoken of a peer of the realm or of any of the great

officers of the Crown, without proof of any special damage. The Crown of England, unfortunately, took a

view less tolerant that that of other sovereigns, as for instance, the Emperors Augustus, Caesar, and

Tiberius. These English statutes have, however, long since, become obsolete, while in the United States,

the offense of scandalum magnatum is not known. In the early days of the American Republic, a sedition

law was enacted, making it an offense to libel the Government, the Congress, or the President of theUnited States, but the law met with so much popular disapproval, that it was soon repealed. " In this

country no distinction as to persons is recognized , and in practice a person holding a high office is

regarded as a target at whom any person may let fly his poisonous words. High official position, instead of

affording immunity from slanderous and libelous charges, seems rather to be regarded as making his

character free plunder for any one who desires to create a senation by attacking it." (Newell, Slander and

Libel, 3d ed., p. 245; Sillars vs. Collier [1890], 151 Mass., 50; 6 L.R.A., 680.)

Article 256 of the Penal Code is contrary to the genius and fundamental principles of the American



character and system of government. The gulf which separates this article from the spirit which inspires

all penal legislation of American origin, is as wide as that which separates a monarchy from a democratic

Republic like that of the United States. This article was crowded out by implication as soon as the United

States established its authority in the Philippine Islands. Penalties out of all proportion to the gravity of

the offense, grounded in a distorted monarchical conception of the nature of political authority, as

opposed to the American conception of the protection of the interests of the public, have been

obliterated by the present system of government in the Islands. 1awph!l.net

From an entirely different point of view, it must be noted that this article punishes contempts against

executive officials, although its terms are broad enough to cover the entire official class. Punishment for

contempt of non-judicial officers has no place in a government based upon American principles. Our

official class is not, as in monarchies, an agent of some authority greater than the people but it is an agent

and servant of the people themselves. These officials are only entitled to respect and obedience when

they are acting within the scope of their authority and jurisdiction. The American system of government is

calculated to enforce respect and obedience where such respect and obedience is due, but never does it

place around the individual who happens to occupy an official position by mandate of the people any

official halo, which calls for drastic punishment for contemptuous remarks.

The crime of lese majeste disappeared in the Philippines with the ratification of the Treaty of Paris.Ministers of the Crown have no place under the American flag.

To summarize, the result is, that all the members of the court are of the opinion, although for different

reasons, that the judgment should be reversed and the defendant and appellant acquitted, with costs de

officio. So ordered.

Ostrand and Johns, JJ., concur.

Separate Opinions

ARAULLO, C.J., concurring:

I concur with the dispositive part of the foregoing decision, that is, with the acquittal of the accused, for

the sole reason that the facts alleged in the information do not constitute a violation of article 256 of the

Penal Code; for although that article is in force with respect to calumny, injuria, or insult, by deed or

word, against an authority in the performance of his duties or by reason thereof, outside of his presence,

it is repealed by the Libel Law in so far as it refers to calumny, injuria, or insult committed against an

authority by writing or printing, as was that inserted in the said information.

ROMUALDEZ, J., concurring:

I concur with the result. I believe that the responsibility of the accused has not been shown either under

article 256 of the Penal Code or under the Libel Law.

I am of the opinion that article 256 of the Penal Code is still in force, except as it refers to "Ministers of

the Crown," whom we do not have in our Government, and to calumny, injuria, or insult, by writing or

printing, committed against an authority in the performance of his duties or by reason thereof, which

portion was repealed by the Libel Law.

Johnson, Street, Avanceña and Villamor, JJ., concur.



PEOPLE OF THE PHILIPPINE ISLANDS vs. GREGORIO PERFECTO (43 Phil 887) Case Digest

Facts:

On September 7, 1920, Mr. Gregorio Perfecto published an article in the newspaper La Nacion regardingthe disappearance of certain documents in the Office of Fernando M. Guerrero, the Secretary of the

Philippine Senate. The article of Mr. Perfecto suggested that the difficulty in finding the perpetrators was

due to an official concealment by the Senate since the missing documents constituted the records of

testimony given by witnesses in the investigation of oil companies. This resulted to a case being filed

against Mr. Perfecto for violation of Article 256 of the Penal Code. He was found guilty by the Municipal

Trial Court and again in the Court of First Instance of Manila. Mr. Perfecto filed an appeal in the Supreme

Court to dismiss the case on the ground that Article 256 was not in force anymore.

Issue:

Will a law be abrogated by the change of Spanish to American Sovereignty over the Philippines?

Ruling:

The Supreme Court held that Article 256 of the Spanish Penal Code was enacted by the Government of

Spain to protect Spanish officials who were representative of the King. With the change of sovereignty, a

new government, and a new theory of government, was set up in the Philippines. It was no sense a

continuation of the old laws. No longer is there a Minister of the Crown or a person in authority of such

exalted position that the citizen must speak of him only in bated breath.

The crime of lese majeste disappeared in the Philippines with the ratification of the Treaty of Paris.

Ministers of the Crown have no place under the American flag.

Judgement is REVERED and the defendant and appellant ACQUITTED.





of each of said Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506 and one-half (1/2) of one-fourth (1/4)

of Lot No. 1154 as belonging to the estate of Francisco Reyes Diaz; (7) Declaring Irene Ondez to be the

exclusive owner of one-half (1/2) of Lot No. 2304 and one-half (1/2) of one-fourth (1/4) of Lot No. 3416;

the remaining one-half (1/2) of Lot 2304 and the remaining one-half (1/2) of one-fourth (1/4) of Lot No.

3416 as belonging to the estate of Francisco Reyes Diaz; (8) Directing the division or partition of the estate

of Francisco Reyes Diaz in such a manner as to give or grant to Irene Ondez, as surviving widow of

Francisco Reyes Diaz, a hereditary share of. one-twelfth (1/12) of the whole estate of Francisco Reyes Diaz(Art. 996 in relation to Art. 892, par 2, New Civil Code), and the remaining portion of the estate to be

divided among the plaintiffs Sinforosa R. Bales, Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela

Reyes, Priscilla Reyes and defendant Bernardita R. Macariola, in such a way that the extent of the total

share of plaintiff Sinforosa R. Bales in the hereditary estate shall not exceed the equivalent of two-fifth

(2/5) of the total share of any or each of the other plaintiffs and the defendant (Art. 983, New Civil Code),

each of the latter to receive equal shares from the hereditary estate, (Ramirez vs. Bautista, 14 Phil. 528;

Diancin vs. Bishop of Jaro, O.G. [3rd Ed.] p. 33); (9) Directing the parties, within thirty days after this

judgment shall have become final to submit to this court, for approval a project of partition of the

hereditary estate in the proportion above indicated, and in such manner as the parties may, by

agreement, deemed convenient and equitable to them taking into consideration the location, kind,

quality, nature and value of the properties involved; (10) Directing the plaintiff Sinforosa R. Bales and

defendant Bernardita R. Macariola to pay the costs of this suit, in the proportion of one-third (1/3) by the

first named and two-thirds (2/3) by the second named; and (I 1) Dismissing all other claims of the parties

[pp 27-29 of Exh. C].

The decision in civil case 3010 became final for lack of an appeal, and on October 16, 1963, a project of

partition was submitted to Judge Asuncion which is marked Exh. A. Notwithstanding the fact that the

project of partition was not signed by the parties themselves but only by the respective counsel of

plaintiffs and defendant, Judge Asuncion approved it in his Order dated October 23, 1963, which for

convenience is quoted hereunder in full:

The parties, through their respective counsels, presented to this Court for approval the following project

of partition:

COMES NOW, the plaintiffs and the defendant in the above-entitled case, to this Honorable Court

respectfully submit the following Project of Partition:

l. The whole of Lots Nos. 1154, 2304 and 4506 shall belong exclusively to Bernardita Reyes Macariola;

2. A portion of Lot No. 3416 consisting of 2,373.49 square meters along the eastern part of the lot shall be

awarded likewise to Bernardita R. Macariola;

3. Lots Nos. 4803, 4892 and 5265 shall be awarded to Sinforosa Reyes Bales;

4. A portion of Lot No. 3416 consisting of 1,834.55 square meters along the western part of the lot shall

likewise be awarded to Sinforosa Reyes-Bales;

5. Lots Nos. 4474 and 4475 shall be divided equally among Luz Reyes Bakunawa, Anacorita Reyes, Ruperto

Reyes, Adela Reyes and Priscilla Reyes in equal shares;

6. Lot No. 1184 and the remaining portion of Lot No. 3416 after taking the portions awarded under item

(2) and (4) above shall be awarded to Luz Reyes Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes

and Priscilla Reyes in equal shares, provided, however that the remaining portion of Lot No. 3416 shall

belong exclusively to Priscilla Reyes.



WHEREFORE, it is respectfully prayed that the Project of Partition indicated above which is made in

accordance with the decision of the Honorable Court be approved.

Tacloban City, October 16, 1963.

(SGD) BONIFACIO RAMO Atty. for the Defendant Tacloban City

(SGD) ZOTICO A. TOLETE Atty. for the Plaintiff Tacloban City

While the Court thought it more desirable for all the parties to have signed this Project of Partition,

nevertheless, upon assurance of both counsels of the respective parties to this Court that the Project of

Partition, as above- quoted, had been made after a conference and agreement of the plaintiffs and the

defendant approving the above Project of Partition, and that both lawyers had represented to the Court

that they are given full authority to sign by themselves the Project of Partition, the Court, therefore,

finding the above-quoted Project of Partition to be in accordance with law, hereby approves the same.

The parties, therefore, are directed to execute such papers, documents or instrument sufficient in form

and substance for the vesting of the rights, interests and participations which were adjudicated to the

respective parties, as outlined in the Project of Partition and the delivery of the respective properties

adjudicated to each one in view of said Project of Partition, and to perform such other acts as are legaland necessary to effectuate the said Project of Partition.

SO ORDERED.

Given in Tacloban City, this 23rd day of October, 1963.

(SGD) ELIAS B. ASUNCION Judge

EXH. B.

The above Order of October 23, 1963, was amended on November 11, 1963, only for the purpose of

giving authority to the Register of Deeds of the Province of Leyte to issue the corresponding transfercertificates of title to the respective adjudicatees in conformity with the project of partition (see Exh. U).

One of the properties mentioned in the project of partition was Lot 1184 or rather one-half thereof with

an area of 15,162.5 sq. meters. This lot, which according to the decision was the exclusive property of the

deceased Francisco Reyes, was adjudicated in said project of partition to the plaintiffs Luz, Anacorita

Ruperto, Adela, and Priscilla all surnamed Reyes in equal shares, and when the project of partition was

approved by the trial court the adjudicatees caused Lot 1184 to be subdivided into five lots denominated

as Lot 1184-A to 1184-E inclusive (Exh. V).

Lot 1184-D was conveyed to Enriqueta D. Anota, a stenographer in Judge Asuncion's court (Exhs. F, F-1

and V-1), while Lot 1184-E which had an area of 2,172.5556 sq. meters was sold on July 31, 1964 to Dr.

Arcadio Galapon (Exh. 2) who was issued transfer certificate of title No. 2338 of the Register of Deeds ofthe city of Tacloban (Exh. 12).

On March 6, 1965, Dr. Arcadio Galapon and his wife Sold a portion of Lot 1184-E with an area of around

1,306 sq. meters to Judge Asuncion and his wife, Victoria S. Asuncion (Exh. 11), which particular portion

was declared by the latter for taxation purposes (Exh. F).

On August 31, 1966, spouses Asuncion and spouses Galapon conveyed their respective shares and

interest in Lot 1184-E to "The Traders Manufacturing and Fishing Industries Inc." (Exit 15 & 16). At the



time of said sale the stockholders of the corporation were Dominador Arigpa Tan, Humilia Jalandoni Tan,

Jaime Arigpa Tan, Judge Asuncion, and the latter's wife, Victoria S. Asuncion, with Judge Asuncion as the

President and Mrs. Asuncion as the secretary (Exhs. E-4 to E-7). The Articles of Incorporation of "The

Traders Manufacturing and Fishing Industries, Inc." which we shall henceforth refer to as "TRADERS" were

registered with the Securities and Exchange Commission only on January 9, 1967 (Exh. E) [pp. 378-385,

rec.].

Complainant Bernardita R. Macariola filed on August 9, 1968 the instant complaint dated August 6, 1968

alleging four causes of action, to wit: [1] that respondent Judge Asuncion violated Article 1491, paragraph

5, of the New Civil Code in acquiring by purchase a portion of Lot No. 1184-E which was one of those

properties involved in Civil Case No. 3010 decided by him; [2] that he likewise violated Article 14,

paragraphs I and 5 of the Code of Commerce, Section 3, paragraph H, of R.A. 3019, otherwise known as

the Anti-Graft and Corrupt Practices Act, Section 12, Rule XVIII of the Civil Service Rules, and Canon 25 of

the Canons of Judicial Ethics, by associating himself with the Traders Manufacturing and Fishing

Industries, Inc., as a stockholder and a ranking officer while he was a judge of the Court of First Instance of

Leyte; [3] that respondent was guilty of coddling an impostor and acted in disregard of judicial decorum

by closely fraternizing with a certain Dominador Arigpa Tan who openly and publicly advertised himself as

a practising attorney when in truth and in fact his name does not appear in the Rolls of Attorneys and is

not a member of the Philippine Bar; and [4] that there was a culpable defiance of the law and utter

disregard for ethics by respondent Judge (pp. 1-7, rec.).

Respondent Judge Asuncion filed on September 24, 1968 his answer to which a reply was filed on October

16, 1968 by herein complainant. In Our resolution of October 28, 1968, We referred this case to then

Justice Cecilia Muñoz Palma of the Court of Appeals, for investigation, report and recommendation. After

hearing, the said Investigating Justice submitted her report dated May 27, 1971 recommending that

respondent Judge should be reprimanded or warned in connection with the first cause of action alleged in

the complaint, and for the second cause of action, respondent should be warned in case of a finding that

he is prohibited under the law to engage in business. On the third and fourth causes of action, Justice

Palma recommended that respondent Judge be exonerated.

The records also reveal that on or about November 9 or 11, 1968 (pp. 481, 477, rec.), complainant herein

instituted an action before the Court of First Instance of Leyte, entitled "Bernardita R. Macariola, plaintiff,

versus Sinforosa R. Bales, et al ., defendants," which was docketed as Civil Case No. 4235, seeking the

annulment of the project of partition made pursuant to the decision in Civil Case No. 3010 and the two

orders issued by respondent Judge approving the same, as well as the partition of the estate and the

subsequent conveyances with damages. It appears, however, that some defendants were dropped from

the civil case. For one, the case against Dr. Arcadio Galapon was dismissed because he was no longer a

real party in interest when Civil Case No. 4234 was filed, having already conveyed on March 6, 1965 a

portion of lot 1184-E to respondent Judge and on August 31, 1966 the remainder was sold to the Traders

Manufacturing and Fishing Industries, Inc. Similarly, the case against defendant Victoria Asuncion was

dismissed on the ground that she was no longer a real party in interest at the time the aforesaid Civil Case

No. 4234 was filed as the portion of Lot 1184 acquired by her and respondent Judge from Dr. Arcadio

Galapon was already sold on August 31, 1966 to the Traders Manufacturing and Fishing industries, Inc.

Likewise, the cases against defendants Serafin P. Ramento, Catalina Cabus, Ben Barraza Go, Jesus Perez,Traders Manufacturing and Fishing Industries, Inc., Alfredo R. Celestial and Pilar P. Celestial, Leopoldo

Petilla and Remedios Petilla, Salvador Anota and Enriqueta Anota and Atty. Zotico A. Tolete were

dismissed with the conformity of complainant herein, plaintiff therein, and her counsel.

On November 2, 1970, Judge Jose D. Nepomuceno of the Court of First Instance of Leyte, who was

directed and authorized on June 2, 1969 by the then Secretary (now Minister) of Justice and now Minister

of National Defense Juan Ponce Enrile to hear and decide Civil Case No. 4234, rendered a decision, the

dispositive portion of which reads as follows:



A. IN THE CASE AGAINST JUDGE ELIAS B. ASUNCION

(1) declaring that only Branch IV of the Court of First Instance of Leyte has jurisdiction to take cognizance

of the issue of the legality and validity of the Project of Partition [Exhibit "B"] and the two Orders [Exhibits

"C" and "C- 3"] approving the partition;

(2) dismissing the complaint against Judge Elias B. Asuncion;

(3) adjudging the plaintiff, Mrs. Bernardita R. Macariola to pay defendant Judge Elias B. Asuncion,

(a) the sum of FOUR HUNDRED THOUSAND PESOS [P400,000.00] for moral damages;

(b) the sum of TWO HUNDRED THOUSAND PESOS [P200,000.001 for exemplary damages;

(c) the sum of FIFTY THOUSAND PESOS [P50,000.00] for nominal damages; and

(d) he sum of TEN THOUSAND PESOS [PI0,000.00] for Attorney's Fees.

B. IN THE CASE AGAINST THE DEFENDANT MARIQUITA VILLASIN, FOR HERSELF AND FOR THE HEIRS OF

THE DECEASED GERARDO VILLASIN —

(1) Dismissing the complaint against the defendants Mariquita Villasin and the heirs of the deceased

Gerardo Villasin;

(2) Directing the plaintiff to pay the defendants Mariquita Villasin and the heirs of Gerardo Villasin the

cost of the suit.

C. IN THE CASE AGAINST THE DEFENDANT SINFOROSA R. BALES, ET AL., WHO WERE PLAINTIFFS IN CIVIL

CASE NO. 3010 —

(1) Dismissing the complaint against defendants Sinforosa R. Bales, Adela R. Herrer, Priscilla R. Solis, Luz R.

Bakunawa, Anacorita R. Eng and Ruperto O. Reyes.

D. IN THE CASE AGAINST DEFENDANT BONIFACIO RAMO —

(1) Dismissing the complaint against Bonifacio Ramo;

(2) Directing the plaintiff to pay the defendant Bonifacio Ramo the cost of the suit.

SO ORDERED [pp. 531-533, rec.]

It is further disclosed by the record that the aforesaid decision was elevated to the Court of Appeals uponperfection of the appeal on February 22, 1971.

I

WE find that there is no merit in the contention of complainant Bernardita R. Macariola, under her first

cause of action, that respondent Judge Elias B. Asuncion violated Article 1491, paragraph 5, of the New

Civil Code in acquiring by purchase a portion of Lot No. 1184-E which was one of those properties

involved in Civil Case No. 3010. 'That Article provides:



Article 1491. The following persons cannot acquire by purchase, even at a public or judicial action, either

in person or through the mediation of another:

xxx xxx xxx

(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and other officers and

employees connected with the administration of justice, the property and rights in litigation or leviedupon an execution before the court within whose jurisdiction or territory they exercise their respective

functions; this prohibition includes the act of acquiring by assignment and shall apply to lawyers, with

respect to the property and rights which may be the object of any litigation in which they may take part

by virtue of their profession [emphasis supplied].

The prohibition in the aforesaid Article applies only to the sale or assignment of the property which is the

subject of litigation to the persons disqualified therein. WE have already ruled that "... for the prohibition

to operate, the sale or assignment of the property must take place during the pendency of the litigation

involving the property" (The Director of Lands vs. Ababa et al., 88 SCRA 513, 519 [1979], Rosario vda. de

Laig vs. Court of Appeals, 86 SCRA 641, 646 [1978]).

In the case at bar, when the respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E, thedecision in Civil Case No. 3010 which he rendered on June 8, 1963 was already final because none of the

parties therein filed an appeal within the reglementary period; hence, the lot in question was no longer

subject of the litigation. Moreover, at the time of the sale on March 6, 1965, respondent's order dated

October 23, 1963 and the amended order dated November 11, 1963 approving the October 16, 1963

project of partition made pursuant to the June 8, 1963 decision, had long become final for there was no

appeal from said orders.

Furthermore, respondent Judge did not buy the lot in question on March 6, 1965 directly from the

plaintiffs in Civil Case No. 3010 but from Dr. Arcadio Galapon who earlier purchased on July 31, 1964 Lot

1184-E from three of the plaintiffs, namely, Priscilla Reyes, Adela Reyes, and Luz R. Bakunawa after the

finality of the decision in Civil Case No. 3010. It may be recalled that Lot 1184 or more specifically one-half

thereof was adjudicated in equal shares to Priscilla Reyes, Adela Reyes, Luz Bakunawa, Ruperto Reyes and

Anacorita Reyes in the project of partition, and the same was subdivided into five lots denominated as Lot

1184-A to 1184-E. As aforestated, Lot 1184-E was sold on July 31, 1964 to Dr. Galapon for which he was

issued TCT No. 2338 by the Register of Deeds of Tacloban City, and on March 6, 1965 he sold a portion of

said lot to respondent Judge and his wife who declared the same for taxation purposes only. The

subsequent sale on August 31, 1966 by spouses Asuncion and spouses Galapon of their respective shares

and interest in said Lot 1184-E to the Traders Manufacturing and Fishing Industries, Inc., in which

respondent was the president and his wife was the secretary, took place long after the finality of the

decision in Civil Case No. 3010 and of the subsequent two aforesaid orders therein approving the project

of partition.

While it appears that complainant herein filed on or about November 9 or 11, 1968 an action before the

Court of First Instance of Leyte docketed as Civil Case No. 4234, seeking to annul the project of partition

and the two orders approving the same, as well as the partition of the estate and the subsequentconveyances, the same, however, is of no moment.

The fact remains that respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E from Dr.

Arcadio Galapon; hence, after the finality of the decision which he rendered on June 8, 1963 in Civil Case

No. 3010 and his two questioned orders dated October 23, 1963 and November 11, 1963. Therefore, the

property was no longer subject of litigation.



The subsequent filing on November 9, or 11, 1968 of Civil Case No. 4234 can no longer alter, change or

affect the aforesaid facts — that the questioned sale to respondent Judge, now Court of Appeals Justice,

was effected and consummated long after the finality of the aforesaid decision or orders.

Consequently, the sale of a portion of Lot 1184-E to respondent Judge having taken place over one year

after the finality of the decision in Civil Case No. 3010 as well as the two orders approving the project of

partition, and not during the pendency of the litigation, there was no violation of paragraph 5, Article1491 of the New Civil Code.

It is also argued by complainant herein that the sale on July 31, 1964 of Lot 1184-E to Dr. Arcadio Galapon

by Priscilla Reyes, Adela Reyes and Luz R. Bakunawa was only a mere scheme to conceal the illegal and

unethical transfer of said lot to respondent Judge as a consideration for the approval of the project of

partition. In this connection, We agree with the findings of the Investigating Justice thus:

And so we are now confronted with this all-important question whether or not the acquisition by

respondent of a portion of Lot 1184-E and the subsequent transfer of the whole lot to "TRADERS" of

which respondent was the President and his wife the Secretary, was intimately related to the Order of

respondent approving the project of partition, Exh. A.

Respondent vehemently denies any interest or participation in the transactions between the Reyeses and

the Galapons concerning Lot 1184-E, and he insists that there is no evidence whatsoever to show that Dr.

Galapon had acted, in the purchase of Lot 1184-E, in mediation for him and his wife. (See p. 14 of

Respondent's Memorandum).

xxx xxx xxx

On this point, I agree with respondent that there is no evidence in the record showing that Dr. Arcadio

Galapon acted as a mere "dummy" of respondent in acquiring Lot 1184-E from the Reyeses. Dr. Galapon

appeared to this investigator as a respectable citizen, credible and sincere, and I believe him when he

testified that he bought Lot 1184-E in good faith and for valuable consideration from the Reyeses without

any intervention of, or previous understanding with Judge Asuncion (pp. 391- 394, rec.).

On the contention of complainant herein that respondent Judge acted illegally in approving the project of

partition although it was not signed by the parties, We quote with approval the findings of the

Investigating Justice, as follows:

1. I agree with complainant that respondent should have required the signature of the parties more

particularly that of Mrs. Macariola on the project of partition submitted to him for approval; however,

whatever error was committed by respondent in that respect was done in good faith as according to

Judge Asuncion he was assured by Atty. Bonifacio Ramo, the counsel of record of Mrs. Macariola, That he

was authorized by his client to submit said project of partition, (See Exh. B and tsn p. 24, January 20,

1969). While it is true that such written authority if there was any, was not presented by respondent in

evidence, nor did Atty. Ramo appear to corroborate the statement of respondent, his affidavit being the

only one that was presented as respondent's Exh. 10, certain actuations of Mrs. Macariola lead this

investigator to believe that she knew the contents of the project of partition, Exh. A, and that she gave

her conformity thereto. I refer to the following documents:

1) Exh. 9 — Certified true copy of OCT No. 19520 covering Lot 1154 of the Tacloban Cadastral Survey in

which the deceased Francisco Reyes holds a "1/4 share" (Exh. 9-a). On tills certificate of title the Order

dated November 11, 1963, (Exh. U) approving the project of partition was duly entered and registered on

November 26, 1963 (Exh. 9-D);



2) Exh. 7 — Certified copy of a deed of absolute sale executed by Bernardita Reyes Macariola on October

22, 1963, conveying to Dr. Hector Decena the one-fourth share of the late Francisco Reyes-Diaz in Lot

1154. In this deed of sale the vendee stated that she was the absolute owner of said one-fourth share, the

same having been adjudicated to her as her share in the estate of her father Francisco Reyes Diaz as per

decision of the Court of First Instance of Leyte under case No. 3010 (Exh. 7-A). The deed of sale was duly

registered and annotated at the back of OCT 19520 on December 3, 1963 (see Exh. 9-e).

In connection with the abovementioned documents it is to be noted that in the project of partition dated

October 16, 1963, which was approved by respondent on October 23, 1963, followed by an amending

Order on November 11, 1963, Lot 1154 or rather 1/4 thereof was adjudicated to Mrs. Macariola. It is this

1/4 share in Lot 1154 which complainant sold to Dr. Decena on October 22, 1963, several days after the

preparation of the project of partition.

Counsel for complainant stresses the view, however, that the latter sold her one-fourth share in Lot 1154

by virtue of the decision in Civil Case 3010 and not because of the project of partition, Exh. A. Such

contention is absurd because from the decision, Exh. C, it is clear that one-half of one- fourth of Lot 1154

belonged to the estate of Francisco Reyes Diaz while the other half of said one-fourth was the share of

complainant's mother, Felisa Espiras; in other words, the decision did not adjudicate the whole of the

one-fourth of Lot 1154 to the herein complainant (see Exhs. C-3 & C-4). Complainant became the ownerof the entire one-fourth of Lot 1154 only by means of the project of partition, Exh. A. Therefore, if Mrs.

Macariola sold Lot 1154 on October 22, 1963, it was for no other reason than that she was wen aware of

the distribution of the properties of her deceased father as per Exhs. A and B. It is also significant at this

point to state that Mrs. Macariola admitted during the cross-examination that she went to Tacloban City

in connection with the sale of Lot 1154 to Dr. Decena (tsn p. 92, November 28, 1968) from which we can

deduce that she could not have been kept ignorant of the proceedings in civil case 3010 relative to the

project of partition.

Complainant also assails the project of partition because according to her the properties adjudicated to

her were insignificant lots and the least valuable. Complainant, however, did not present any direct and

positive evidence to prove the alleged gross inequalities in the choice and distribution of the real

properties when she could have easily done so by presenting evidence on the area, location, kind, the

assessed and market value of said properties. Without such evidence there is nothing in the record to

show that there were inequalities in the distribution of the properties of complainant's father (pp.

386389, rec.).

Finally, while it is. true that respondent Judge did not violate paragraph 5, Article 1491 of the New Civil

Code in acquiring by purchase a portion of Lot 1184-E which was in litigation in his court, it was, however,

improper for him to have acquired the same. He should be reminded of Canon 3 of the Canons of Judicial

Ethics which requires that: "A judge's official conduct should be free from the appearance of impropriety,

and his personal behavior, not only upon the bench and in the performance of judicial duties, but also in

his everyday life, should be beyond reproach." And as aptly observed by the Investigating Justice: "... it

was unwise and indiscreet on the part of respondent to have purchased or acquired a portion of a piece

of property that was or had been in litigation in his court and caused it to be transferred to a corporation

of which he and his wife were ranking officers at the time of such transfer. One who occupies an exaltedposition in the judiciary has the duty and responsibility of maintaining the faith and trust of the citizenry

in the courts of justice, so that not only must he be truly honest and just, but his actuations must be such

as not give cause for doubt and mistrust in the uprightness of his administration of justice. In this

particular case of respondent, he cannot deny that the transactions over Lot 1184-E are damaging and

render his actuations open to suspicion and distrust. Even if respondent honestly believed that Lot 1184-E

was no longer in litigation in his court and that he was purchasing it from a third person and not from the

parties to the litigation, he should nonetheless have refrained from buying it for himself and transferring

it to a corporation in which he and his wife were financially involved, to avoid possible suspicion that his



acquisition was related in one way or another to his official actuations in civil case 3010. The conduct of

respondent gave cause for the litigants in civil case 3010, the lawyers practising in his court, and the

public in general to doubt the honesty and fairness of his actuations and the integrity of our courts of

justice" (pp. 395396, rec.).

II

With respect to the second cause of action, the complainant al leged that respondent Judge violated

paragraphs 1 and 5, Article 14 of the Code of Commerce when he associated himself with the Traders

Manufacturing and Fishing Industries, Inc. as a stockholder and a ranking officer, said corporation having

been organized to engage in business. Said Article provides that:

Article 14 — The following cannot engage in commerce, either in person or by proxy, nor can they hold

any office or have any direct, administrative, or financial intervention in commercial or industrial

companies within the limits of the districts, provinces, or towns in which they discharge their duties:

1. Justices of the Supreme Court, judges and officials of the department of public prosecution in active

service. This provision shall not be applicable to mayors, municipal judges, and municipal prosecuting

attorneys nor to those who by chance are temporarily discharging the functions of judge or prosecutingattorney.

xxx xxx xxx

5. Those who by virtue of laws or special provisions may not engage in commerce in a determinate

territory.

It is Our considered view that although the aforestated provision is incorporated in the Code of

Commerce which is part of the commercial laws of the Philippines, it, however, partakes of the nature of a

political law as it regulates the relationship between the government and certain public officers and

employees, like justices and judges.

Political Law has been defined as that branch of public law which deals with the organization and

operation of the governmental organs of the State and define the relations of the state with the

inhabitants of its territory (People vs. Perfecto, 43 Phil. 887, 897 [1922]). It may be recalled that political

law embraces constitutional law, law of public corporations, administrative law including the law on

public officers and elections. Specifically, Article 14 of the Code of Commerce partakes more of the nature

of an administrative law because it regulates the conduct of certain public officers and employees with

respect to engaging in business: hence, political in essence.

It is significant to note that the present Code of Commerce is the Spanish Code of Commerce of 1885,

with some modifications made by the "Commission de Codificacion de las Provincias de Ultramar," which

was extended to the Philippines by the Royal Decree of August 6, 1888, and took effect as law in this

jurisdiction on December 1, 1888.

Upon the transfer of sovereignty from Spain to the United States and later on from the United States to

the Republic of the Philippines, Article 14 of this Code of Commerce must be deemed to have been

abrogated because where there is change of sovereignty, the political laws of the former sovereign,

whether compatible or not with those of the new sovereign, are automatically abrogated, unless they are

expressly re-enacted by affirmative act of the new sovereign.

Thus, We held in Roa vs. Collector of Customs (23 Phil. 315, 330, 311 [1912]) that:



By well-settled public law, upon the cession of territory by one nation to another, either following a

conquest or otherwise, ... those laws which are political in their nature and pertain to the prerogatives of

the former government immediately cease upon the transfer of sovereignty. (Opinion, Atty. Gen., July 10,

1899).

While municipal laws of the newly acquired territory not in conflict with the, laws of the new sovereign

continue in force without the express assent or affirmative act of the conqueror, the political laws do not.(Halleck's Int. Law, chap. 34, par. 14). However, such political laws of the prior sovereignty as are not in

conflict with the constitution or institutions of the new sovereign, may be continued in force if the

conqueror shall so declare by affirmative act of the commander-in-chief during the war, or by Congress in

time of peace. (Ely's Administrator vs. United States, 171 U.S. 220, 43 L. Ed. 142). In the case of American

and Ocean Ins. Cos. vs. 356 Bales of Cotton (1 Pet. [26 U.S.] 511, 542, 7 L. Ed. 242), Chief Justice Marshall

said:

On such transfer (by cession) of territory, it has never been held that the relations of the inhabitants with

each other undergo any change. Their relations with their former sovereign are dissolved, and new

relations are created between them and the government which has acquired their territory. The same act

which transfers their country, transfers the allegiance of those who remain in it; and the law which may

be denominated political, is necessarily changed, although that which regulates the intercourse andgeneral conduct of individuals, remains in force, until altered by the newly- created power of the State.

Likewise, in People vs. Perfecto (43 Phil. 887, 897 [1922]), this Court stated that: "It is a general principle

of the public law that on acquisition of territory the previous political relations of the ceded region are

totally abrogated. "

There appears no enabling or affirmative act that continued the effectivity of the aforestated provision of

the Code of Commerce after the change of sovereignty from Spain to the United States and then to the

Republic of the Philippines. Consequently, Article 14 of the Code of Commerce has no legal and binding

effect and cannot apply to the respondent, then Judge of the Court of First Instance, now Associate

Justice of the Court of Appeals.

It is also argued by complainant herein that respondent Judge violated paragraph H, Section 3 of Republic

Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, which provides that:

Sec. 3. Corrupt practices of public officers. — In addition to acts or omissions of public officers already

penalized by existing law, the following shall constitute corrupt practices of any public officer and are

hereby declared to be unlawful:

xxx xxx xxx

(h) Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in

connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by

the Constitution or by any Iaw from having any interest.

Respondent Judge cannot be held liable under the aforestated paragraph because there is no showing

that respondent participated or intervened in his official capacity in the business or transactions of the

Traders Manufacturing and Fishing Industries, Inc. In the case at bar, the business of the corporation in

which respondent participated has obviously no relation or connection with his judicial office. The

business of said corporation is not that kind where respondent intervenes or takes part in his capacity as

Judge of the Court of First Instance. As was held in one case involving the application of Article 216 of the

Revised Penal Code which has a similar prohibition on public officers against directly or indirectly



becoming interested in any contract or business in which it is his official duty to intervene, "(I)t is not

enough to be a public official to be subject to this crime; it is necessary that by reason of his office, he has

to intervene in said contracts or transactions; and, hence, the official who intervenes in contracts or

transactions which have no relation to his office cannot commit this crime.' (People vs. Meneses, C.A. 40

O.G. 11th Supp. 134, cited by Justice Ramon C. Aquino; Revised Penal Code, p. 1174, Vol. 11 [1976]).

It does not appear also from the records that the aforesaid corporation gained any undue advantage in itsbusiness operations by reason of respondent's financial involvement in it, or that the corporation

benefited in one way or another in any case filed by or against it in court. It is undisputed that there was

no case filed in the different branches of the Court of First Instance of Leyte in which the corporation was

either party plaintiff or defendant except Civil Case No. 4234 entitled "Bernardita R. Macariola, plaintiff,

versus Sinforosa O. Bales, et al.," wherein the complainant herein sought to recover Lot 1184-E from the

aforesaid corporation. It must be noted, however, that Civil Case No. 4234 was filed only on November 9

or 11, 1968 and decided on November 2, 1970 by CFI Judge Jose D. Nepomuceno when respondent Judge

was no longer connected with the corporation, having disposed of his interest therein on January 31,

1967.

Furthermore, respondent is not liable under the same paragraph because there is no provision in both the

1935 and 1973 Constitutions of the Philippines, nor is there an existing law expressly prohibiting membersof the Judiciary from engaging or having interest in any lawful business.

It may be pointed out that Republic Act No. 296, as amended, also known as the Judiciary Act of 1948,

does not contain any prohibition to that effect. As a matter of fact, under Section 77 of said law,

municipal judges may engage in teaching or other vocation not involving the practice of law after office

hours but with the permission of the district judge concerned.

Likewise, Article 14 of the Code of Commerce which prohibits judges from engaging in commerce is, as

heretofore stated, deemed abrogated automatically upon the transfer of sovereignty from Spain to

America, because it is political in nature.

Moreover, the prohibition in paragraph 5, Article 1491 of the New Civil Code against the purchase by

judges of a property in litigation before the court within whose jurisdiction they perform their duties,

cannot apply to respondent Judge because the sale of the lot in question to him took place after the

finality of his decision in Civil Case No. 3010 as well as his two orders approving the project of partition;

hence, the property was no longer subject of litigation.

In addition, although Section 12, Rule XVIII of the Civil Service Rules made pursuant to the Civil Service Act

of 1959 prohibits an officer or employee in the civil service from engaging in any private business,

vocation, or profession or be connected with any commercial, credit, agricultural or industrial undertaking

without a written permission from the head of department, the same, however, may not fall within the

purview of paragraph h, Section 3 of the Anti-Graft and Corrupt Practices Act because the last portion of

said paragraph speaks of a prohibition by the Constitution or law on any public officer from having any

interest in any business and not by a mere administrative rule or regulation. Thus, a violation of the

aforesaid rule by any officer or employee in the civil service, that is, engaging in private business without awritten permission from the Department Head may not constitute graft and corrupt practice as defined

by law.

On the contention of complainant that respondent Judge violated Section 12, Rule XVIII of the Civil Service

Rules, We hold that the Civil Service Act of 1959 (R.A. No. 2260) and the Civil Service Rules promulgated

thereunder, particularly Section 12 of Rule XVIII, do not apply to the members of the Judiciary. Under said

Section 12: "No officer or employee shall engage directly in any private business, vocation, or profession

or be connected with any commercial, credit, agricultural or industrial undertaking without a written



permission from the Head of Department ..."

It must be emphasized at the outset that respondent, being a member of the Judiciary, is covered by

Republic Act No. 296, as amended, otherwise known as the Judiciary Act of 1948 and by Section 7, Article

X, 1973 Constitution.

Under Section 67 of said law, the power to remove or dismiss judges was then vested in the President ofthe Philippines, not in the Commissioner of Civil Service, and only on two grounds, namely, serious

misconduct and inefficiency, and upon the recommendation of the Supreme Court, which alone is

authorized, upon its own motion, or upon information of the Secretary (now Minister) of Justice to

conduct the corresponding investigation. Clearly, the aforesaid section defines the grounds and prescribes

the special procedure for the discipline of judges.

And under Sections 5, 6 and 7, Article X of the 1973 Constitution, only the Supreme Court can discipline

judges of inferior courts as well as other personnel of the Judiciary.

It is true that under Section 33 of the Civil Service Act of 1959: "The Commissioner may, for ... violation of

the existing Civil Service Law and rules or of reasonable office regulations, or in the interest of the service,

remove any subordinate officer or employee from the service, demote him in rank, suspend him for notmore than one year without pay or fine him in an amount not exceeding six months' salary." Thus, a

violation of Section 12 of Rule XVIII is a ground for disciplinary action against civil service officers and

employees.

However, judges cannot be considered as subordinate civil service officers or employees subject to the

disciplinary authority of the Commissioner of Civil Service; for, certainly, the Commissioner is not the head

of the Judicial Department to which they belong. The Revised Administrative Code (Section 89) and the

Civil Service Law itself state that the Chief Justice is the department head of the Supreme Court (Sec. 20,

R.A. No. 2260) [1959]); and under the 1973 Constitution, the Judiciary is the only other or second branch

of the government (Sec. 1, Art. X, 1973 Constitution). Besides, a violation of Section 12, Rule XVIII cannot

be considered as a ground for disciplinary action against judges because to recognize the same as

applicable to them, would be adding another ground for the discipline of judges and, as aforestated,

Section 67 of the Judiciary Act recognizes only two grounds for their removal, namely, serious misconduct

and inefficiency.

Moreover, under Section 16(i) of the Civil Service Act of 1959, it is the Commissioner of Civil Service who

has original and exclusive jurisdiction "(T)o decide, within one hundred twenty days, after submission to

it, all administrative cases against permanent officers and employees in the competitive service, and,

except as provided by law, to have final authority to pass upon their removal, separation, and suspension

and upon all matters relating to the conduct, discipline, and efficiency of such officers and employees; and

prescribe standards, guidelines and regulations governing the administration of discipline" (emphasis

supplied). There is no question that a judge belong to the non-competitive or unclassified service of the

government as a Presidential appointee and is therefore not covered by the aforesaid provision. WE have

already ruled that "... in interpreting Section 16(i) of Republic Act No. 2260, we emphasized that only

permanent officers and employees who belong to the classified service come under the exclusive jurisdiction of the Commissioner of Civil Service" (Villaluz vs. Zaldivar, 15 SCRA 710,713 [1965], Ang-Angco

vs. Castillo, 9 SCRA 619 [1963]).

Although the actuation of respondent Judge in engaging in private business by joining the Traders

Manufacturing and Fishing Industries, Inc. as a stockholder and a ranking officer, is not violative of the

provissions of Article 14 of the Code of Commerce and Section 3(h) of the Anti-Graft and Corrupt Practices

Act as well as Section 12, Rule XVIII of the Civil Service Rules promulgated pursuant to the Civil Service Act

of 1959, the impropriety of the same is clearly unquestionable because Canon 25 of the Canons of Judicial



Ethics expressly declares that:

A judge should abstain from making personal investments in enterprises which are apt to be involved in

litigation in his court; and, after his accession to the bench, he should not retain such investments

previously made, longer than a period sufficient to enable him to dispose of them without serious loss. It

is desirable that he should, so far as reasonably possible, refrain from all relations which would normally

tend to arouse the suspicion that such relations warp or bias his judgment, or prevent his impartialattitude of mind in the administration of his judicial duties. ...

WE are not, however, unmindful of the fact that respondent Judge and his wife had withdrawn on January

31, 1967 from the aforesaid corporation and sold their respective shares to third parties, and it appears

also that the aforesaid corporation did not in anyway benefit in any case filed by or against it in court as

there was no case filed in the different branches of the Court of First Instance of Leyte from the time of

the drafting of the Articles of Incorporation of the corporation on March 12, 1966, up to its incorporation

on January 9, 1967, and the eventual withdrawal of respondent on January 31, 1967 from said

corporation. Such disposal or sale by respondent and his wife of their shares in the corporation only 22

days after the incorporation of the corporation, indicates that respondent realized that early that their

interest in the corporation contravenes the aforesaid Canon 25. Respondent Judge and his wife therefore

deserve the commendation for their immediate withdrawal from the firm after its incorporation andbefore it became involved in any court litigation

III

With respect to the third and fourth causes of action, complainant alleged that respondent was guilty of

coddling an impostor and acted in disregard of judicial decorum, and that there was culpable defiance of

the law and utter disregard for ethics. WE agree, however, with the recommendation of the Investigating

Justice that respondent Judge be exonerated because the aforesaid causes of action are groundless, and

WE quote the pertinent portion of her report which reads as follows:

The basis for complainant's third cause of action is the claim that respondent associated and closely

fraternized with Dominador Arigpa Tan who openly and publicly advertised himself as a practising

attorney (see Exhs. I, I-1 and J) when in truth and in fact said Dominador Arigpa Tan does not appear in

the Roll of Attorneys and is not a member of the Philippine Bar as certified to in Exh. K.

The "respondent denies knowing that Dominador Arigpa Tan was an "impostor" and claims that all the

time he believed that the latter was a bona fide member of the bar. I see no reason for disbelieving this

assertion of respondent. It has been shown by complainant that Dominador Arigpa Tan represented

himself publicly as an attorney-at-law to the extent of putting up a signboard with his name and the

words "Attorney-at Law" (Exh. I and 1- 1) to indicate his office, and it was but natural for respondent and

any person for that matter to have accepted that statement on its face value. "Now with respect to the

allegation of complainant that respondent is guilty of fraternizing with Dominador Arigpa Tan to the

extent of permitting his wife to be a godmother of Mr. Tan's child at baptism (Exh. M & M-1), that fact

even if true did not render respondent guilty of violating any canon of judicial ethics as long as his friendly

relations with Dominador A. Tan and family did not influence his official actuations as a judge where saidpersons were concerned. There is no tangible convincing proof that herein respondent gave any undue

privileges in his court to Dominador Arigpa Tan or that the latter benefitted in his practice of law from his

personal relations with respondent, or that he used his influence, if he had any, on the Judges of the other

branches of the Court to favor said Dominador Tan.

Of course it is highly desirable for a member of the judiciary to refrain as much as possible from

maintaining close friendly relations with practising attorneys and litigants in his court so as to avoid

suspicion 'that his social or business relations or friendship constitute an element in determining his



judicial course" (par. 30, Canons of Judicial Ethics), but if a Judge does have social relations, that in itself

would not constitute a ground for disciplinary action unless it be clearly shown that his social relations be

clouded his official actuations with bias and partiality in favor of his friends (pp. 403-405, rec.).

In conclusion, while respondent Judge Asuncion, now Associate Justice of the Court of Appeals, did not

violate any law in acquiring by purchase a parcel of land which was in litigation in his court and in

engaging in business by joining a private corporation during his incumbency as judge of the Court of FirstInstance of Leyte, he should be reminded to be more discreet in his private and business activities,

because his conduct as a member of the Judiciary must not only be characterized with propriety but must

always be above suspicion.

WHEREFORE, THE RESPONDENT ASSOCIATE JUSTICE OF THE COURT OF APPEALS IS HEREBY REMINDED TO

BE MORE DISCREET IN HIS PRIVATE AND BUSINESS ACTIVITIES.

SO ORDERED.

Teehankee, Guerrero, De Castro, Melencio-Herrera, Plana, Vasquez, Relova and Gutierrez, JJ., concur.

Concepcion Jr., J., is on leave.

Fernando, C.J., Abad Santos and Esolin JJ., took no part.



Macariola v. Asuncion, 114 SCRA 77, May 31, 1982

(En Banc), J. Makasiar

Facts: When the decision in Civil Case No. 3010 rendered by respondent Hon. Judge Elias B. Asuncion of

Court of First Instance of Leyte became final on June 8, 1863 for lack of an appeal, a project of partitionwas submitted to him which he later approved in an Order dated October 23, 1963. Among the parties

thereto was complainant Bernardita R. Macariola.

One of the properties mentioned in the project of partition was Lot 1184. This lot according to the

decision rendered by Judge Asuncion was adjudicated to the plaintiffs Reyes in equal shares subdividing

Lot 1184 into five lots denominated as Lot 1184-A to 1184-E.

On July 31, 1964 Lot 1184-E was sold to Dr. Arcadio Galapon who later sold a portion of Lot 1184-E to

Judge Asuncion and his wife Victoria Asuncion. Thereafter spouses Asuncion and spouses Galapon

conveyed their respective shares and interests in Lot 1184-E to the Traders Manufacturing and Fishing

Industries Inc. wherein Judge Asuncion was the president.

Macariola then filed an instant complaint on August 9, 1968 docketed as Civil Case No. 4234 in the CFI of

Leyte against Judge Asuncion with "acts unbecoming a judge" alleging that Judge Asuncion in acquiring by

purchase a portion of Lot 1184-E violated Article 1491 par. 5 of the New Civil Code, Art. 14, pars. 1 and 5

of the Code of Commerce, Sec. 3 par. H of R.A. 3019, Sec. 12 Rule XVIII of the Civil Service Rules and

Canon 25 of the Canons of Judicial Ethics.

On November 2, 1970, Judge Jose Nepomuceno of the CFI of Leyte rendered a decision dismissing the

complaints against Judge Asuncion.

After the investigation, report and recommendation conducted by Justice Cecilia Munoz Palma of the

Court of Appeals, she recommended on her decision dated March 27, 1971 that Judge Asuncion be

exonerated.

Issue: Does Judge Asuncion, now Associate Justice of Court of Appeals violated any law in acquiring by

purchase a parcel of Lot 1184-E which he previously decided in a Civil Case No. 3010 and his engagement

in business by joining a private corporation during his incumbency as a judge of the CFI of Leyte constitute

an "act unbecoming of a judge"?

Ruling: No. The respondent Judge Asuncion's actuation does not constitute of an "act unbecoming of a

judge." But he is reminded to be more discreet in his private and business activities.

SC ruled that the prohibition in Article 1491 par. 5 of the New Civil Code applies only to operate, the sale

or assignment of the property during the pendency of the litigation involving the property. Respondent

judge purchased a portion of Lot 1184-E on March 6, 1965, the in Civil Case No. 3010 which he rendered

on June 8, 1963 was already final because none of the parties therein filed an appeal within the

reglementary period. Hence, the lot in question was no longer subject to litigation. Furthermore, Judge

Asuncion did not buy the lot in question directly from the plaintiffs in Civil Case No. 3010 but from Dr.

Arcadio Galapon who earlier purchased Lot1184-E from the plaintiffs Reyes after the finality of the

decision in Civil Case No. 3010.

SC stated that upon the transfer of sovereignty from Spain to the US and later on from the US to the

Republic of the Philippines, Article 14 of Code of Commerce must be deemed to have been abrogated



because where there is change of sovereignty, the political laws of the former sovereign, whether

compatible or not with those of the new sovereign, are automatically abrogated, unless they are expressly

re-enacted by affirmative act of the new sovereign. There appears no enabling or affirmative act that

continued the effectivity of the aforestated provision of the Code of Commerce, consequently, Art. 14 of

the Code of Commerce has no legal and binding effect and cannot apply to the respondent Judge

Asuncion.

Respondent Judge cannot also be held liable to par. H, Section 3 of R.A. 3019 because the business of the

corporation in which respondent participated had obviously no relation or connection with his judicial

office.

SC stated that respondent judge and his wife deserve the commendation for their immediate withdrawal

from the firm 22 days after its incorporation realizing that their interest contravenes the Canon 25 of the

Canons of Judicial Ethics.



JAVELLANA VS. EXECUTIVE SECRETARY

G.R. No. L-36142, March 31 1973, 50 SCRA 33

FACTS:

On January 20, 1973, just two days before the Supreme Court decided the sequel of plebiscite cases,

Javellana filed this suit against the respondents to restrain them from implementing any of the provisionsof the proposed Constitution not found in the present 1935 Constitution. This is a petition filed by him as

a Filipino citizen and a qualified and registered voter and as a class suit, for himself and in behalf of all

citizens and voters similarly situated. Javellana also alleged that the President had announced the

immediate implementation of the new constitution, thru his Cabinet, respondents including.

Respondents are acting without or in excess of jurisdiction in implementing the said proposed

constitution upon ground the that the President as Commander-in-Chief of the AFP is without authority to

create the Citizens Assemblies; without power to approve proposed constitution; without power to

proclaim the ratification by the Filipino people of the proposed constitution; and the election held to

ratify the proposed constitution was not a free election, hence null and void.

Following that, petitioners prayed for the nullification of Proclamation No. 1102 and any order, decree,

and proclamation which have the same import and objective.

ISSUES:

1. Whether or not the issue of the validity of Proclamation No. 1102 is a justiciable or political question,

and therefore non-justiciable.

2. Whether or not the constitution proposed by the 1971 Constitutional Convention has been ratified

validly conforming to the applicable constitutional and statutory provisions.

3. Whether or not the proposed Constitution has been acquiesced in (with or without valid ratification) by

the people.

4. Whether or not the petitioners are entitled for relief.

5. Whether or not the proposed Constitution by the 1971 Constitutional Convention in force.

HELD:

First. To determine whether or not the new constitution is in force depends upon whether or not the said

new constitution has been ratified in accordance with the requirements of the 1935 Constitution. It is well

settled that the matter of ratification of an amendment to the constitution should be settled applying the

provisions of the constitution in force at the time of the alleged ratification of the old constitution.

The issue whether the new constitution proposed has been ratified in accordance with the provisions of

Article XV of the 1935 Constitution is justiciable as jurisprudence here and in the US (from whom we

patterned our 1935 Constitution) shall show.

Second . The Constitution does not allow Congress or anybody else to vest in those lacking the

qualifications and having the disqualifications mentioned in the Constitution the right of suffrage.

The votes of persons less than 21 years of age render the proceedings in the Citizen’s assemblies void.

Proceedings held in such Citizen’s Assemblies were fundamentally irregular, in that persons lacking the

qualifications prescribed in Article V Section 1 of the 1935 Constitution were allowed to vote in said

Assemblies. And, since there is no means by which the invalid votes of those less than 21 years of age can

be separated or segregated from those of the qualified voters, the proceedings in the Citizen’s Assemblies

must be considered null and void.

Viva voce voting for the ratification of the constitution is void. Article XV of the 1935 Constitution



envisages with the term "votes cast" choices made on ballots – not orally or by raising hands – by the

persons taking part in plebiscites. This is but natural and logical, for, since the early years of the American

regime, we had adopted the Australian Ballot System, with its major characteristics, namely, uniform

official ballots prepared and furnished by the Government and secrecy in the voting, with the advantage

of keeping records that permit judicial inquiry, when necessary, into the accuracy of the election returns.

The plebiscite on the constitution not having been conducted under the supervision of COMELEC is void.The point is that, such of the Barrio Assemblies as were held took place without the intervention of the

COMELEC and without complying with the provisions of the Election Code of 1971 or even of those of

Presidential Decree No. 73. The procedure therein mostly followed is such that there is no reasonable

means of checking the accuracy of the returns filed by the officers who conducted said plebiscites. This is

another patent violation of Article X of the 1935 Constitution which form part of the fundamental scheme

set forth in the 1935 Constitution, as amended, to insure the "free, orderly, and honest" expression of the

people's will. For this, the alleged plebiscite in the Citizen’s Assemblies is null and void, insofar as the

same are claimed to have ratified the revised Constitution.

Third . Proclamation No. 1102 is not an evidence of ratification. Article X of the 1935 Constitution places

COMELEC the "exclusive" charge to the "the enforcement and administration of all laws relative to the

conduct of elections," independently of the Executive. But there is not even a certification by the

COMELEC in support of the alleged results of the citizen’s assemblies relied upon in Proclamation No.

1102. Also, on January 17, 1973 neither the alleged president of the Federation of Provincial or City

Barangays nor the Department of Local Governments had certified to the President the alleged result of

the citizens' assemblies all over the Philippines. The citizen’s assemblies did not adopt the proposed

constitution. It is to my mind a matter of judicial knowledge that there have been no such citizen’s

assemblies in many parts of Manila and suburbs, not to say, also, in other parts of the Philippines.

Fourth. The Court is not prepared to concede that the acts the officers and offices of the Executive

Department, in line with Proclamation No. 1102, connote recognition of or acquiescence to the proposed

Constitution.

A department of the Government cannot “recognize” its own acts. Recognition normally connotes the

acknowledgment by a party of the acts of another. Individual acts of recognition by members of Congressdo not constitute congressional recognition, unless the members have performed said acts in session duly

assembled. This is a well-established principle of Administrative Law and of the Law of Public Officers. The

compliance by the people with the orders of martial law government does not constitute acquiescence to

the proposed Constitution. Neither does the Court prepared to declare that the people's inaction as

regards Proclamation No. 1102, and their compliance with a number of Presidential orders, decrees

and/or instructions, some or many of which have admittedly had salutary effects, issued subsequently

thereto, amounts to a ratification, adoption or approval of said Proclamation No. 1102. The intimidation is

there, and inaction or obedience of the people, under these conditions, is not necessarily an act of

conformity or acquiescence.

As regards the applicability to these cases of the "enrolled bill" rule, it is well to remember that the same

refers to a document certified to the President for his action under the Constitution by the Senate

President and the Speaker of the House of Reps, and attested to by the respective Secretaries of both

Houses, concerning legislative measures approved by said Houses. Whereas, Proclamation No. 1102 is an

act of the President declaring the results of a plebiscite on the proposed Constitution, an act which Article

X of the 1935 Constitution denies the executive department of the Government.

In all other respects and with regard to the other respondent in said case, petitions therein should be

given due course, there being more than prima facie showing that the proposed Constitution has not

been ratified in accordance with Article XV of the 1935 Constitution, either strictly, substantially, or has

been acquiesced in by the people or majority thereof; that said proposed Constitution is not in force and



effect; and that the 1935 Constitution is still the Fundamental Law of the Land, without prejudice to the

submission of said proposed Constitution to the people at a plebiscite for its ratification or rejection in

accordance with Articles V, X and XV of the 1935 Constitution and the provisions of the Revised Election

Code in force at the time of such plebiscite.

Fifth. Four (4) members of the Court, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that

it is in force by virtue of the people's acceptance thereof; 4 members of the Court, namely, JusticesMakalintal, Castro, Fernando and Teehankee cast no vote thereon on the premise stated in their votes on

the third question that they could not state with judicial certainty whether the people have accepted or

not accepted the Constitution; and 2 members of the Court, namely, Justice Zaldivar and myself voted

that the Constitution proposed by the 1971 Constitutional Convention is not in force; with the result,

there are not enough votes to declare that the new Constitution is not in force.



Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. 78059 August 31, 1987

ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C. STA. ANA, JOSE C. TOLENTINO, ROGELIO J. DE LA

ROSA and JOSE M. RESURRECCION, petitioners, vs. HON. BENJAMIN B. ESGUERRA, in his capacity as

OIC Governor of the Province of Rizal, HON. ROMEO C. DE LEON, in his capacity as OIC Mayor of the

Municipality of Taytay, Rizal, FLORENTINO G. MAGNO, REMIGIO M. TIGAS, RICARDO Z. LACANIENTA,

TEODORO V. MEDINA, ROSENDO S. PAZ, and TERESITA L. TOLENTINO, respondents.

MELENCIO-HERRERA, J.:

An original action for Prohibition instituted by petitioners seeking to enjoin respondents from replacing

them from their respective positions as Barangay Captain and Barangay Councilmen of Barangay Dolores,

Municipality of Taytay, Province of Rizal.

As required by the Court, respondents submitted their Comment on the Petition, and petitioner's their

Reply to respondents' Comment.

In the Barangay elections held on May 17, 1982, petitioner Alfredo M. De Leon was elected Barangay

Captain and the other petitioners Angel S. Salamat, Mario C. Sta. Ana, Jose C. Tolentino, Rogelio J. de la

Rosa and Jose M. Resurreccion, as Barangay Councilmen of Barangay Dolores, Taytay, Rizal under Batas

Pambansa Blg. 222, otherwise known as the Barangay Election Act of 1982.

On February 9, 1987, petitioner Alfredo M, de Leon received a Memorandum antedated December 1,

1986 but signed by respondent OIC Governor Benjamin Esguerra on February 8, 1987 designating

respondent Florentino G. Magno as Barangay Captain of Barangay Dolores, Taytay, Rizal. The designationmade by the OIC Governor was "by authority of the Minister of Local Government."

Also on February 8, 1987, respondent OIC Governor signed a Memorandum, antedated December 1, 1986

designating respondents Remigio M. Tigas, Ricardo Z. Lacanienta Teodoro V. Medina, Roberto S. Paz and

Teresita L. Tolentino as members of the Barangay Council of the same Barangay and Municipality.

That the Memoranda had been antedated is evidenced by the Affidavit of respondent OIC Governor, the

pertinent portions of which read:

xxx xxx xxx

That I am the OIC Governor of Rizal having been appointed as such on March 20, 1986;

That as being OIC Governor of the Province of Rizal and in the performance of my duties thereof, I among

others, have signed as I did sign the unnumbered memorandum ordering the replacement of all the

barangay officials of all the barangay(s) in the Municipality of Taytay, Rizal;

That the above cited memorandum dated December 1, 1986 was signed by me personally on February

8,1987;



That said memorandum was further deciminated (sic) to all concerned the following day, February 9.

1987.

FURTHER AFFIANT SAYETH NONE.

Pasig, Metro Manila, March 23, 1987.

Before us now, petitioners pray that the subject Memoranda of February 8, 1987 be declared null and

void and that respondents be prohibited from taking over their positions of Barangay Captain and

Barangay Councilmen, respectively. Petitioners maintain that pursuant to Section 3 of the Barangay

Election Act of 1982 (BP Blg. 222), their terms of office "shall be six (6) years which shall commence on

June 7, 1982 and shall continue until their successors shall have elected and shall have qualified," or up to

June 7, 1988. It is also their position that with the ratification of the 1987 Constitution, respondent OIC

Governor no longer has the authority to replace them and to designate their successors.

On the other hand, respondents rely on Section 2, Article III of the Provisional Constitution, promulgated

on March 25, 1986, which provided:

SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continuein office until otherwise provided by proclamation or executive order or upon the designation or

appointment and qualification of their successors, if such appointment is made within a period of one

year from February 25,1986.

By reason of the foregoing provision, respondents contend that the terms of office of elective and

appointive officials were abolished and that petitioners continued in office by virtue of the aforequoted

provision and not because their term of six years had not yet expired; and that the provision in the

Barangay Election Act fixing the term of office of Barangay officials to six (6) years must be deemed to

have been repealed for being inconsistent with the aforequoted provision of the Provisional Constitution.

Examining the said provision, there should be no question that petitioners, as elective officials under the

1973 Constitution, may continue in office but should vacate their positions upon the occurrence of any ofthe events mentioned. 1

Since the promulgation of the Provisional Constitution, there has been no proclamation or executive

order terminating the term of elective Barangay officials. Thus, the issue for resolution is whether or not

the designation of respondents to replace petitioners was validly made during the one-year period which

ended on February 25, 1987.

Considering the candid Affidavit of respondent OIC Governor, we hold that February 8, 1977, should be

considered as the effective date of replacement and not December 1,1986 to which it was ante dated, in

keeping with the dictates of justice.

But while February 8, 1987 is ostensibly still within the one-year deadline, the aforequoted provision inthe Provisional Constitution must be deemed to have been overtaken by Section 27, Article XVIII of the

1987 Constitution reading.

SECTION 27 . This Constitution shall take effect immediately upon its ratification by a majority of the votes

cast in a plebiscite held for the purpose and shall supersede all previous Constitutions.

The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By that date, therefore, the

Provisional Constitution must be deemed to have been superseded. Having become inoperative,



respondent OIC Governor could no longer rely on Section 2, Article III, thereof to designate respondents

to the elective positions occupied by petitioners.

Petitioners must now be held to have acquired security of tenure specially considering that the Barangay

Election Act of 1982 declares it "a policy of the State to guarantee and promote the autonomy of the

barangays to ensure their fullest development as self-reliant communities. 2

Similarly, the 1987

Constitution ensures the autonomy of local governments and of political subdivisions of which thebarangays form a part,

3 and limits the President's power to "general supervision" over local governments.

4 Relevantly, Section 8, Article X of the same 1987 Constitution further provides in part:

Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by

law, shall be three years ...

Until the term of office of barangay officials has been determined by law, therefore, the term of office of

six (6) years provided for in the Barangay Election Act of 19825 should still govern.

Contrary to the stand of respondents, we find nothing inconsistent between the term of six (6) years for

elective Barangay officials and the 1987 Constitution, and the same should, therefore, be considered as

still operative, pursuant to Section 3, Article XVIII of the 1987 Constitution, reading:

Sec. 3. All existing laws, decrees, executive orders, proclamations letters of instructions, and other

executive issuances not inconsistent, with this Constitution shall remain operative until amended,

repealed or revoked.

WHEREFORE, (1) The Memoranda issued by respondent OIC Governor on February 8, 1987 designating

respondents as the Barangay Captain and Barangay Councilmen, respectively, of Barangay Dolores,

Taytay, Rizal, are both declared to be of no legal force and effect; and (2) the Writ of Prohibition is

granted enjoining respondents perpetually from proceeding with the ouster/take-over of petitioners'

positions subject of this Petition. Without costs.

SO ORDERED.

Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin and Cortes, JJ., concur.

Separate Opinions

TEEHANKEE, CJ., concurring:

The main issue resolved in the judgment at bar is whether the 1987 Constitution took effect on February

2, 1987 , the date that the plebiscite for its ratification was held or whether it took effect on February 11,

1987 , the date its ratification was proclaimed per Proclamation No. 58 of the President of the Philippines,

Corazon C. Aquino.

The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds that by virtue of the provision



of Article XVIII, Section 27 of the 1987 Constitution that it "shall take effect immediately upon its

ratification by a majority of the votes cast in a plebiscite held for the purpose," the 1987 Constitution took

effect on February 2, 1987, the date of its ratification in the plebiscite held on that same date.

The thrust of the dissent is that the Constitution should be deemed to "take effect on the date its

ratification shall have been ascertained and not at the time the people cast their votes to approve or

reject it." This view was actually proposed at the Constitutional Commission deliberations, but waswithdrawn by its proponent in the face of the "overwhelming" contrary view that the Constitution "will be

effective on the very day of the plebiscite."

The record of the proceedings and debates of the Constitutional Commission fully supports the Court's

judgment. It shows that the clear, unequivocal and express intent of the Constitutional Conunission in

unanimously approving (by thirty-five votes in favor and none against) the aforequoted Section 27 of

Transitory Article XVIII of the 1987 Constitution was that "the act of ratification is the act of voting by the

people. So that is the date of the ratification" and that "the canvass thereafter [of the votes] is merely the

mathematical confirmation of what was done during the date of the plebiscite and the proclamation of

the President is merely the official confirmatory declaration of an act which was actually done by the

Filipino people in adopting the Constitution when they cast their votes on the date of the plebiscite."

The record of the deliberations and the voting is reproduced hereinbelow: 1

MR. MAAMBONG. Madam President, may we now put to a vote the original formulation of the committee

as indicated in Section 12, unless there are other commissioners who would like to present amendments.

MR. DAVIDE. Madam President.

THE PRESIDENT. Commissioner Davide is recognized .

MR. DAVIDE. May I propose the following amendments.

On line 2, delete the words "its ratification" and in lieu thereof insert the following-. "THEPROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And on the last line, after

"constitutions," add the following: "AND THEIR AMENDMENTS."

MR. MAAMBONG. Just a moment, Madam President. If Commissioner Davide is going to propose an

additional sentence, the committee would suggest that we take up first his amendment to the first

sentence as originally formulated. We are now ready to comment on that proposed amendment.

The proposed amendment would be to delete the words "its ratification and in lieu thereof insert the

words "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And the second

amendment would be: After the word "constitutions," add the words" AND THEIR AMENDMENTS,"

The committee accepts the first proposed amendment. However, we regret that we cannot accept thesecond proposed amendment after the word "constitutions" because the committee feels that when we

talk of all previous Constitutions, necessarily it includes "AND THEIR AMENDMENTS."

MR. DAVIDE. With that explanation, l will not insist on the second. But, Madam President, may I request

that I be allowed to read the second amendment so the Commission would be able to appreciate the

change in the first.

MR. MAAMBONG. Yes, Madam President, we can now do that.



MR. DAVIDE. The second sentence will read: "THE PROCLAMATION SHALL BE MADE WITHIN FIVE DAYS

FOLLOWING THE COMPLETION OF THE CANVASS BY THE COMMISSION ON ELECTIONS OF THE RESULTS

OF SUCH PLEBISCITE."

MR. MAAMBONG. Madam President, after conferring with our chairman, the committee feels that the

second proposed amendment in the form of a new sentence would not be exactly necessary and the

committee feels that it would be too much for us to impose a time frame on the President to make theproclamation. As we would recall, Madam President, in the approved Article on the Executive, there is a

provision which says that the President shall make certain that all laws shall be faithfully complied. When

we approve this first sentence, and it says that there will be a proclamation by the President that the

Constitution has been ratified, the President will naturally comply with the law in accordance with the

provisions in the Article on the Executive which we have cited. It would be too much to impose on the

President a time frame within which she will make that declaration. It would be assumed that the

President would immediately do that after the results shall have been canvassed by the COMELEC.

Therefore, the committee regrets that it cannot accept the second sentence which the Gentleman is

proposing, Madam President.

MR. DAVIDE. I am prepared to withdraw the same on the assumption that there will be an immediateproclamation of the results by the President.

MR. MAAMBONG. With that understanding, Madam President.

MR. DAVIDE. I will not insist on the second sentence.

FR. BERNAS. Madam President.

THE PRESIDENT. Commissioner Bernas is recognized.

FR. BERNAS. I would ask the committee to reconsider its acceptance of the amendment which makes the

effectivity of the new Constitution dependent upon the proclamation of the President. The effectivity ofthe Constitution should commence on the date of the ratification, not on the date of the proclamation of

the President . What is confusing, I think, is what happened in 1976 when the amendments of 1976 were

ratified. In that particular case, the reason the amendments of 1976 were effective upon the proclamation

of the President was that the draft presented to the people said that the amendment will be effective

upon the proclamation made by the President. I have a suspicion that was put in there precisely to give

the President some kind of leeway on whether to announce the ratification or not. Therefore, we should

not make this dependent on the action of the President since this will be a manifestation of the act of the

people to be done under the supervision of the COMELEC and it should be the COMELEC who should make

the announcement that, in fact, the votes show that the Constitution was ratified and there should be no

need to wait for any proclamation on the part of the President.

MR. MAAMBONG. Would the Gentleman answer a few clarificatory questions?

FR. BERNAS. Willingly, Madam President.

MR. MAAMBONG. The Gentleman will agree that a date has to be fixed as to exactly when the

Constitution is supposed to be ratified.

FR. BERNAS. I would say that the ratification of the Constitution is on the date the votes were supposed to

have been cast.



MR. MAAMBONG. Let us go to the mechanics of the whole thing, Madam President. We present the

Constitution to a plebiscite, the people exercise their right to vote, then the votes are canvassed by the

Commission on Elections. If we delete the suggested amendment which says: "THE PROCLAMATION BY

THE PRESIDENT THAT IT HAS BEEN RATIFIED," what would be, in clear terms, the date when the

Constitution is supposed to be ratified or not ratified, as the case may be?

FR. BERNAS. The date would be the casting of the ballots. if the President were to say that the plebiscitewould be held, for instance, on January 19, 1987, then the date for the effectivity of the new Constitution

would be January 19, 1987.

MR. MAAMBONG. In other words, it would not depend on the actual issuance of the results by the

Commission on Elections which will be doing the canvass? That is immaterial Madam President

FR. BERNAS. It would not, Madam President, because "ratification" is the act of saying "yes" is done when

one casts his ballot.

MR. MAAMBONG. So it is the date of the plebiscite itself, Madam President?

FR. BERNAS. Yes, Madam President.

MR. MAAMBONG. With that statement of Commissioner Bernas, we would like to know from the

proponent, Commissioner Davide, if he is insisting on his amendment.

MR. DAVIDE. Madam President, I am insisting on the amendment because I cannot subscribe to the view

of Commissioner Bernas, that the date of the ratification is reckoned from the date of the casting of the

ballots. That cannot be the date of reckoning because it is a plebiscite all over the country. We do not split

the moment of casting by each of the voters. Actually and technically speaking, it would be all right if it

would be upon the announcement of the results of the canvass conducted by the COMELEC or the results

of the plebiscite held all over the country. But it is necessary that there be a body which will make the

formal announcement of the results of the plebiscite. So it is either the President or the COMELEC itself

upon the completion of the canvass of the results of the plebiscite, and I opted for the President.

xxx xxx xxx

MR. NOLLEDO. Madam President.

THE PRESIDENT. Commissioner Nolledo is recognized.

MR. NOLLEDO. Thank you, Madam President. I beg to disagree with Commissioner Davide. I support the

stand of Commissioner Bernas because it is really the date of the casting of the "yes" votes that is the date

of the ratification of the Constitution The announcement merely confirms the ratification even if the

results are released two or three days after. I think it is a fundamental principle in political law, even in

civil law, because an announcement is a mere confirmation The act of ratification is the act of voting bythe people. So that is the date of the ratification. If there should be any need for presidential

proclamation, that proclamation will merely confirm the act of ratification.

Thank you, Madam President.

THE PRESIDENT. Does Commissioner Regalado want to contribute?

MR. REGALADO. Madam President, I was precisely going to state the same support for Commissioner



Bernas, because the canvass thereafter is merely the mathematical confirmation of what was done during

the date of the plebiscite and the proclamation of the President is merely the official confirmatory

declaration of an act which was actually done by the Filipino people in adopting the Constitution when

they cast their votes on the date of the plebiscite.

MR. LERUM. Madam President, may I be recognized.

THE PRESIDENT. Commissioner Lerum is recognized.

MR. LERUM. I am in favor of the Davide amendment because we have to fix a date for the effectivity of

the Constitution. Suppose the announcement is delayed by, say, 10 days or a month, what happens to the

obligations and rights that accrue upon the approval of the Constitution? So I think we must have a

definite date. I am, therefore, in favor of the Davide amendment.

MR. MAAMBONG. Madam President.

THE PRESIDENT. Commissioner Maambong is recognized.

MR. MAAMBONG. With the theory of the Commissioner, would there be a necessity for the Commission

on Elections to declare the results of the canvass?

FR. BERNAS. There would be because it is the Commission on Elections which makes the official

announcement of the results.

MR. MAAMBONG. My next question which is the final one is: After the Commision on Elections has

declared the results of the canvass, will there be a necessity for the President to make a proclamation of

the results of the canvass as submitted by the Commission on Elections?

FR. BERNAS. I would say there would be no necessity, Madam President.

MR. MAAMBONG. In other words, the President may or may not make the proclamation whether the

Constitution has been ratified or not.

FR. BERNAS. I would say that the proclamation made by the President would be immaterial because under

the law, the administration of all election laws is under an independent Commission on Elections. It is the

Commission on Elections which announces the results.

MR. MAAMBONG. But nevertheless, the President may make the proclamation.

FR. BERNAS. Yes, the President may. And if what he says contradicts what the Commission on Elections

says, it would have no effect. I would only add that when we say that the date of effectivity is on the day

of the casting of the votes, what we mean is that the Constitution takes effect on every single minute and

every single second of that day, because the Civil Code says a day has 24 hours. So that even if the votes

are cast in the morning, the Constitution is really effective from the previous midnight.

So that when we adopted the new rule on citizenship, the children of Filipino mothers or anybody born on

the date of effectivity of the 1973 Constitution, which is January 17, 1973, are natural-born citizens, no

matter what time of day or night.

MR. MAAMBONG. Could we, therefore, safely say that whatever date is the publication of the results of



the canvass by the COMELEC retroacts to the date of the plebiscite?


MR. MAAMBONG. I thank the Commissioner.

MR. GUINGONA. Madam President.

THE PRESIDENT. Commissioner Guingona is recognized.

MR. GUINGONA. Mention was made about the need for having a definite date. I think it is precisely the

proposal of Commissioner Bernas which speaks of the date (of ratification that would have a definite

date, because there would be no definite date if we depend upon the canvassing by the COMELEC .

Thank you,

THE PRESIDENT. Commissioner Concepcion is recognized.

MR. CONCEPCION. Thank you, Madam President.

Whoever makes the announcement as to the result of the plebiscite, be it the COMELEC or the President,

would announce that a majority of the votes cast on a given date was in favor of the Constitution. And

that is the date when the Constitution takes effect, apart from the fact that the provision on the drafting

or amendment of the Constitution provides that a constitution becomes effective upon ratification by a

majority of the votes cast, although I would not say from the very beginning of the date of election

because as of that time it is impossible to determine whether there is a majority. At the end of the day of

election or plebiscite, the determination is made as of that time-the majority of the votes cast in a

plebiscite held on such and such a date. So that is the time when the new Constitution will be considered

ratified and, therefore, effective.

THE PRESIDENT. May we now hear Vice-President Padilla.

MR. PADILLA. Madam President, I am against the proposed amendment of Commissioner Davide and I

support the view of Commissioner Bernas and the others because the ratification of the Constitution is on

the date the people, by a majority vote, have cast their votes in favor of the Constitution. Even in civil law,

if there is a contract, say, between an agent and a third person and that contract is confirmed or ratified

by the principal, the validity does not begin on the date of ratification but it retroacts from the date the

contract was executed.

Therefore, the date of the Constitution as ratified should retroact to the date that the people have cast

their affirmative votes in favor of the Constitution.


THE PRESIDENT. Commissioner Maambong is recognized

MR. MAAMBONG. We will now ask once more Commissioner Davide if he is insisting on his amendment

MR. DAVIDE. In view of the explanation and overwhelming tyranny of the opinion that it will be effective

on the very day of the plebiscite, I am withdrawing my amendment on the assumption that any of the



following bodies the Office of the President or the COMELEC will make the formal announcement of the

results.

MR. RAMA. Madam President, we are now ready to vote on the original provision as stated by the

committee.

MR. MAAMBONG. The committee will read again the formulation indicated in the original committeereport as Section 12.

This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a

plebiscite called for the purpose and shall supersede all previous Constitutions.

We ask for a vote, Madam President.

V O T I N G

THE PRESIDENT. As many as are in favor, please raise their hand. (Several Members raised their hands.)

As many as are against, please raise their hand. (No Member raised his hand.)

The results show 35 votes in favor and none against; Section 12 is approved. 2

The Court next holds as a consequence of its declaration at bar that the Constitution took effect on the

date of its ratification in the plebiscite held on February 2, 1987, that: (1) the Provisional Constitution

promulgated on March 25, 1986 must be deemed to have been superseded by the 1987 Constitution on

the same date February 2, 1987 and (2) by and after said date, February 2, 1987, absent any saying clause

to the contrary in the Transitory Article of the Constitution, respondent OIC Governor could no longer

exercise the power to replace petitioners in their positions as Barangay Captain and Councilmen. Hence,

the attempted replacement of petitioners by respondent OIC Governor's designation on February 8, 1987

of their successors could no longer produce any legal force and effect. While the Provisional Constitution

provided for a one-year period expiring on March 25, 1987 within which the power of replacement couldbe exercised, this period was shortened by the ratification and effectivity on February 2, 1987 of the

Constitution. Had the intention of the framers of the Constitution been otherwise, they would have so

provided for in the Transitory Article, as indeed they provided for multifarious transitory provisions in

twenty six sections of Article XVIII, e.g. extension of the six-year term of the incumbent President and

Vice-President to noon of June 30, 1992 for purposes of synchronization of elections, the continued

exercise of legislative powers by the incumbent President until the convening of the first Congress, etc.

A final note of clarification, as to the statement in the dissent that "the appointments of some seven

Court of Appeals Justices, 71 provincial fiscals and 55 city fiscals reported extended (by) the President on

February 2, 1987 . . . could be open to serious questions," in view of the provisions of Sections 8 (1) and 9,

Article VIII of the Constitution which require prior endorsement thereof by the Judicial and Bar Council

created under the Constitution. It should be stated for the record that the reported date of theappointments, February 2, 1987, is incorrect. The official records of the Court show that the appointments

of the seven Court of Appeals Justices were transmitted to this Court on February 1, 1987 and they were

all appointed on or before January 31, 1987. 3

(Similarly, the records of the Department of Justice likewise

show that the appointment papers of the last batch of provincial and city fiscals signed by the President in

completion of the reorganization of the prosecution service were made on January 31, 1987 and

transmitted to the Department on February 1, 1987.) It is also a matter of record that since February 2,

1987, no appointments to the Judiciary have been extended by the President, pending the constitution of

the Judicial and Bar Council, indicating that the Chief Executive has likewise considered February 2, 1987



as the effective date of the Constitution, as now expressly declared by the Court.

CRUZ, J., concurring.

In her quiet and restrained manner, Justice Herrera is able to prove her point with more telling effect than

the tones of thunder. She has written another persuasive opinion, and I am delighted to concur. I note

that it in effect affirms my dissents in the De la Serna, Zamora, Duquing and Bayas cases, where Isubmitted that the local OICs may no longer be summarily replaced, having acquired security of tenure

under the new Constitution. Our difference is that whereas I would make that right commence on

February 25, 1987, after the deadline set by the Freedom Constitution, Justice Herrera would opt for

February 2, 1987, when the new Constitution was ratified. I yield to that better view and agree with her

ponencia completely.

SARMIENTO, J., Dissenting.

With due respect to the majority I register this dissent.

While I agree that the one-year deadline prescribed by Section 2, Article III of the Provisional Constitution

with respect to the tenure of government functionaries, as follows:

SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue

in office until otherwise provided by proclamation or executive order or upon the designation or


year from February 25, 1986.

was cut short by the ratification of the 1987 Constitution, I entertain serious doubts whether or not that

cut-off period began on February 2, 1987, the date of the plebiscite held to approve the new Charter. To

my mind the 1987 constitution took effect on February 11, 1987, the date the same was proclaimed

ratified pursuant to Proclamation No. 58 of the President of the Philippines, and not February 2, 1987,

plebiscite day.

I rely, first and foremost, on the language of the 1987 Charter itself, thus:

Sec. 27. This Constitution shag take effect immediately upon its ratification by a majority of the votes cast

in a plebiscite held for the purpose and shall supersede all previous Constitutions.

It is my reading of this provision that the Constitution takes effect on the date its ratification shall have

been ascertained, and not at the time the people cast their votes to approve or reject it. For it cannot be

logically said that Constitution was ratified during such a plebiscite, when the will of the people as of that

time, had not, and could not have been, vet determined.

Other than that, pragmatic considerations compel me to take the view.

I have no doubt that between February 2, and February 11, 1987 the government performed acts that

would have been valid under the Provisional Constitution but would otherwise have been void under the

1987 Charter. I recall, in particular, the appointments of some seven Court of Appeals Justices, 71

provincial fiscals, and 55 city fiscals the President reportedly extended on February 2, 1987. 1 Under

Sections 8 (1) and 9, Article VIII, of the l987 Constitution, as follows:

xxx xxx xxx



Sec. 8. (I)A Judicial and Bar Council is hereby created under the supervision of the Supreme Court

composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the

Congress as ex oficio Members, a representative of the Integrated Bar, a professor of law, a retired

Member of the Supreme Court, and a representative of the private sector.

xxx xxx xxx

Sec. 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the President

from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy, Such

appointments need no confirmation.

xxx xxx xxx

such appointments could be open to serious questions.

Since 1973, moreover, we have invariably reckoned the effectivity of the Constitution as well as the

amendments thereto from the date it is proclaimed ratified.

In Magtoto v. Manguera, 2 we held that the 1973 Constitution became in force and effect on January 17,

1973, the date Proclamation No. 1102, "Announcing the Ratification by the Filipino People of the

Constitution Proposed by the 1971 Constitutional Convention," was issued, although Mr. Justice, now

Chief Justice, Teehankee would push its effectivity date further to April 17, 1973, the date our decision in

Javellana v. Executive Secretary ,3 became final. And this was so notwithstanding Section 16, Article XVII,

of the 1973 Constitution, thus:

SEC. 16. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast

in a plebiscite called for the purpose and, except as herein provided, shall supersede the Constitution of

nineteen-hundred and thirty- five and all amendments thereto.

On October 27, 1976, then President Marcos promulgated Proclamation no. 1595, proclaiming the

ratification of the 1976 amendments submitted in the plebiscite of October 16- 17, 1976. TheProclamation states, inter alia, that.

By virtue-of the powers vested in me by law, I hereby proclaim all the amendments embodied in this

certificate as duly ratified by the Filipino people in the referendum- plebiscite held Oct. 16-17, 1976 and

are therefore effective and in full force and effect as of this date.

It shall be noted that under Amendment No. 9 of the said 1976 amendments.

These amendments shall take effect after the incumbent President shall have proclaimed that they have

been ratified by a majority of the votes cast in the referendum-plebiscite.

On April 1, 1980, the then Chief Executive issued Proclamation no. 1959, "Proclaiming the Ratification bythe Filipino People of the Amendments of Section 7, Article X of the Constitution" (lengthening the terms

of office of judges and justices). The Proclamation provides:

[t]he above-quoted amendment has been duly ratified by a majority of the votes cast in the plebiscite

held, together with the election for local officials, on January 30, 1980, and that said amendment is

hereby declared to take effect immediately.

It shall be noted that under Resolution No. 21, dated December 18, 1979, the proposed amendment shall



take effect on the date the incumbent President/Prime Minister shall proclaim its ratification.

On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in the Plebiscite of April

7, 1981 of the Amendments to the Constitution Embodied in Batas Pambansa Blg. 122 and Declaring

Them Therefore Effective and in Full Force and Effect." The Proclamation, in declaring the said

amendments duly approved, further declared them "[e]ffective and in full force and in effect as of the

date of this Proclamation," It shall be noted, in this connection, that under Resolutions Nos. I and 2 of theBatasang Pambansa, Third Regular Session, Sitting as a Constituent Assembly, which parented these

amendments, the same:

. . .shall become valid as part of the Constitution when approved by a majority of the votes cast in a

plebiscite to be held pursuant to Section 2, Article XVI of the Constitution.

On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino People, for Ratification or

Rejection, the Amendment to the Constitution of the Philippines, Proposed by the Batasang Pambansa,

Sitting as a Constituent Assembly, in its Resolutions Numbered Three, Two, and One, and to Appropriate

Funds Therefore," provides, as follows:

SEC. 7. The Commission on Elections, sitting en banc, shad canvass and proclaim the result of theplebiscite using the certificates submitted to it, duly authenticated and certified by the Board of

Canvassers of each province or city.

We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the Plebiscite of January 27,

1984, of the Amendments to the Constitution Embodied in Batasang Pambansa Resolutions Nos. 104, 105,

110, 111, 112 and 113." It states that the amendments:

....are therefore effective and in full force and effect as of the date of this Proclamation.

It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 112 and Section 9, Batas Blg.

643), which states, that:

The proposed amendments shall take effect on the date the President of the Philippines shall proclaim

that they have been ratified by a majority of the votes cast in the plebiscite held for the purpose, but not

later than three months from the approval of the amendments.

albeit Resolutions Nos. 105, 111, and 113 provide, that:

These amendments shall be valid as a part of the Constitution when approved by a majority of the votes

cast in an election/plebiscite at which it is submitted to the people for their ratification pursuant to

Section 2 of Article XVI of the Constitution, as amended.

That a Constitution or amendments thereto take effect upon proclamation of their ratification and not at

the time of the plebiscite is a view that is not peculiar to the Marcos era.

The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 1947 plebiscite called

pursuant to Republic Act No. 73 and the Resolution of Both Houses (of Congress) adopted on September

18, 1946, was adopted on April 9,1947. The April 9, 1947 Resolution makes no mention of a retroactive

application.

Accordingly, when the incumbent President (Mrs. Corazon C. Aquino) proclaimed on February 11, 1987, at

Malacanang Palace:



... that the Constitution of the Republic of the Philippines adopted by the Constitutional Commission of

1986, including the Ordinance appended thereto, has been duly ratified by the Filipino people and is

therefore effective and in full force and effect.4

the 1987 Constitution, in point of fact, came into force and effect, I hold that it took effect at no other

time.

I submit that our ruling in Ponsica v. Ignalaga5 in which we declared, in passing, that the new Charter was

ratified on February 2, 1987, does not in any way weaken this dissent. As I stated, the remark was said in

passing-we did not resolve the case on account of a categorical holding that the 1987 Constitution came

to life on February 2, 1987. In any event, if we did, I now call for its re-examination.

I am therefore of the opinion, consistent with the views expressed above, that the challenged dismissals

done on February 8, 1987 were valid, the 1987 Constitution not being then as yet in force.

Separate Opinions

TEEHANKEE, CJ., concurring:

The main issue resolved in the judgment at bar is whether the 1987 Constitution took effect on February

2, 1987 , the date that the plebiscite for its ratification was held or whether it took effect on February 11,

1987 , the date its ratification was proclaimed per Proclamation No. 58 of the President of the Philippines,

Corazon C. Aquino.

The Court's decision, with the lone dissent of Mr. Justice Sarmiento, holds that by virtue of the provision

of Article XVIII, Section 27 of the 1987 Constitution that it "shall take effect immediately upon its

ratification by a majority of the votes cast in a plebiscite held for the purpose," the 1987 Constitution tookeffect on February 2, 1987, the date of its ratification in the plebiscite held on that same date.

The thrust of the dissent is that the Constitution should be deemed to "take effect on the d ate its

ratification shall have been ascertained and not at the time the people cast their votes to approve or

reject it." This view was actually proposed at the Constitutional Commission deliberations, but was

withdrawn by its proponent in the face of the "overwhelming" contrary view that the Constitution "will be

effective on the very day of the plebiscite."

The record of the proceedings and debates of the Constitutional Commission fully supports the Court's

judgment. It shows that the clear, unequivocal and express intent of the Constitutional Conunission in

unanimously approving (by thirty-five votes in favor and none against) the aforequoted Section 27 of

Transitory Article XVIII of the 1987 Constitution was that "the act of ratification is the act of voting by thepeople. So that is the date of the ratification" and that "the canvass thereafter [of the votes] is merely the

mathematical confirmation of what was done during the date of the plebiscite and the proclamation of

the President is merely the official confirmatory declaration of an act which was actually done by the

Filipino people in adopting the Constitution when they cast their votes on the date of the plebiscite."

The record of the deliberations and the voting is reproduced hereinbelow: 1

MR. MAAMBONG. Madam President, may we now put to a vote the original formulation of the committee



as indicated in Section 12, unless there are other commissioners who would like to present amendments.

MR. DAVIDE. Madam President.

THE PRESIDENT. Commissioner Davide is recognized .

MR. DAVIDE. May I propose the following amendments.

On line 2, delete the words "its ratification" and in lieu thereof insert the following-. "THE

PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And on the last line, after

"constitutions," add the following: "AND THEIR AMENDMENTS."

MR. MAAMBONG. Just a moment, Madam President. If Commissioner Davide is going to propose an

additional sentence, the committee would suggest that we take up first his amendment to the first

sentence as originally formulated. We are now ready to comment on that proposed amendment.

The proposed amendment would be to delete the words "its ratification and in lieu thereof insert the

words "THE PROCLAMATION BY THE PRESIDENT THAT IT HAS BEEN RATIFIED." And the second

amendment would be: After the word "constitutions," add the words" AND THEIR AMENDMENTS,"

The committee accepts the first proposed amendment. However, we regret that we cannot accept the

second proposed amendment after the word "constitutions" because the committee feels that when we

talk of all previous Constitutions, necessarily it includes "AND THEIR AMENDMENTS."

MR. DAVIDE. With that explanation, l will not insist on the second. But, Madam President, may I request

that I be allowed to read the second amendment so the Commission would be able to appreciate the

change in the first.

MR. MAAMBONG. Yes, Madam President, we can now do that.

MR. DAVIDE. The second sentence will read: "THE PROCLAMATION SHALL BE MADE WITHIN FIVE DAYS

FOLLOWING THE COMPLETION OF THE CANVASS BY THE COMMISSION ON ELECTIONS OF THE RESULTS

OF SUCH PLEBISCITE."

MR. MAAMBONG. Madam President, after conferring with our chairman, the committee feels that the

second proposed amendment in the form of a new sentence would not be exactly necessary and the

committee feels that it would be too much for us to impose a time frame on the President to make the

proclamation. As we would recall, Madam President, in the approved Article on the Executive, there is a

provision which says that the President shall make certain that all laws shall be faithfully complied. When

we approve this first sentence, and it says that there will be a proclamation by the President that the

Constitution has been ratified, the President will naturally comply with the law in accordance with the

provisions in the Article on the Executive which we have cited. It would be too much to impose on the

President a time frame within which she will make that declaration. It would be assumed that thePresident would immediately do that after the results shall have been canvassed by the COMELEC.

Therefore, the committee regrets that it cannot accept the second sentence which the Gentleman is

proposing, Madam President.

MR. DAVIDE. I am prepared to withdraw the same on the assumption that there will be an immediate

proclamation of the results by the President.



MR. MAAMBONG. With that understanding, Madam President.

MR. DAVIDE. I will not insist on the second sentence.

FR. BERNAS. Madam President.

THE PRESIDENT. Commissioner Bernas is recognized.

FR. BERNAS. I would ask the committee to reconsider its acceptance of the amendment which makes the

effectivity of the new Constitution dependent upon the proclamation of the President. The effectivity of

the Constitution should commence on the date of the ratification, not on the date of the proclamation of

the President . What is confusing, I think, is what happened in 1976 when the amendments of 1976 were

ratified. In that particular case, the reason the amendments of 1976 were effective upon the proclamation

of the President was that the draft presented to the people said that the amendment will be effective

upon the proclamation made by the President. I have a suspicion that was put in there precisely to give

the President some kind of leeway on whether to announce the ratification or not. Therefore, we should

not make this dependent on the action of the President since this will be a manifestation of the act of the

people to be done under the supervision of the COMELEC and it should be the COMELEC who should make

the announcement that, in fact, the votes show that the Constitution was ratified and there should be noneed to wait for any proclamation on the part of the President.

MR. MAAMBONG. Would the Gentleman answer a few clarificatory questions?

FR. BERNAS. Willingly, Madam President.

MR. MAAMBONG. The Gentleman will agree that a date has to be fixed as to exactly when the

Constitution is supposed to be ratified.

FR. BERNAS. I would say that the ratification of the Constitution is on the date the votes were supposed to

have been cast.

MR. MAAMBONG. Let us go to the mechanics of the whole thing, Madam President. We present the

Constitution to a plebiscite, the people exercise their right to vote, then the votes are canvassed by the

Commission on Elections. If we delete the suggested amendment which says: "THE PROCLAMATION BY

THE PRESIDENT THAT IT HAS BEEN RATIFIED," what would be, in clear terms, the date when the

Constitution is supposed to be ratified or not ratified, as the case may be?

FR. BERNAS. The date would be the casting of the ballots. if the President were to say that the plebiscite

would be held, for instance, on January 19, 1987, then the date for the effectivity of the new Constitution

would be January 19, 1987.

MR. MAAMBONG. In other words, it would not depend on the actual issuance of the results by the

Commission on Elections which will be doing the canvass? That is immaterial Madam President

FR. BERNAS. It would not, Madam President, because "ratification" is the act of saying "yes" is done when

one casts his ballot.

MR. MAAMBONG. So it is the date of the plebiscite itself, Madam President?




MR. MAAMBONG. With that statement of Commissioner Bernas, we would like to know from the

proponent, Commissioner Davide, if he is insisting on his amendment.

MR. DAVIDE. Madam President, I am insisting on the amendment because I cannot subscribe to the view

of Commissioner Bernas, that the date of the ratification is reckoned from the date of the casting of the

ballots. That cannot be the date of reckoning because it is a plebiscite all over the country. We do not split

the moment of casting by each of the voters. Actually and technically speaking, it would be all right if itwould be upon the announcement of the results of the canvass conducted by the COMELEC or the results

of the plebiscite held all over the country. But it is necessary that there be a body which will make the

formal announcement of the results of the plebiscite. So it is either the President or the COMELEC itself

upon the completion of the canvass of the results of the plebiscite, and I opted for the President.

xxx xxx xxx

MR. NOLLEDO. Madam President.

THE PRESIDENT. Commissioner Nolledo is recognized.

MR. NOLLEDO. Thank you, Madam President. I beg to disagree with Commissioner Davide. I support thestand of Commissioner Bernas because it is really the date of the casting of the "yes" votes that is the date

of the ratification of the Constitution The announcement merely confirms the ratification even if the

results are released two or three days after. I think it is a fundamental principle in political law, even in

civil law, because an announcement is a mere confirmation The act of ratification is the act of voting by

the people. So that is the date of the ratification. If there should be any need for presidential

proclamation, that proclamation will merely confirm the act of ratification.

Thank you, Madam President.

THE PRESIDENT. Does Commissioner Regalado want to contribute?

MR. REGALADO. Madam President, I was precisely going to state the same support for CommissionerBernas, because the canvass thereafter is merely the mathematical confirmation of what was done during

the date of the plebiscite and the proclamation of the President is merely the official confirmatory

declaration of an act which was actually done by the Filipino people in adopting the Constitution when

they cast their votes on the date of the plebiscite.

MR. LERUM. Madam President, may I be recognized.

THE PRESIDENT. Commissioner Lerum is recognized.

MR. LERUM. I am in favor of the Davide amendment because we have to fix a date for the effectivity of

the Constitution. Suppose the announcement is delayed by, say, 10 days or a month, what happens to the

obligations and rights that accrue upon the approval of the Constitution? So I think we must have adefinite date. I am, therefore, in favor of the Davide amendment.


THE PRESIDENT. Commissioner Maambong is recognized.

MR. MAAMBONG. With the theory of the Commissioner, would there be a necessity for the Commission

on Elections to declare the results of the canvass?



FR. BERNAS. There would be because it is the Commission on Elections which makes the official

announcement of the results.

MR. MAAMBONG. My next question which is the final one is: After the Commision on Elections has

declared the results of the canvass, will there be a necessity for the President to make a proclamation of

the results of the canvass as submitted by the Commission on Elections?

FR. BERNAS. I would say there would be no necessity, Madam President.

MR. MAAMBONG. In other words, the President may or may not make the proclamation whether the

Constitution has been ratified or not.

FR. BERNAS. I would say that the proclamation made by the President would be immaterial because under

the law, the administration of all election laws is under an independent Commission on Elections. It is the

Commission on Elections which announces the results.

MR. MAAMBONG. But nevertheless, the President may make the proclamation.

FR. BERNAS. Yes, the President may. And if what he says contradicts what the Commission on Elections

says, it would have no effect. I would only add that when we say that the date of effectivity is on the day

of the casting of the votes, what we mean is that the Constitution takes effect on every single minute and

every single second of that day, because the Civil Code says a day has 24 hours.

So that even if the votes are cast in the morning, the Constitution is really effective from the previous

midnight. So that when we adopted the new rule on citizenship, the children of Filipino mothers or

anybody born on the date of effectivity of the 1973 Constitution, which is January 17, 1973, are natural-

born citizens, no matter what time of day or night.

MR. MAAMBONG. Could we, therefore, safely say that whatever date is the publication of the results of

the canvass by the COMELEC retroacts to the date of the plebiscite?


MR. MAAMBONG. I thank the Commissioner.

MR. GUINGONA. Madam President.

THE PRESIDENT. Commissioner Guingona is recognized.

MR. GUINGONA. Mention was made about the need for having a definite date. I think it is precisely the

proposal of Commissioner Bernas which speaks of the date (of ratification that would have a definite

date, because there would be no definite date if we depend upon the canvassing by the COMELEC .

Thank you,

THE PRESIDENT. Commissioner Concepcion is recognized.

MR. CONCEPCION. Thank you, Madam President.

Whoever makes the announcement as to the result of the plebiscite, be it the COMELEC or the President,



would announce that a majority of the votes cast on a given date was in favor of the Constitution. And

that is the date when the Constitution takes effect, apart from the fact that the provision on the drafting

or amendment of the Constitution provides that a constitution becomes effective upon ratification by a

majority of the votes cast, although I would not say from the very beginning of the date of election

because as of that time it is impossible to determine whether there is a majority. At the end of the day of

election or plebiscite, the determination is made as of that time-the majority of the votes cast in a

plebiscite held on such and such a date. So that is the time when the new Constitution will be consideredratified and, therefore, effective.

THE PRESIDENT. May we now hear Vice-President Padilla.

MR. PADILLA. Madam President, I am against the proposed amendment of Commissioner Davide and I

support the view of Commissioner Bernas and the others because the ratification of the Constitution is on

the date the people, by a majority vote, have cast their votes in favor of the Constitution. Even in civil law,

if there is a contract, say, between an agent and a third person and that contract is confirmed or ratified

by the principal, the validity does not begin on the date of ratification but it retroacts from the date the

contract was executed.

Therefore, the date of the Constitution as ratified should retroact to the date that the people have casttheir affirmative votes in favor of the Constitution.


THE PRESIDENT. Commissioner Maambong is recognized

MR. MAAMBONG. We will now ask once more Commissioner Davide if he is insisting on his amendment

MR. DAVIDE. In view of the explanation and overwhelming tyranny of the opinion that it will be effective

on the very day of the plebiscite, I am withdrawing my amendment on the assumption that any of the

following bodies the Office of the President or the COMELEC will make the formal announcement of the

results.

MR. RAMA. Madam President, we are now ready to vote on the original provision as stated by the

committee.

MR. MAAMBONG. The committee will read again the formulation indicated in the original committee

report as Section 12.

This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a

plebiscite called for the purpose and shall supersede all previous Constitutions.

We ask for a vote, Madam President.

V O T I N G

THE PRESIDENT. As many as are in favor, please raise their hand. (Several Members raised their hands.)

As many as are against, please raise their hand. (No Member raised his hand.)

The results show 35 votes in favor and none against; Section 12 is approved. 2



The Court next holds as a consequence of its declaration at bar that the Constitution took effect on the

date of its ratification in the plebiscite held on February 2, 1987, that: (1) the Provisional Constitution

promulgated on March 25, 1986 must be deemed to have been superseded by the 1987 Constitution on

the same date February 2, 1987 and (2) by and after said date, February 2, 1987, absent any saying clause

to the contrary in the Transitory Article of the Constitution, respondent OIC Governor could no longer

exercise the power to replace petitioners in their positions as Barangay Captain and Councilmen. Hence,

the attempted replacement of petitioners by respondent OIC Governor's designation on February 8, 1987of their successors could no longer produce any legal force and effect. While the Provisional Constitution

provided for a one-year period expiring on March 25, 1987 within which the power of replacement could

be exercised, this period was shortened by the ratification and effectivity on February 2, 1987 of the

Constitution. Had the intention of the framers of the Con stitution been otherwise, they would have so

provided for in the Transitory Article, as indeed they provided for multifarious transitory provisions in

twenty six sections of Article XVIII, e.g. extension of the six-year term of the incumbent President and

Vice-President to noon of June 30, 1992 for purposes of synchronization of elections, the continued

exercise of legislative powers by the incumbent President until the convening of the first Congress, etc.

A final note of clarification, as to the statement in the dissent that "the appointments of some seven

Court of Appeals Justices, 71 provincial fiscals and 55 city fiscals reported extended (by) the President on

February 2, 1987 . . . could be open to serious questions," in view of the provisions of Sections 8 (1) and 9,

Article VIII of the Constitution which require prior endorsement thereof by the Judicial and Bar Council

created under the Constitution. It should be stated for the record that the reported date of the

appointments, February 2, 1987, is incorrect. The official records of the Court show that the appointments

of the seven Court of Appeals Justices were transmitted to this Court on February 1, 1987 and they were

all appointed on or before January 31, 1987. 3

(Similarly, the records of the Department of Justice likewise

show that the appointment papers of the last batch of provincial and city fiscals signed by the President in

completion of the reorganization of the prosecution service were made on January 31, 1987 and

transmitted to the Department on February 1, 1987.) It is also a matter of record that since February 2,

1987, no appointments to the Judiciary have been extended by the President, pending the constitution of

the Judicial and Bar Council, indicating that the Chief Executive has likewise considered February 2, 1987

as the effective date of the Constitution, as now expressly declared by the Court.

CRUZ, J., concurring.

In her quiet and restrained manner, Justice Herrera is able to prove her point with more telling effect than

the tones of thunder. She has written another persuasive opinion, and I am delighted to concur. I note

that it in effect affirms my dissents in the De la Serna, Zamora, Duquing and Bayas cases, where I

submitted that the local OICs may no longer be summarily replaced, having acquired security of tenure

under the new Constitution. Our difference is that whereas I would make that right commence on

February 25, 1987, after the deadline set by the Freedom Constitution, Justice Herrera would opt for

February 2, 1987, when the new Constitution was ratified. I yield to that better view and agree with her

ponencia completely.

SARMIENTO, J., Dissenting.

With due respect to the majority I register this dissent.

While I agree that the one-year deadline prescribed by Section 2, Article III of the Provisional Constitution

with respect to the tenure of government functionaries, as follows:

SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue

in office until otherwise provided by proclamation or executive order or upon the designation or




year from February 25, 1986.

was cut short by the ratification of the 1987 Constitution, I entertain serious doubts whether or not that

cut-off period began on February 2, 1987, the date of the plebiscite held to approve the new Charter. To

my mind the 1987 constitution took effect on February 11, 1987, the date the same was proclaimed

ratified pursuant to Proclamation No. 58 of the President of the Philippines, and not February 2, 1987,

plebiscite day.

I rely, first and foremost, on the language of the 1987 Charter itself, thus:

Sec. 27. This Constitution shag take effect immediately upon its ratification by a majority of the votes cast

in a plebiscite held for the purpose and shall supersede all previous Constitutions.

It is my reading of this provision that the Constitution takes effect on the date its ratification shall have

been ascertained, and not at the time the people cast their votes to approve or reject it. For it cannot be

logically said that Constitution was ratified during such a plebiscite, when the will of the people as of that

time, had not, and could not have been, vet determined.

Other than that, pragmatic considerations compel me to take the view.

I have no doubt that between February 2, and February 11, 1987 the government performed acts that

would have been valid under the Provisional Constitution but would otherwise have been void under the

1987 Charter. I recall, in particular, the appointments of some seven Court of Appeals Justices, 71

provincial fiscals, and 55 city fiscals the President reportedly extended on February 2, 1987. 1 Under

Sections 8 (1) and 9, Article VIII, of the l987 Constitution, as follows:

xxx xxx xxx

Sec. 8. (I)A Judicial and Bar Council is hereby created under the supervision of the Supreme Court

composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the

Congress as ex oficio Members, a representative of the Integrated Bar, a professor of law, a retiredMember of the Supreme Court, and a representative of the private sector.

xxx xxx xxx

2Sec. 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the

President from a list of at least three nominees prepared by the Judicial and Bar Council for every

vacancy, Such appointments need no confirmation.

xxx xxx xxx

such appointments could be open to serious questions.

Since 1973, moreover, we have invariably reckoned the effectivity of the Constitution as well as the

amendments thereto from the date it is proclaimed ratified.

In Magtoto v. Manguera,2 we held that the 1973 Constitution became in force and effect on January 17,

1973, the date Proclamation No. 1102, "Announcing the Ratification by the Filipino People of the

Constitution Proposed by the 1971 Constitutional Convention," was issued, although Mr. Justice, now

Chief Justice, Teehankee would push its effectivity date further to April 17, 1973, the date our decision in

Javellana v. Executive Secretary ,3 became final. And this was so notwithstanding Section 16, Article XVII,



of the 1973 Constitution, thus:

SEC. 16. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast

in a plebiscite called for the purpose and, except as herein provided, shall supersede the Constitution of

nineteen-hundred and thirty- five and all amendments thereto.

On October 27, 1976, then President Marcos promulgated Proclamation no. 1595, proclaiming theratification of the 1976 amendments submitted in the plebiscite of October 16- 17, 1976. The

Proclamation states, inter alia, that.

By virtue-of the powers vested in me by law, I hereby proclaim all the amendments embodied in this

certificate as duly ratified by the Filipino people in the referendum — plebiscite held Oct. 16-17, 1976 and

are therefore effective and in full force and effect as of this date.

It shall be noted that under Amendment No. 9 of the said 1976 amendments.

These amendments shall take effect after the incumbent President shall have proclaimed that they have

been ratified by a majority of the votes cast in the referendum-plebiscite.

On April 1, 1980, the then Chief Executive issued Proclamation no. 1959, "Proclaiming the Ratification by

the Filipino People of the Amendments of Section 7, Article X of the Constitution" (lengthening the terms

of office of judges and justices). The Proclamation provides:

[t]he above-quoted amendment has been duly ratified by a majority of the votes cast in the plebiscite

held, together with the election for local officials, on January 30, 1980, and that said amendment is

hereby declared to take effect immediately.

It shall be noted that under Resolution No. 21, dated December 18, 1979, the proposed amendment shall

take effect on the date the incumbent President/Prime Minister shall proclaim its ratification.

On April 7, 1981, Proclamation No. 2077 was issued "Proclaiming the Ratification in the Plebiscite of April7, 1981 of the Amendments to the Constitution Embodied in Batas Pambansa Blg. 122 and Declaring

Them Therefore Effective and in Full Force and Effect." The Proclamation, in declaring the said

amendments duly approved, further declared them "[e]ffective and in full force and in effect as of the

date of this Proclamation," It shall be noted, in this connection, that under Resolutions Nos. I and 2 of the

Batasang Pambansa, Third Regular Session, Sitting as a Constituent Assembly, which parented these

amendments, the same:

... shall become valid as part of the Constitution when approved by a majority of the votes cast in a

plebiscite to be held pursuant to Section 2, Article XVI of the Constitution.

On the other hand, Batas Pambansa Blg. 122, "An Act to Submit to the Filipino People, for Ratification or

Rejection, the Amendment to the Constitution of the Philippines, Proposed by the Batasang Pambansa,Sitting as a Constituent Assembly, in its Resolutions Numbered Three, Two, and One, and to Appropriate

Funds Therefore," provides, as follows:

SEC. 7. The Commission on Elections, sitting en banc, shad canvass and proclaim the result of the

plebiscite using the certificates submitted to it, duly authenticated and certified by the Board of

Canvassers of each province or city.

We have, finally, Proclamation No. 2332, "Proclaiming the Ratification in the Plebiscite of January 27,



1984, of the Amendments to the Constitution Embodied in Batasang Pambansa Resolutions Nos. 104, 105,

110, 111, 112 and 113." It states that the amendments:

....are therefore effective and in full force and effect as of the date of this Proclamation.

It carries out Resolution no. 104 itself (as well as Resolutions Nos. 110 and 112 and Section 9, Batas Blg.

643), which states, that:

The proposed amendments shall take effect on the date the President of the Philippines shall proclaim

that they have been ratified by a majority of the votes cast in the plebiscite held for the purpose, but not

later than three months from the approval of the amendments.

albeit Resolutions Nos. 105, 111, and 113 provide, that:

These amendments shall be valid as a part of the Constitution when approved by a majority of the votes

cast in an election/plebiscite at which it is submitted to the people for their ratification pursuant to

Section 2 of Article XVI of the Constitution, as amended.

That a Constitution or amendments thereto take effect upon proclamation of their ratification and not at

the time of the plebiscite is a view that is not peculiar to the Marcos era.

The Resolution of Both Houses (of Congress) in Joint Session on the March 11, 1947 plebiscite called

pursuant to Republic Act No. 73 and the Resolution of Both Houses (of Congress) adopted on September

18, 1946, was adopted on April 9,1947. The April 9, 1947 Resolution makes no mention of a retroactive

application. Accordingly, when the incumbent President (Mrs. Corazon C. Aquino) proclaimed on February

11, 1987, at Malacanang Palace:

... that the Constitution of the Republic of the Philippines adopted by the Constitutional Commission of

1986, including the Ordinance appended thereto, has been duly ratified by the Filipino people and is

therefore effective and in full force and effect.4

the 1987 Constitution, in point of fact, came into force and effect, I hold that it took effect at no other

time.

I submit that our ruling in Ponsica v. Ignalaga5 in which we declared, in passing, that the new Charter was

ratified on February 2, 1987, does not in any way weaken this dissent. As I stated, the remark was said in

passing-we did not resolve the case on account of a categorical holding that the 1987 Constitution came

to life on February 2, 1987. In any event, if we did, I now call for its re-examination.

I am therefore of the opinion, consistent with the views expressed above, that the challenged dismissals

done on February 8, 1987 were valid, the 1987 Constitution not being then as yet in force.



De Leon v. Esguerra Case Digest

De Leon v. Esguerra, 153 SCRA 602, August, 31, 1987

(En Banc), J. Melencio-Herrera

Facts: On May 17, 1982, petitioner Alfredo M. De Leon was elected Barangay Captain together with theother petitioners as Barangay Councilmen of Barangay Dolores, Muncipality of Taytay, Province of Rizal in

a Barangay election held under Batas Pambansa Blg. 222, otherwise known as Barangay Election Act of

1982.

On February 9, 1987, petitioner De Leon received a Memorandum antedated December 1, 1986 but

signed by respondent OIC Governor Benjamin Esguerra on February 8, 1987 designating respondent

Florentino G. Magno as Barangay Captain of Barangay Dolores and the other respondents as members of

Barangay Council of the same Barangay and Municipality.

Petitoners prayed to the Supreme Court that the subject Memoranda of February 8, 1987 be declared null

and void and that respondents be prohibited by taking over their positions of Barangay Captain and

Barangay Councilmen.

Petitioners maintain that pursuant to Section 3 of the Barangay Election Act of 1982 (BP Blg. 222), their

terms of office shall be six years which shall commence on June 7, 1988 and shall continue until their

successors shall have elected and shall have qualified. It was also their position that with the ratification

of the 1987 Philippine Constitution, respondent OIC Governor no longer has the authority to replace them

and to designate their successors.

On the other hand, respondents contend that the terms of office of elective and appointive officials were

abolished and that petitioners continued in office by virtue of Sec. 2, Art. 3 of the Provisional Constitution

and not because their term of six years had not yet expired; and that the provision in the Barangay

Election Act fixing the term of office of Barangay officials to six years must be deemed to have been

repealed for being inconsistent with Sec. 2, Art. 3 of the Provisional Constitution.

Issue: Whether or not the designation of respondents to replace petitioners was validly made during the

one-year period which ended on Feb 25, 1987.

Ruling: Supreme Court declared that the Memoranda issued by respondent OIC Gov on Feb 8, 1987

designating respondents as Barangay Captain and Barangay Councilmen of Barangay Dolores, Taytay, Rizal

has no legal force and effect.

The 1987 Constitution was ratified in a plebiscite on Feb 2, 1987, therefore, the Provisional Constitution

must be deemed to have superseded. Having become inoperative, respondent OIC Gov could no longer

rely on Sec 2, Art 3, thereof to designate respondents to the elective positions occupied by petitioners.

Relevantly, Sec 8, Art 1 of the 1987 Constitution further provides in part:

"Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined

by law, shall be three years x x x."

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