MAXIMO CALALANG, Petitioner, v. A. D. WILLIAMS, ET AL., Respondents. convenience of the public.
venience of the public. In enacting said law, therefore, the National Assembly
Maximo Calalang in his own behalf.
Solicitor General Ozaeta and Assistant Solicitor General Amparo for
respondents Williams, Fragante and Bayan
City Fiscal Mabanag for the other respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; CONSTITUTIONALITY OF COMMONWEALTH ACT
No. 648; DELEGATION OF LEGISLATIVE POWER; AUTHORITY OF DIRECTOR
OF PUBLIC WORKS AND SECRETARY OF PUBLIC WORKS AND
COMMUNICATIONS TO PROMULGATE RULES AND REGULATIONS. — The
provisions of section 1 of Commonwealth Act No. 648 do not confer legislative power
upon the Director of Public Works and the Secretary of Public Works and
Communications. The authority therein conferred upon them and under which they
promulgated the rules and regulations now complained of is not to determine what
public policy demands but merely to carry out the legislative policy laid down by the
National Assembly in said Act, to wit, "to promote safe transit upon, and avoid
obstructions on, roads and streets designated as national roads by acts of the
National Assembly or by executive orders of the President of the Philippines" and to
close them temporarily to any or all classes of traffic "whenever the condition of the
road or the traffic thereon makes such action necessary or advisable in the public
convenience and interest." The delegated power, if at all, therefore, is not the
determination of what the law shall be, but merely the ascertainment of the facts and
circumstances upon which the application of said law is to be predicated. To
promulgate rules and regulations on the use of national roads and to determine when
and how long a national road should be closed to traffic, in view of the condition of
the road or the traffic thereon and the requirements of public convenience and
interest, is an administrative function which cannot be directly discharged by the
National Assembly. It must depend on the discretion of some other government
official to whom is confided the duty of determining whether the proper occasion
exists for executing the law. But it cannot be said that the exercise of such discretion
is the making of the law.
2. ID.; ID.; POLICE POWER; PERSONAL LIBERTY; GOVERNMENTAL
AUTHORITY. — Commonwealth Act No. 548 was passed by the National Assembly
in the exercise of the paramount police power of the state. Said Act, by virtue of
which the rules and regulations complained of were promulgated, aims to promote
safe transit upon and avoid obstructions on national roads, in the interest and
was prompted by considerations of public convenience and welfare. It was inspired
by a desire to relieve congestion of traffic, which is, to say the least, a menace to
public safety. Public welfare, then, lies at the bottom of the enactment of said law,
and the state in order to promote the general welfare may interfere with personal
liberty, with property, and with business and occupations. Persons and property may
be subjected to all kinds of restraints and burdens, in order to secure the general
comfort, health, and prosperity of the state (U.S. v. Gomer Jesus, 31 Phil., 218). To
this fundamental aim of our Government the rights of the individual are subordinated.
Liberty is a blessing without which life is a misery, but liberty should not be made to
prevail over authority because then society will fall into anarchy. Neither should
authority be made to prevail over liberty because then the individual will fall into
slavery. The citizen should achieve the required balance of liberty and authority in his
mind through education and, personal discipline, so that there may be established
the resultant equilibrium, which means peace and order and happiness for all. The
moment greater authority is conferred upon the government, logically so much is
withdrawn from the residuum of liberty which resides in the people. The paradox lies
in the fact that the apparent curtailment of liberty is precisely the very means of
insuring its preservation.
3. ID.; ID.; SOCIAL JUSTICE. — Social justice is "neither communism, nor
despotism, nor atomism, nor anarchy," but the humanization of laws and the
equalization of social and economic forces by the State so that justice in its rational
and objectively secular conception may at least be approximated. Social justice
means the promotion of the welfare of all the people, the adoption by the
Government of measures calculated to insure economic stability of all the competent
elements of society, through the maintenance of a proper economic and social
equilibrium in the interrelations of the members of the community, constitutionally,
through the adoption of measures legally justifiable, or extra-constitutionally, through
the exercise of powers underlying the existence of all governments on the time-
honored principle of salus populi est suprema lex. Social justice, therefore, must be
founded on the recognition of the necessity of interdependence among divers and
diverse units of a society and of the protection that should be equally and evenly
extended to all groups as a combined force in our social and economic life,
consistent with the fundamental and paramount objective of the state of promoting
the health, comfort, and quiet of all persons, and of bringing about "the greatest good
to the greatest number."
DECISION
 LAUREL, J.:
Maximo Calalang, in his capacity as a private citizen and as a taxpayer of Manila,
brought before this court this petition for a writ of prohibition against the respondents,
A. D. Williams, as Chairman of the National Traffic Commission; Vicente Fragante,
as Director of Public Works; Sergio Bayan, as Acting Secretary of Public Works and
Communications; Eulogio Rodriguez, as Mayor of the City of Manila; and Juan
Dominguez, as Acting Chief of Police of Manila.
It is alleged in the petition that the National Traffic Commission, in its resolution of
July 17, 1940, resolved to recommend to the Director of Public Works and to the
Secretary of Public Works and Communications that animal-drawn vehicles be
prohibited from passing along Rosario Street extending from Plaza Calderon de la
Barca to Dasmariñas Street, from 7:30 a.m. to 12:30 p.m. and from 1:30 p.m. to 5:30
p.m.; and along Rizal Avenue extending from the railroad crossing at Antipolo Street
to Echague Street, from 7 a.m. to 11 p.m., from a period of one year from the date of
the opening of the Colgante Bridge to traffic; that the Chairman of the National Traffic
Commission, on July 18, 1940 recommended to the Director of Public Works the
adoption of the measure proposed in the resolution aforementioned, in pursuance of
the provisions of Commonwealth Act No. 548 which authorizes said Director of
Public Works, with the approval of the Secretary of Public Works and
Communications, to promulgate rules and regulations to regulate and control the use
of and traffic on national roads; that on August 2, 1940, the Director of Public Works,
in his first indorsement to the Secretary of Public Works and Communications,
recommended to the latter the approval of the recommendation made by the
Chairman of the National Traffic Commission as aforesaid, with the modification that
the closing of Rizal Avenue to traffic to animal-drawn vehicles be limited to the
portion thereof extending from the railroad crossing at Antipolo Street to Azcarraga
Street; that on August 10, 1940, the Secretary of Public Works and Communications,
in his second indorsement addressed to the Director of Public Works, approved the
recommendation of the latter that Rosario Street and Rizal Avenue be closed to
traffic of animal-drawn vehicles, between the points and during the hours as above
indicated, for a period of one year from the date of the opening of the Colgante
Bridge to traffic; that the Mayor of Manila and the Acting Chief of Police of Manila
have enforced and caused to be enforced the rules and regulations thus adopted;
that as a consequence of such enforcement, all animal-drawn vehicles are not
allowed to pass and pick up passengers in the places above-mentioned to the
detriment not only of their owners but of the riding public as well.
It is contended by the petitioner that Commonwealth Act No. 548 by which the
Director of Public Works, with the approval of the Secretary of Public Works and
Communications, is authorized to promulgate rules and regulations for the regulation
and control of the use of and traffic on national roads and streets is unconstitutional
because it constitutes an undue delegation of legislative power. This contention is
untenable. As was observed by this court in Rubi v. Provincial Board of Mindoro (39
Phil, 660, 700), "The rule has nowhere been better stated than in the early Ohio case
decided by Judge Ranney, and since followed in a multitude of cases, namely: ’The
true distinction therefore is between the delegation of power to make the law, which
necessarily involves a discretion as to what it shall be, and conferring an authority or
discretion as to its execution, to be exercised under and in pursuance of the law. The
first cannot be done; to the latter no valid objection can be made.’ (Cincinnati, W. &
Z. R. Co. v. Comm’rs. Clinton County, 1 Ohio St., 88.) Discretion, as held by Chief
Justice Marshall in Wayman v. Southard (10 Wheat., 1) may be committed by the
Legislature to an executive department or official. The Legislature may make
decisions of executive departments or subordinate officials thereof, to whom it has
committed the execution of certain acts, final on questions of fact. (U.S. v. Kinkead,
248 Fed., 141.) The growing tendency in the decisions is to give prominence to the
’necessity’ of the case."cralaw virtua1aw library
Section 1 of Commonwealth Act No. 548 reads as follows:jgc:chanrobles.com.ph
"SECTION 1. To promote safe transit upon, and avoid obstructions on, roads and
streets designated as national roads by acts of the National Assembly or by
executive orders of the President of the Philippines, the Director of Public Works,
with the approval of the Secretary of Public Works and Communications, shall
promulgate the necessary rules and regulations to regulate and control the use of
and traffic on such roads and streets. Such rules and regulations, with the approval
of the President, may contain provisions controlling or regulating the construction of
buildings or other structures within a reasonable distance from along the national
roads. Such roads may be temporarily closed to any or all classes of traffic by the
Director of Public Works and his duly authorized representatives whenever the
condition of the road or the traffic thereon makes such action necessary or advisable
in the public convenience and interest, or for a specified period, with the approval of
the Secretary of Public Works and Communications."cralaw virtua1aw library
The above provisions of law do not confer legislative power upon the Director of
Public Works and the Secretary of Public Works and Communications. The authority
therein conferred upon them and under which they promulgated the rules and
regulations now complained of is not to determine what public policy demands but
merely to carry out the legislative policy laid down by the National Assembly in said
Act, to wit, "to promote safe transit upon and avoid obstructions on, roads and
streets designated as national roads by acts of the National Assembly or by
executive orders of the President of the Philippines" and to close them temporarily to
any or all classes of traffic "whenever the condition of the road or the traffic makes
such action necessary or advisable in the public convenience and interest." The
delegated power, if at all, therefore, is not the determination of what the law shall be,
but merely the ascertainment of the facts and circumstances upon which the
application of said law is to be predicated. To promulgate rules and regulations on
the use of national roads and to determine when and how long a national road
should be closed to traffic, in view of the condition of the road or the traffic thereon
and the requirements of public convenience and interest, is an administrative
function which cannot be directly discharged by the National Assembly. It must
depend on the discretion of some other government official to whom is confided the
duty of determining whether the proper occasion exists for executing the law. But it
cannot be said that the exercise of such discretion is the making of the law. As was
said in Locke’s Appeal (72 Pa. 491): "To assert that a law is less than a law, because
it is made to depend on a future event or act, is to rob the Legislature of the power to
act wisely for the public welfare whenever a law is passed relating to a state of affairs
not yet developed, or to things future and impossible to fully know." The proper
distinction the court said was this: "The Legislature cannot delegate its power to
make the law; but it can make a law to delegate a power to determine some fact or
state of things upon which the law makes, or intends to make, its own action depend.
To deny this would be to stop the wheels of government. There are many things
upon which wise and useful legislation must depend which cannot be known to the
law-making power, and, must, therefore, be a subject of inquiry and determination
outside of the halls of legislation." (Field v. Clark, 143 U. S. 649, 694; 36 L. Ed. 294.)
In the case of People v. Rosenthal and Osmeña, G.R. Nos. 46076 and 46077,
promulgated June 12, 1939, and in Pangasinan Transportation v. The Public Service
Commission, G.R. No. 47065, promulgated June 26, 1940, this Court had occasion
to observe that the principle of separation of powers has been made to adapt itself to
the complexities of modern governments, giving rise to the adoption, within certain
limits, of the principle of "subordinate legislation," not only in the United States and
England but in practically all modern governments. Accordingly, with the growing
complexity of modern life, the multiplication of the subjects of governmental
regulations, and the increased difficulty of administering the laws, the rigidity of the
theory of separation of governmental powers has, to a large extent, been relaxed by
permitting the delegation of greater powers by the legislative and vesting a larger
amount of discretion in administrative and executive officials, not only in the
execution of the laws, but also in the promulgation of certain rules and regulations
calculated to promote public interest.
The petitioner further contends that the rules and regulations promulgated by the
respondents pursuant to the provisions of Commonwealth Act No. 548 constitute an
unlawful interference with legitimate business or trade and abridge the right to
personal liberty and freedom of locomotion. Commonwealth Act No. 548 was passed
by the National Assembly in the exercise of the paramount police power of the state.
Said Act, by virtue of which the rules and regulations complained of were
promulgated, aims to promote safe transit upon and avoid obstructions on national
roads, in the interest and convenience of the public. In enacting said law, therefore,
the National Assembly was prompted by considerations of public convenience and
welfare. It was inspired by a desire to relieve congestion of traffic. which is, to say the
least, a menace to public safety. Public welfare, then, lies at the bottom of the
enactment of said law, and the state in order to promote the general welfare may
interfere with personal liberty, with property, and with business and occupations.
Persons and property may be subjected to all kinds of restraints and burdens, in
order to secure the general comfort, health, and prosperity of the state (U.S. v.
Gomez Jesus, 31 Phil., 218). To this fundamental aim of our Government the rights
of the individual are subordinated. Liberty is a blessing without which life is a misery,
but liberty should not be made to prevail over authority because then society will fall
into anarchy. Neither should authority be made to prevail over liberty because then
the individual will fall into slavery. The citizen should achieve the required balance of
liberty and authority in his mind through education and personal discipline, so that
there may be established the resultant equilibrium, which means peace and order
and happiness for all. The moment greater authority is conferred upon the
government, logically so much is withdrawn from the residuum of liberty which
resides in the people. The paradox lies in the fact that the apparent curtailment of
liberty is precisely the very means of insuring its preservation.
The scope of police power keeps expanding as civilization advances. As was said in
the case of Dobbins v. Los Angeles (195 U.S. 223, 238; 49 L. ed. 169), "the right to
exercise the police power is a continuing one, and a business lawful today may in the
future, because of the changed situation, the growth of population or other causes,
become a menace to the public health and welfare, and be required to yield to the
public good." And in People v. Pomar (46 Phil., 440), it was observed that
"advancing civilization is bringing within the police power of the state today things
which were not thought of as being within such power yesterday. The development
of civilization, the rapidly increasing population, the growth of public opinion, with an
increasing desire on the part of the masses and of the government to look after and
care for the interests of the individuals of the state, have brought within the police
power many questions for regulation which formerly were not so considered."cralaw
virtua1aw library
The petitioner finally avers that the rules and regulations complained of infringe upon
the constitutional precept regarding the promotion of social justice to insure the well-
being and economic security of all the people. The promotion of social justice,
however, is to be achieved not through a mistaken sympathy towards any given
group. Social justice is "neither communism, nor despotism, nor atomism, nor
anarchy," but the humanization of laws and the equalization of social and economic
forces by the State so that justice in its rational and objectively secular conception
may at least be approximated. Social justice means the promotion of the welfare of
all the people, the adoption by the Government of measures calculated to insure
economic stability of all the competent elements of society, through the maintenance
of a proper economic and social equilibrium in the interrelations of the members of
the community, constitutionally, through the adoption of measures legally justifiable,
or extra-constitutionally, through the exercise of powers underlying the existence of
all governments on the time-honored principle of salus populi est suprema lex.

Social justice, therefore, must be founded on the recognition of the necessity of

interdependence among divers and diverse units of a society and of the protection
that should be equally and evenly extended to all groups as a combined force in our
social and economic life, consistent with the fundamental and paramount objective of
the state of promoting the health, comfort, and quiet of all persons, and of bringing
about "the greatest good to the greatest number."cralaw virtua1aw library

In view of the foregoing, the writ of prohibition prayed for is hereby denied, with costs
against the petitioner. So ordered.
ALFREDO L. AZARCON, petitioner, vs. SANDIGANBAYAN, PEOPLE OF THE
PHILIPPINES and JOSE C. BATAUSA, respondents.
DECISION
PANGANIBAN, J.:
Does the Sandiganbayan have jurisdiction over a private individual who is
charged with malversation of public funds as a principal after the said individual had
been designated by the Bureau of Internal Revenue as a custodian of distrained
property? Did such accused become a public officer and therefore subject to the
graft courts jurisdiction as a consequence of such designation by the BIR?
These are the main questions in the instant petition for review of respondent
Sandiganbayans Decision[1] in Criminal Case No. 14260 promulgated on March 8,
1994, convicting petitioner of malversation of public funds and property, and
Resolution[2] dated June 20, 1994, denying his motion for new trial or reconsideration
thereof.
The Facts
Petitioner Alfredo Azarcon owned and operated an earth-moving business,
hauling dirt and ore.[3] His services were contracted by the Paper Industries
Corporation of the Philippines (PICOP) at its concession in Mangagoy, Surigao del
Sur. Occasionally, he engaged the services of sub-contractors like Jaime Ancla
whose trucks were left at the formers premises.[4] From this set of circumstances
arose the present controversy.
x x x It appears that on May 25, 1983, a Warrant of Distraint of Personal Property
was issued by the Main Office of the Bureau of Internal Revenue (BIR) addressed to
the Regional Director (Jose Batausa) or his authorized representative of Revenue
Region 10, Butuan City commanding the latter to distraint the goods, chattels or
effects and other personal property of Jaime Ancla, a sub-contractor of accused
Azarcon and, a delinquent taxpayer. The Warrant of Garnishment was issued to
accused Alfredo Azarcon ordering him to transfer, surrender, transmit and/or remit to
BIR the property in his possession owned by taxpayer Ancla. The Warrant of
Garnishment was received by accused Azarcon on June 17, 1985.[5]
Petitioner Azarcon, in signing the Receipt for Goods, Articles, and Things Seized
Under Authority of the National Internal Revenue, assumed the undertakings
specified in the receipt the contents of which are reproduced as follows:
(I), the undersigned, hereby acknowledge to have received from Amadeo V. San
Diego, an Internal Revenue Officer, Bureau of Internal Revenue of the Philippines,
the following described goods, articles, and things:
Kind of property --- Isuzu dump truck
Motor number --- E120-229598
Chassis No. --- SPZU50-1772440
Number of CXL --- 6
Color --- Blue
Owned By --- Mr. Jaime Ancla
the same having been this day seized and left in (my) possession pending
investigation by the Commissioner of Internal Revenue or his duly authorized
representative. (I) further promise that (I) will faithfully keep, preserve, and, to the
best of (my) ability, protect said goods, articles, and things seized from defacement,
demarcation, leakage, loss, or destruction in any manner; that (I) will neither alter nor
remove, nor permit others to alter or remove or dispose of the same in any manner
without the express authority of the Commissioner of Internal Revenue; and that (I)
will produce and deliver all of said goods, articles, and things upon the order of any
court of the Philippines, or upon demand of the Commissioner of Internal Revenue or
any authorized officer or agent of the Bureau of Internal Revenue.[6]
Subsequently, Alfredo Azarcon wrote a letter dated November 21, 1985 to the
BIRs Regional Director for Revenue Region 10 B, Butuan City stating that
x x x while I have made representations to retain possession of the property and
signed a receipt of the same, it appears now that Mr. Jaime Ancla intends to cease
his operations with us. This is evidenced by the fact that sometime in August, 1985
he surreptitiously withdrew his equipment from my custody. x x x In this connection,
may I therefore formally inform you that it is my desire to immediately relinquish
whatever responsibilities I have over the above-mentioned property by virtue of the
receipt I have signed. This cancellation shall take effect immediately. x x x .[7]
Incidentally, the petitioner reported the taking of the truck to the security manager of
PICOP, Mr. Delfin Panelo, and requested him to prevent this truck from being taken
out of the PICOP concession. By the time the order to bar the trucks exit was given,
however, it was too late.[8]
Regional Director Batausa responded in a letter dated May 27, 1986, to wit:
An analysis of the documents executed by you reveals that while you are (sic) in
possession of the dump truck owned by JAIME ANCLA, you voluntarily assumed the
liabilities of safekeeping and preserving the unit in behalf of the Bureau of Internal
Revenue. This is clearly indicated in the provisions of the Warrant of Garnishment
which you have signed, obliged and committed to surrender and transfer to this
office. Your failure therefore, to observe said provisions does not relieve you of your
responsibility.[9]
Thereafter, the Sandiganbayan found that
On 11 June 1986, Mrs. Marilyn T. Calo, Revenue Document Processor of Revenue
Region 10 B, Butuan City, sent a progress report to the Chief of the Collection
Branch of the surreptitious taking of the dump truck and that Ancla was renting out
the truck to a certain contractor by the name of Oscar Cueva at PICOP (Paper
Industries Corporation of the Philippines, the same company which engaged
petitioners earth moving services), Mangagoy, Surigao del Sur. She also suggested
that if the report were true, a warrant of garnishment be reissued against Mr. Cueva
for whatever amount of rental is due from Ancla until such time as the latters tax
liabilities shall be deemed satisfied. x x x However, instead of doing so, Director
Batausa filed a letter-complaint against the (herein Petitioner) and Ancla on 22
January 1988, or after more than one year had elapsed from the time of Mrs. Calos
report.[10]
Provincial Fiscal Pretextato Montenegro forwarded the records of the complaint
x x x to the Office of the Tanodbayan on May 18, 1988. He was deputized
Tanodbayan prosecutor and granted authority to conduct preliminary investigation on
August 22, 1988, in a letter by Special Prosecutor Raul Gonzales approved by
Ombudsman (Tanodbayan) Conrado Vasquez.[11]
Along with his co-accused Jaime Ancla, petitioner Azarcon was charged before
the Sandiganbayan with the crime of malversation of public funds or property under
Article 217 in relation to Article 222 of the Revised Penal Code (RPC) in the following
Information[12]filed on January 12, 1990, by Special Prosecution Officer Victor
Pascual:
That on or about June 17, 1985, in the Municipality of Bislig, Province of Surigao del
Sur, Philippines, and within the jurisdiction of this Honorable Court, accused Alfredo
L. Azarcon, a private individual but who, in his capacity as depository/administrator of
property seized or deposited by the Bureau of Internal Revenue, having voluntarily
offered himself to act as custodian of one Isuzu Dumptruck (sic) with Motor No.
E120-22958, Chasis No. SPZU 50-1772440, and number CXL-6 and was authorized
to be such under the authority of the Bureau of Internal Revenue, has become a
responsible and accountable officer and said motor vehicle having been seized from
Jaime C. Ancla in satisfaction of his tax liability in the total sum of EIGHTY
THOUSAND EIGHT HUNDRED THIRTY ONE PESOS and 59/100 (P80,831.59)
became a public property and the value thereof as public fund, with grave abuse of
confidence and conspiring and confederating with said Jaime C. Ancla, likewise, a
private individual, did then and there wilfully, (sic) unlawfully and feloniously
misappropriate, misapply and convert to his personal use and benefit the
aforementioned motor vehicle or the value thereof in the aforestated amount, by then
and there allowing accused Jaime C. Ancla to remove, retrieve, withdraw and tow
away the said Isuzu Dumptruck (sic) with the authority, consent and knowledge of
the Bureau of Internal Revenue, Butuan City, to the damage and prejudice of the
government in the amount of P80,831.59 in a form of unsatisfied tax liability.
CONTRARY TO LAW.
The petitioner filed a motion for reinvestigation before the Sandiganbayan on
May 14, 1991, alleging that: (1) the petitioner never appeared in the preliminary
investigation;and (2) the petitioner was not a public officer, hence a doubt exists as
to why he was being charged with malversation under Article 217 of the Revised
Penal Code.[13] The Sandiganbayan granted the motion for reinvestigation on May
22, 1991.[14] After the reinvestigation, Special Prosecution Officer Roger Berbano,
Sr., recommended the withdrawal of the information[15] but was overruled by the
Ombudsman.[16]
A motion to dismiss was filed by petitioner on March 25, 1992 on the ground that
the Sandiganbayan did not have jurisdiction over the person of the petitioner since
he was not a public officer.[17] On May 18, 1992, the Sandiganbayan denied the
motion.[18]
When the prosecution finished presenting its evidence, the petitioner then filed a
motion for leave to file demurrer to evidence which was denied on November 16,
1992, for being without merit.[19] The petitioner then commenced and finished
presenting his evidence on February 15, 1993.
The Respondent Courts Decision
On March 8, 1994, respondent Sandiganbayan[20] rendered a Decision,[21] the
dispositive portion of which reads:
WHEREFORE, the Court finds accused Alfredo Azarcon y Leva GUILTY beyond
reasonable doubt as principal of Malversation of Public Funds defined and penalized
under Article 217 in relation to Article 222 of the Revised Penal Code and, applying
the Indeterminate Sentence Law, and in view of the mitigating circumstance of
voluntary surrender, the Court hereby sentences the accused to suffer the penalty of
imprisonment ranging from TEN (10) YEARS and ONE (1) DAY of prision mayor in
its maximum period to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1)
DAY of Reclusion Temporal. To indemnify the Bureau of Internal Revenue the
amount of P80,831.59; to pay a fine in the same amount without subsidiary
imprisonment in case of insolvency; to suffer special perpetual disqualification; and,
to pay the costs.
Considering that accused Jaime Ancla has not yet been brought within the
jurisdiction of this Court up to this date, let this case be archived as against him
without prejudice to its revival in the event of his arrest or voluntary submission to the
jurisdiction of this Court.
SO ORDERED.
Petitioner, through new counsel,[22] filed a motion for new trial or reconsideration
on March 23, 1994, which was denied by the Sandiganbayan in its
Resolution[23] dated December 2, 1994.
Hence, this petition.
The Issues
The petitioner submits the following reasons for the reversal of the
Sandiganbayans assailed Decision and Resolution:
I. The Sandiganbayan does not have jurisdiction over crimes committed
solely by private individuals.
II. In any event, even assuming arguendo that the appointment of a private
individual as a custodian or a depositary of distrained property is sufficient
to convert such individual into a public officer, the petitioner cannot still be
considered a public officer because:
[A]
There is no provision in the National Internal Revenue Code which authorizes the
Bureau of Internal Revenue to constitute private individuals as depositaries of
distrained properties.
[B]
His appointment as a depositary was not by virtue of a direct provision of law, or by
election or by appointment by a competent authority.
III. No proof was presented during trial to prove that the distrained vehicle was
actually owned by the accused Jaime Ancla; consequently, the governments right to
the subject property has not been established.
IV. The procedure provided for in the National Internal Revenue Code concerning the
disposition of distrained property was not followed by the B.I.R., hence the distraint
of personal property belonging to Jaime C. Ancla and found allegedly to be in the
possession of the petitioner is therefore invalid.
V. The B.I.R. has only itself to blame for not promptly selling the distrained property
of accused Jaime C. Ancla in order to realize the amount of back taxes owed by
Jaime C. Ancla to the Bureau.[24]
In fine, the fundamental issue is whether the Sandiganbayan had jurisdiction
over the subject matter of the controversy. Corollary to this is the question of whether
petitioner can be considered a public officer by reason of his being designated by the
Bureau of Internal Revenue as a depositary of distrained property.
The Courts Ruling
The petition is meritorious.
Jurisdiction of the Sandiganbayan
It is hornbook doctrine that in order (to) ascertain whether a court has jurisdiction
or not, the provisions of the law should be inquired into.[25] Furthermore, the
jurisdiction of the court must appear clearly from the statute law or it will not be held
to exist. It cannot be presumed or implied.[26] And for this purpose in criminal cases,
the jurisdiction of a court is determined by the law at the time of commencement of
the action.[27]
In this case, the action was instituted with the filing of this information on
January 12, 1990; hence, the applicable statutory provisions are those of P.D. No.
1606, as amended by P.D. No. 1861 on March 23, 1983, but prior to their
amendment by R.A. No. 7975 on May 16, 1995. At that time, Section 4 of P.D. No.
1606 provided that:
SEC. 4. Jurisdiction. -- The Sandiganbayan shall exercise:
(a) Exclusive original jurisdiction in all cases involving:
(1) Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-
Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2,
Title VII of the Revised Penal Code;
(2) Other offenses or felonies committed by public officers and employees in relation
to their office, including those employed in government-owned or controlled
corporations, whether simple or complexed with other crimes, where the penalty
prescribed by law is higher than prision correccional or imprisonment for six (6)
years, or a fine of P6,000.00: PROVIDED, HOWEVER, that offenses or felonies
mentioned in this paragraph where the penalty prescribed by law does not
exceed prision correccional or imprisonment for six (6) years or a fine of P6,000.00
shall be tried by the proper Regional Trial Court, Metropolitan Trial Court, Municipal
Trial Court and Municipal Circuit Trial Court.
xxxxxxxxx
In case private individuals are charged as co-principals, accomplices or accessories
with the public officers or employees, including those employed in government-
owned or controlled corporations, they shall be tried jointly with said public officers
and employees.
x x x x x x x x x.
The foregoing provisions unequivocally specify the only instances when the
Sandiganbayan will have jurisdiction over a private individual, i.e. when the complaint
charges the private individual either as a co-principal, accomplice or accessory of a
public officer or employee who has been charged with a crime within its jurisdiction.
Azarcon: A Public Officer or A Private Individual?
The Information does not charge petitioner Azarcon of being a co-principal,
accomplice or accessory to a public officer committing an offense under the
Sandiganbayans jurisdiction. Thus, unless petitioner be proven a public officer, the
Sandiganbayan will have no jurisdiction over the crime charged. Article 203 of the
RPC determines who are public officers:
Who are public officers. -- For the purpose of applying the provisions of this and the
preceding titles of the book, any person who, by direct provision of the law, popular
election, popular election or appointment by competent authority, shall take part in
the performance of public functions in the Government of the Philippine Islands, or
shall perform in said Government or in any of its branches public duties as an
employee, agent, or subordinate official, of any rank or classes, shall be deemed to
be a public officer.
Thus,
(to) be a public officer, one must be --
(1) Taking part in the performance of public functions in the government, or
Performing in said Government or any of its branches public duties as an employee,
agent, or subordinate official, of any rank or class; and
(2) That his authority to take part in the performance of public functions or to perform
public duties must be --
a. by direct provision of the law, or
b. by popular election, or
c. by appointment by competent authority.[28]
Granting arguendo that the petitioner, in signing the receipt for the truck
constructively distrained by the BIR, commenced to take part in an activity
constituting public functions, he obviously may not be deemed authorized by popular
election. The next logical query is whether petitioners designation by the BIR as a
custodian of distrained property qualifies as appointment by direct provision of law,
or by competent authority.[29] We answer in the negative.
The Solicitor General contends that the BIR, in effecting constructive distraint
over the truck allegedly owned by Jaime Ancla, and in requiring the petitioner Alfredo
Azarcon who was in possession thereof to sign a pro forma receipt for it, effectively
designated petitioner a depositary and, hence, citing U.S. vs. Rastrollo,[30] a public
officer.[31] This is based on the theory that
(t)he power to designate a private person who has actual possession of a distrained
property as a depository of distrained property is necessarily implied in the BIRs
power to place the property of a delinquent tax payer (sic) in distraint as provided for
under Sections 206, 207 and 208 (formerly Sections 303, 304 and 305) of the
National Internal Revenue Code, (NIRC) x x x.[32]
We disagree. The case of U.S. vs. Rastrollo is not applicable to the case before
us simply because the facts therein are not identical, similar or analogous to those
obtaining here. While the cited case involved a judicial deposit of the proceeds of the
sale of attached property in the hands of the debtor, the case at bench dealt with the
BIRs administrative act of effecting constructive distraint over alleged property of
taxpayer Ancla in relation to his back taxes, property which was received by
petitioner Azarcon. In the cited case, it was clearly within the scope of that courts
jurisdiction and judicial power to constitute the judicial deposit and give the
depositary a character equivalent to that of a public official.[33] However, in the instant
case, while the BIR had authority to require petitioner Azarcon to sign a receipt for
the distrained truck, the NIRC did not grant it power to appoint Azarcon a public
officer.
It is axiomatic in our constitutional framework, which mandates a limited
government, that its branches and administrative agencies exercise only that power
delegated to them as defined either in the Constitution or in legislation or in
both.[34] Thus, although the appointing power is the exclusive prerogative of the
President, x x x[35] the quantum of powers possessed by an administrative agency
forming part of the executive branch will still be limited to that conferred expressly or
by necessary or fair implication in its enabling act. Hence, (a)n administrative officer,
it has been held, has only such powers as are expressly granted to him and those
necessarily implied in the exercise thereof.[36]Corollarily, implied powers are those
which are necessarily included in, and are therefore of lesser degree than the power
granted. It cannot extend to other matters not embraced therein, nor are not
incidental thereto.[37] For to so extend the statutory grant of power would be an
encroachment on powers expressly lodged in Congress by our Constitution.[38] It is
true that Sec. 206 of the NIRC, as pointed out by the prosecution, authorizes the BIR
to effect a constructive distraint by requiring any person to preserve a distrained
property, thus:
xxxxxxxxx
The constructive distraint of personal property shall be effected by requiring the
taxpayer or any person having possession or control of such property to sign a
receipt covering the property distrained and obligate himself to preserve the
same intact and unaltered and not to dispose of the same in any manner
whatever without the express authority of the Commissioner.
xxxxxxxxx
However, we find no provision in the NIRC constituting such person a public
officer by reason of such requirement. The BIRs power authorizing a private
individual to act as a depositary cannot be stretched to include the power to appoint
him as a public officer. The prosecution argues that Article 222 of the Revised Penal
Code x x x defines the individuals covered by the term officers under Article 217[39] x
x x of the same Code.[40] And accordingly, since Azarcon became a depository of the
truck seized by the BIR he also became a public officer who can be prosecuted
under Article 217 x x x.[41]
The Court is not persuaded. Article 222 of the RPC reads:
Officers included in the preceding provisions. -- The provisions of this chapter shall
apply to private individuals who, in any capacity whatever, have charge of any
insular, provincial or municipal funds, revenues, or property and to any administrator
or depository of funds or property attached, seized or deposited by public authority,
even if such property belongs to a private individual.
Legislative intent is determined principally from the language of a statute. Where
the language of a statute is clear and unambiguous, the law is applied according to
its express terms, and interpretation would be resorted to only where a literal
interpretation would be either impossible or absurd or would lead to an
injustice.[42] This is particularly observed in the interpretation of penal statutes which
must be construed with such strictness as to carefully safeguard the rights of the
defendant x x x.[43] The language of the foregoing provision is clear. A private
individual who has in his charge any of the public funds or property enumerated
therein and commits any of the acts defined in any of the provisions of Chapter Four,
Title Seven of the RPC, should likewise be penalized with the same penalty meted to
erring public officers. Nowhere in this provision is it expressed or implied that a
private individual falling under said Article 222 is to be deemed a public officer.
After a thorough review of the case at bench, the Court thus finds petitioner
Alfredo Azarcon and his co-accused Jaime Ancla to be both private individuals
erroneously charged before and convicted by Respondent Sandiganbayan which
had no jurisdiction over them. The Sandiganbayans taking cognizance of this case is
of no moment since (j)urisdiction cannot be conferred by x x x erroneous belief of the
court that it had jurisdiction.[44] As aptly and correctly stated by the petitioner in his
memorandum:
From the foregoing discussion, it is evident that the petitioner did not cease to be a
private individual when he agreed to act as depositary of the garnished dump
truck. Therefore, when the information charged him and Jaime Ancla before the
Sandiganbayan for malversation of public funds or property, the prosecution was in
fact charging two private individuals without any public officer being similarly
charged as a co-conspirator. Consequently, the Sandiganbayan had no jurisdiction
over the controversy and therefore all the proceedings taken below as well as the
Decision rendered by Respondent Sandiganbayan, are null and void for lack of
jurisdiction.[45]

WHEREFORE, the questioned Resolution and Decision of the Sandiganbayan

are hereby SET ASIDE and declared NULL and VOID for lack of jurisdiction. No
costs.
SO ORDERED.
QUILINO L. PIMENTEL III, petitioner,
vs.
THE COMMISSION ON ELECTIONS EN BANC SITTING AS THE NATIONAL
BOARD OF CANVASSERS, THE SPECIAL PROVINCIAL BOARD OF
CANVASSERS FOR MAGUINDANAO CHAIRED BY ATTY. EMILIO S. SANTOS,
and JUAN MIGUEL F. ZUBIRI, respondents.
DECISION
CHICO-NAZARIO, J.:
On 4 July 2007, petitioner Aquilino L. Pimentel III (Pimentel) filed the present Petition
for Certiorari and Mandamus(with Urgent Prayer for Temporary Restraining Order
and/or Status Quo Ante Order).1
The Petition stemmed from the 14 May 2007 national elections for 12 senatorial
posts. At the time of filing of the Petition, around two months after the said elections,
the 11 candidates with the highest number of votes had already been officially
proclaimed and had taken their oaths of office as Senators. With other candidates
conceding, the only remaining contenders for the twelfth and final senatorial post
were Pimentel and private respondent Juan Miguel F. Zubiri (Zubiri). Public
respondent Commission on Elections (COMELEC) en banc, acting as the National
Board of Canvassers (NBC), continued to conduct canvass proceedings so as to
determine the twelfth and last Senator-elect in the 14 May 2007 elections.
Pimentel assailed the proceedings before the NBC and its constituted Special
Provincial Board of Canvassers for Maguindanao (SPBOC-Maguindanao) in which
the Provincial and Municipal Certificates of Canvass (PCOC and MCOCs) from the
province of Maguindanao were respectively canvassed.
The SPBOC-Maguindanao was created because the canvass proceedings held
before the original Provincial Board of Canvassers for Maguindanao (PBOC-
Maguindanao), chaired by Provincial Election Supervisor (PES) Lintang Bedol, were
marred by irregularities, and the PCOC (Bedol PCOC) and other electoral
documents submitted by the said PBOC-Maguindanao were tainted with fraud and
statistical improbabilities. Hence, the Bedol PCOC was excluded from the national
canvass then being conducted by the NBC.
Task Force Maguindanao, headed by COMELEC Chairman Benjamin S. Abalos, Sr.
and Commissioner Nicodemo T. Ferrer, retrieved and collected 21 MCOCs from the
municipalities of Maguindanao, mostly copy 2, or the copy intended to be posted on
the wall. The SPBOC-Maguindanao was then tasked to re-canvass the MCOCs
submitted by Task Force Maguindanao. The re-canvassing of the Maguindanao
MCOCs was conducted by the SPBOC-Maguindanao from 25 to 26 June 2007 at
Shariff Aguak, Maguindanao. Although PES Bedol and the Chairpersons of the
Municipal Boards of Canvassers of Maguindanao (MBOCs-Maguindanao) were
present during the canvass proceedings before the SPBOC-Maguindanao, the
candidates’ legal counsels were not allowed to ask them any questions. Due to the
consistent denial by the SPBOC-Maguindanao of the repeated and persistent
motions made by Pimentel’s counsel to propound questions to PES Bedol and the
Chairpersons of the MBOCs-Maguindanao regarding the due execution and
authenticity of the Maguindanao MCOCs, Pimentel’s counsel manifested her
continuing objection to the canvassing of the said MCOCs. In particular, Pimentel’s
counsel objected to the Maguindanao MCOCs because:
a) the proceedings were illegal;
b) the MCOCs were palpably manufactured;
c) the results reflected in the MCOCs were statistically improbable;
d) there is no basis for saying the MCOCs were authentic because there
were no other available copies for comparison purposes;
e) in most of the MCOCs[,] no watcher signed;
f) there was no evidence or indication that the copy 2 MCOCs had been
posted as intended by law;
g) the serial numbers of the MCOCs are not clearly stamped;
h) copy 2 of the MCOCs cannot be used for canvass;
i) that the MCOCs are therefore, improper, unworthy and unfit for canvass;
j) that the manner the "re-canvassing" which was being done where the
parties are not allowed to ask questions was patently illegal; and
k) that it has not been established that the other copies of the MCOCs have
been lost.2
All of the foregoing observations, manifestations, and objections made by Pimentel’s
counsel, as well as those made by the other candidates’ counsels, were simply noted
by the SPBOC-Maguindanao without specific action thereon.
On 29 June 2007, the SPBOC-Maguindanao submitted to the NBC the second
PCOC for Maguindanao. In the proceedings before the NBC, Pimentel’s counsel
reiterated her request to propound questions to PES Bedol and the Chairpersons of
the MBOCs-Maguindanao and the SPBOC-Maguindanao. The NBC, however,
refused to grant her request. Pimentel’s counsel thereafter moved for the exclusion
of the second Maguindanao PCOC from the canvass, maintaining that the said
PCOC did not reflect the true results of the elections because it was based on the
manufactured Maguindanao MCOCs, the authenticity and due execution of which
had not been duly established. The motion to exclude made by Pimentel’s counsel
was once again denied by the NBC, and she was ordered to sit down or she would
be forcibly evicted from the session hall. The second Maguindanao PCOC was thus
included in the canvass proceedings conducted by the NBC and, resultantly,
Pimentel’s lead over Zubiri was significantly reduced from 133,000 votes to only
4,000 votes.
Pimentel averred that said canvass proceedings were conducted by the NBC and
SPBOC-Maguindanao in violation of his constitutional rights to substantive and
procedural due process and equal protection of the laws, and in obvious partiality to
Zubiri. Pimentel thus filed the Petition at bar on 4 July 2007, anchored on the
following grounds:
I. The petitioner [Pimentel] was denied his right to due process of law when
the respondent SPBOC and the respondent NBC adopted an unconstitutional
procedure which disallowed the petitioner [Pimentel] the opportunity to raise
questions on the COCs subject of the canvass.
II. The petitioner [Pimentel] was denied his right to equal protection of the law
when the respondent SPBOC and the respondent NBC unconstitutionally
adopted a procedure of "no questions" in the canvass of COCs from
Maguindanao, different from the procedure adopted in the canvass of COCs
from other provinces/areas.
III. The respondent NBC acted with manifest grave abuse of discretion when
it refused to exercise its broad, plenary powers in fully or accurately
ascertaining due execution, authenticity and fitness for the canvass of the
MCOCs collected by the Comelec in the exercise of such broad plenary
powers. It violated its own rules when it deprived petitioner [Pimentel] of the
right to ventilate and prove his objections to the Maguindanao COCs.3
Pimentel seeks from this Court the following remedies:
1. Forthwith ISSUE A TEMPORARY RESTRAINING ORDER enjoining the
respondent Commission on Elections en banc sitting as the National Board of
Canvassers for Senators for the May 14, 2007 elections ("NBC") from
proceeding with any proclamation (of the twelfth and last winner of the May
14, 2007 Elections for Senators) based on the on-going senatorial canvass
which includes the new/second Provincial Certificate of Canvass of
Maguindanao, until further orders from this Court, or, in the alternative, in the
event that the proclamation of Respondent Zubiri is made before the
application for a TRO is acted upon, ISSUE A STATUS QUO ANTE
ORDER requiring the parties to observe the status quo at the time of the filing
of the Petition, in order to maintain and preserve the situation of the parties at
the time of the filing of this Petition, so as not to render the issues raised in
this Petition moot and academic;
2. After proper proceedings, RENDER JUDGMENT: (a) ANNULLING AND
SETTING ASIDE for being unconstitutional and illegal the proceedings and
acts of respondent Commission on Elections en banc sitting as the National
Board of Canvassers for Senators for the May 14, 2007 elections ("NBC") of
including, on June 29, 2007, in the national canvass of votes for Senators the
results from the Province of Maguindanao as reflected in its new/second
Provincial Certificate of Canvass as well as the proceedings and acts of the
respondent Special Provincial Board of Canvassers for Maguindanao
("SPBOC") in canvassing or "re-canvassing" the collected MCOCs, on June
25, 26 and 27, 2007, leading to the preparation of the new/second PCOC for
Maguindanao, and (b) COMPELLING or ORDERING respondent NBC and
its deputy, the SPBOC, to perform their ministerial constitutional duty of fully
determining the due execution and authenticity of the MCOCs, including, but
not limited to, allowing petitioner [Pimentel] to substantiate his claim of
manufactured results and propound questions to the officers concerned,
primarily, the Chairpersons of the former PBOC and SPBOC of Maguindanao
and the Chairpersons of the Municipal Boards of Canvassers of
Maguindanao.
Petitioner [Pimentel] also prays for other reliefs, just and equitable, under the
premises.4
Pursuant to the Resolution5 dated 10 July 2007 issued by this Court, Zubiri filed his
Comment6 on the Petition at bar on 12 July 2007; while the NBC and SPBOC-
Maguindano, chaired by Atty. Emilio S. Santos, filed their joint Comment7 on even
date. The respondents Zubiri, NBC, and SPBOC-Maguindanao collectively sought
the denial of Pimentel’s application for Temporary Restraining Order (TRO)
and/or Status Quo Ante Order and the dismissal of the instant Petition.
Pimentel’s prayer for the issuance of a TRO and/or Status Quo Ante Order was set
for oral arguments on 13 July 2007. After hearing the parties’ oral arguments, the
Court voted seven for the grant and seven for the denial of Pimentel’s prayer for the
issuance of a TRO and/or Status Quo Ante Order; thus, said prayer was deemed
denied for failure to garner the required majority vote. The parties were then directed
to submit their respective Memoranda, after which, the case would be deemed
submitted for resolution.8 All the parties complied, with Zubiri submitting his
Memorandum9 on 31 July 2007; Pimentel,10 on 1 August 2007; and the NBC and
SPBOC-Maguindanao,11 on 10 August 2007.
In the meantime, without any TRO and/or Status Quo Ante Order from the Court, the
canvass proceedings before the NBC continued, and by 14 July 2007, Zubiri (with
11,004,099 votes) and Pimentel (with 10,984,807 votes) were respectively ranked as
the twelfth and thirteenth Senatorial candidates with the highest number of votes in
the 14 May 2007 elections. Since the NBC found that the remaining uncanvassed
certificates of canvass would no longer materially affect Zubiri’s lead of 19,292 votes
over Pimentel, it issued Resolution No. NBC 07-67,12 dated 14 July 2007,
proclaiming Zubiri as the twelfth duly elected Senator of the Philippines in the 14 May
2007 elections, to serve for a term of six years beginning 30 June 2007 in
accordance with the provisions of the Constitution.
On 19 July 2007, Zubiri filed with this Court a Manifestation with Motion to
Dismiss.13 Zubiri sought the dismissal of the Petition at bar arguing that, in
consideration of his proclamation pursuant to Resolution No. NBC 07-67 and his
formal assumption of office on 16 July 2007, controversies involving his election and
qualification as a Senator are now within the exclusive jurisdiction of the Senate
Electoral Tribunal (SET).
Zubiri further informed the Court through a Manifestation,14 dated 16 August 2007,
that Pimentel filed an Election Protest (Ex Abudante Ad Cautelam) before the SET
on 30 July 2007, docketed as SET Case No. 001-07, to which Zubiri filed his
Answer Ad Cautelam (With Special Affirmative Defenses, Counter-Protest and
Petition for a Preliminary Hearing on the Affirmative Defenses) on 13 August 2007. In
his election protest, Pimentel prays, among other remedies, for the annulment of
Zubiri’s proclamation as the twelfth winning Senator in the 14 May 2007 elections.
Zubiri called the attention of the Court to the "glaring reality" that with G.R. No.
178413 before this Court and SET Case No. 001-07 before the SET, "there are now
two cases involving the same parties with practically the same issues and similar
remedies sought filed before the two (2) separate courts/tribunals." Zubiri also
pointed out Pimentel’s ostensible failure to inform this Court of his institution of SET
Case No. 001-07 and the subsequent developments therein.
On 23 August 2007, Pimentel filed before this Court his Comment/Opposition (to
Private Respondent’s Manifestation with Motion to Dismiss).15 Pimentel alleged that
Zubiri’s Motion to Dismiss solely relied on Aggabao v. Commission on
Elections.16 However, Pimentel argued that Aggabao cannot be applied to the instant
Petition because of the difference in the factual backgrounds of the two cases.
In Aggabao, therein petitioner Aggabao filed his Petition before this Court after the
proclamation of therein private respondent Miranda as Congressman for the Fourth
District of Isabela; while in the present case, Pimentel already filed his Petition before
this Court prior to the proclamation of Zubiri as Senator. Moreover, Pimentel
asserted that his Petition questioned not Zubiri’s proclamation, but the conduct of the
canvass proceedings before the NBC and SPBOC-Maguindanao. He maintained that
his case was one of first impression and no existing jurisprudence could be used as
precedent for its summary dismissal. Pimentel then reiterated his arguments in his
Memorandum that Sections 37 and 38 of Republic Act No. 9369,17 amending
Sections 30 and 15 of Republic Act No. 7166,18 respectively, significantly affected
and changed the nature of canvass proceedings, the nature of the duty of
canvassing boards, and the extent of allowable pre-proclamation controversies in
Senatorial elections. Based on the foregoing, Pimentel prayed for the denial of
Zubiri’s Motion to Dismiss.
After a close scrutiny of the allegations, arguments, and evidence presented by all
the parties before this Court, this Court rules to dismiss the present Petition.
Pre-proclamation controversy/case
A pre-proclamation controversy has been defined by Batas Pambansa Blg. 881,
otherwise known as the Omnibus Election Code of the Philippines, as follows:
SEC. 241. Definition. – A pre-proclamation controversy is any question
pertaining to or affecting the proceeding of the board of canvassers which
may be raised by any candidate or by any registered political party or
coalition of political parties before the board or directly with the Commission,
or any matter raised under Sections 233, 234, 235 and 236 in relation to the
preparation, transmission, receipt, custody and appearance of the election
returns.
Under Republic Act No. 7166, providing for synchronized national and local
elections, pre-proclamation controversies refer to matters relating to the preparation,
transmission, receipt, custody and appearance of election returns and certificates of
canvass.19
Essentially reiterating Section 243 of the Omnibus Election Code, but adding the
reference to the certificates of canvass, COMELEC Resolution No. 7859, dated 17
April 2007, identified the issues that may be subject of a pre-proclamation
controversy, to wit:
SEC. 37. Issues that may be raised in pre-proclamation controversy. – The
following shall be proper issues that may be raised in a pre-proclamation
controversy:
1) Illegal composition or proceedings of the Board of Canvassers;
2) The canvassed election returns/certificates of canvass are incomplete,
contain material defects, appear to be tampered with or falsified, or contain
discrepancies in the same returns/certificates or in the other authentic copies
thereof as mentioned in Sections 233, 234, 235 and 236 of the Omnibus
Election Code;
3) The election returns/certificates of canvass were prepared under duress,
threats, coercion, or intimidation, or they are obviously manufactured or not
authentic; and
4) When substitute or fraudulent election return/certificates of canvass were
canvassed, the results of which materially affected the standing of the
aggrieved candidate or candidates.
Pre-proclamation cases to resolve pre-proclamation controversies are allowed in
local elections. According to Section 16 of Republic Act No. 7166:
SEC. 16. Pre-proclamation Cases Involving Provincial, City and Municipal
Offices. – Pre-proclamation cases involving provincial, city and municipal
officer shall be allowed and shall be governed by Sections 17, 18, 19, 20, 21
and 22 hereof.
All pre-proclamation cases pending before the Commission shall be deemed
terminated at the beginning of the term of the office involved and the rulings
of the boards of canvassers concerned shall be deemed affirmed, without
prejudice to the filing of a regular election protest by the aggrieved party.
However, proceedings may continue when on the basis of the evidence thus
far presented, the Commission determines that the petition appears
meritorious and accordingly issues an order for the proceeding to continue or
when an appropriate order has been issued by the Supreme Court in a
petition for certiorari.
SEC. 17. Pre-proclamation Controversies: How Commenced. – Questions
affecting the composition or proceedings of the board of canvassers may be
initiated in the board or directly with the Commission. However, matters
raised under Sections 233, 234, 235 and 236 of the Omnibus Election Code
in relation to the preparation, transmission, receipt, custody and appreciation
of the election returns, and the certificates of canvass shall be brought in the
first instance before the board of canvassers only.
However, as to elections for President, Vice-President, Senators, and Members of
the House of Representatives, pre-proclamation cases are prohibited. Section 15 of
Republic Act No. 7166, prior to its amendment, read:
SEC. 15. Pre-proclamation Cases Not Allowed in Elections for President,
Vice-President, Senator, and Member of the House of Representatives. – For
purposes of the elections for President, Vice-President, Senator, and Member
of the House of Representatives, no pre-proclamation cases shall be allowed
on matters relating to the preparation, transmission, receipt, custody and
appreciation of the election returns or the certificates of canvass, as the case
may be. However, this does not preclude the authority of the appropriate
canvassing body motu propio or upon written complaint of an interested
person to correct manifest errors in the certificate of canvass or election
returns before it.
Questions affecting the composition or proceedings of the board of
canvassers may be initiated in the board or directly with the Commission in
accordance with Section 19 hereof.
Any objection on the election returns before the city or municipal board of
canvassers, or on the municipal certificates of canvass before the provincial
board of canvassers or district boards of canvassers in Metro Manila Area,
shall be specifically noted in the minutes of their respective proceedings.
As Section 15 of Republic Act No. 7166 was then worded, it would appear
that any pre-proclamation case relating to the preparation, transmission, receipt,
custody and appreciation of election returns or certificates of canvass, was prohibited
in elections for President, Vice-President, Senators and Members of the House of
Representatives. The prohibition aims to avoid delay in the proclamation of the
winner in the election, which delay might result in a vacuum in these sensitive posts.
Proceedings which may delay the proclamation of the winning candidate beyond the
date20 set for the beginning of his term of office must be avoided, considering that the
effect of said delay is, in the case of national offices for which there is no hold over,
to leave the office without any incumbent.21
The law, nonetheless, recognizes an exception and allows the canvassing
body motu proprio or an interested person to file a written complaint for the
correction of manifest errors in the election returns or certificates of canvass even in
elections for President, Vice-President, Senators and Members of the House of
Representatives, for the simple reason that the correction of manifest error will not
prolong the process of canvassing nor delay the proclamation of the winner in the
election.22 To be manifest, the errors must appear on the face of the certificates of
canvass or election returns sought to be corrected and/or objections thereto must
have been made before the board of canvassers and specifically noted in the
minutes of their respective proceedings.23 The law likewise permits pre-proclamation
cases in elections for President, Vice-President, Senators and Members of the
House of Representatives, when these cases question the composition or
proceedings of the board of canvassers before the board itself or the COMELEC,
since such cases do not directly relate to the certificate of canvass or election
returns.
Section 15 of Republic Act No. 7166, after the amendment introduced by Republic
Act No. 9369, now reads:
SEC. 15. Pre-proclamation Cases in Elections for President, Vice-President,
Senator, and Member of the House of Representatives. – For purposes of the
elections for president, vice-president, senator, and member of the House of
Representatives, no pre-proclamation cases shall be allowed on matters
relating to the preparation, transmission, receipt, custody and appreciation of
election returns or the certificates of canvass, as the case may be, except as
provided for in Section 30 hereof. However, this does not preclude the
authority of the appropriate canvassing body motu propio or upon written
complaint of an interested person to correct manifest errors in the certificate
of canvass or election returns before it.
Questions affecting the composition or proceedings of the board of
canvassers may be initiated in the board or directly with the Commission in
accordance with Section 19 hereof.
Any objection on the election returns before the city or municipal board of
canvassers, or on the municipal certificates of canvass before the provincial
board of canvassers or district board of canvassers in Metro Manila Area,
shall be specifically noticed in the minutes of their respective proceedings.
(Emphasis supplied.)
Republic Act No. 9369 significantly amended Section 15 of Republic Act No. 7166 by
adding an excepting phrase to the general prohibition against pre-proclamation
controversies in elections for President, Vice-President, Senators and Members of
the House of Representatives. According to the amended Section 15, no pre-
proclamation cases on matters relating to the preparation, transmission, receipt,
custody and appreciation of election returns or the certificates of canvass shall be
allowed in elections for President, Vice-President, Senators and Members of the
House of Representatives, except as provided by Section 30 of the same statute.
Section 30 of Republic Act No. 7166, which was likewise amended by Republic Act
No. 9369, provides:
SEC. 30. Congress as the National Board of Canvassers for the Election of
President and Vice President: The Commission en banc as the National
Board of Canvassers for the election of senators:Determination of
Authenticity and Due Execution of Certificates of Canvass. – Congress and
the Commission en banc shall determine the authenticity and due execution
of the certificate of canvass for president and vice-president and
senators, respectively, as accomplished and transmitted to it by the local
board of canvassers, on a showing that: (1) each certificate of canvass was
executed, signed and thumbmarked by the chairman and members of the
board of canvassers and transmitted or caused to be transmitted to Congress
by them; (2) each certificate of canvass contains the names of all of the
candidates for president and vice-president or senator, as the case may be,
and their corresponding votes in words and figures; (3) there exists no
discrepancy in other authentic copies of the certificates of canvass or in any
of its supporting documents such as statement of votes by
city/municipality/by precinct or discrepancy in the votes of any candidate in
words and figures in the certificate; and (4) there exists no discrepancy in
the votes of any candidate in words and figures in the certificate of
canvass against the aggregate number of votes appearing in the
election returns of precincts covered by the certificate of canvass:
Provided, That certified print copies of election returns or certificates of
canvass may be used for the purpose of verifying the existence of the
discrepancy.
When the certificate of canvass, duly certified by the board of canvassers of
each province, city or district, appears to be incomplete the Senate
 President or the Chairman of the Commission, as the case may beshall
require the board of canvassers concerned to transmit by personal delivery
the election returns from polling places that were not included in the
certificate of canvass and supporting statements. Said election returns shall
be submitted by personal delivery within two (2) days from receipt of notice.
When it appears that any certificate of canvass or supporting statement of
votes by city/municipality or by precinct bears erasures or alterations which
may cast doubt as to the veracity of the number of votes stated herein and
may affect the result of the election, upon request of the presidential, vice-
presidential or senatorial candidate concerned or his party, Congress or
the Commission en banc, as the case may be, shall, for the sole purpose
of verifying the actual number of votes cast for President and Vice-
President or senator, count the votes as they appear in the copies of the
election returns submitted to it.
In case of any discrepancy, incompleteness, erasure or alteration as
mentioned above, the procedure on pre-proclamation controversies
shall be adopted and applied as provided in Sections 17, 18, 19 and 20.
Any person who presents in evidence a simulated copy of an election
return, certificate of canvass or statement of votes, or a printed copy of
an election return, certificate of canvass or statement of votes bearing a
simulated certification or a simulated image, shall be guilty of an
election offense and shall be penalized in accordance with Batas
Pambansa Blg. 881. (Emphasis supplied.)
The highlighted portions in the afore-quoted section identify the amendments
introduced by Republic Act No. 9369, specifically: (1) the duty to determine the
authenticity and due execution of certificates of canvass is now imposed, not only on
Congress acting as the NBC for the election for President and Vice-President, but
also on COMELEC en banc acting as the NBC for the election for Senators; (2) the
third criterion for the determination of the authenticity and due execution of the
certificates of canvass requires the absence of discrepancy in comparison not only
with other authentic copies of the said certificates, but also with the supporting
documents, such as the statements of votes; (3) a fourth criterion for the
determination of the authenticity and due execution of the certificates of canvass was
added, mandating the absence of discrepancy between the number of votes of a
candidate in a certificate when compared with the aggregate number of votes
appearing in the election returns of the precincts covered by the same certificate; (4)
pursuant to the exception now provided in Section 15 of Republic Act No. 7166, as
amended by Republic Act No. 9369, permissible pre-proclamation cases shall adopt
and apply the procedure provided in Sections 17 to 20 of the same statute; and (5)
the use of a simulated copy of an election return, certificate of canvass, or statement
of vote, or a printed copy of said election documents bearing a simulated certification
or image shall be penalized as an election offense.
Indeed, this Court recognizes that by virtue of the amendments introduced by
Republic Act No. 9369 to Sections 15 and 30 of Republic Act No. 7166, pre-
proclamation cases involving the authenticity and due execution of certificates of
canvass are now allowed in elections for President, Vice-President, and Senators.
The intention of Congress to treat a case falling under Section 30 of Republic Act No.
7166, as amended by Republic Act No. 9369, as a pre-proclamation case is
apparent in the fourth paragraph of the said provision which adopts and applies to
such a case the same procedure provided under Sections 17,24 18,25 1926 and 2027 of
Republic Act No. 7166 on pre-proclamation controversies.
In sum, in elections for President, Vice-President, Senators and Members of the
House of Representatives, the general rule still is that pre-proclamation cases on
matters relating to the preparation, transmission, receipt, custody and appreciation of
election returns or certificates of canvass are still prohibited. As with other general
rules, there are recognized exceptions to the prohibition, namely: (1) correction of
manifest errors; (2) questions affecting the composition or proceedings of the board
of canvassers; and (3) determination of the authenticity and due execution of
certificates of canvass as provided in Section 30 of Republic Act No. 7166, as
amended by Republic Act No. 9369.
The Petition at bar
Pimentel’s objections to the Maguindanao MCOCs delve into "matters relating to the
preparation, transmission, receipt, custody and appreciation" of the said MCOCs by
the SPBOC-Maguindanao. He suspects the authenticity and due execution of the
Maguindanao MCOCs used by the SPBOC-Maguindanao in its canvass, which were
mostly copy 2 or the copy for the wall,28 because of the supposed mysterious
circumstances surrounding the loss or unavailability of any other copy of the said
MCOCs. He decries the denial by the SPBOC-Maguindanao and the NBC of the
opportunity to question PES Bedol and the Chairpersons of the MBOCs-
Maguindanao on "where did that copy 2 come from, what was the basis, when was it
accomplished, how was it posted x x x";29 and to substantiate his claim that the
Maguindanao MCOCs are palpably manufactured and are not fit for canvass.30 He is
raising issues related to the tampering with, falsification of, or discrepancies in the
Maguindanao MCOCs, which are properly the subject of a pre-proclamation
controversy.31
Pimentel insists that the SPBOC-Maguindanao and the NBC should hear his
observations, accept his evidence, and rule on his objections to the Maguindanao
MCOCs in what would undeniably be a pre-proclamation case. Ultimately, what
Pimentel seeks is that his pre-proclamation case be given due course by the boards
of canvassers.
Respondents contend that Pimentel cannot initiate and pursue a pre-proclamation
case before the SPBOC-Maguindanao or the NBC, since such a case is prohibited in
elections for Senators. Pimentel, however, argues that his pre-proclamation case is
an exception to the prohibition pursuant to Section 30, in relation to Section 15, of
Republic Act No. 7166, as amended by Republic Act No. 9369.
This Court rules for the respondents.
Proceedings before the SPBOC-Maguindanao
The SPBOC-Maguindanao, in the conduct of its canvass proceedings, properly
refused to allow Pimentel to contest the Maguindanao MCOCs at that stage by
questioning PES Bedol and the Chairpersons of the MBOCs-Maguindanao and
presenting evidence to prove the alleged manufactured nature of the said MCOCs,
for such would be tantamount to a pre-proclamation case still prohibited by Section
15 of Republic Act No. 7166, even after its amendment by Republic Act No. 9369.
The SPBOC-Maguindanao, as its name suggests, was constituted to be of the same
stature and to perform the same function as the PBOC-Maguindano: to canvass the
Maguindanao MCOCs and prepare the Maguindanao PCOC to be submitted to the
NBC. Undeniably, the SPBOC-Maguindanao is not Congress nor COMELEC en
banc acting as the NBC, specifically charged by Section 30 of Republic Act No.
7166, as amended by Republic Act No. 9369, with the duty to determine the
authenticity and due execution of the certificates of canvass submitted to it in
accordance with the four given criteria. There is no ambiguity in the said
provision, at least, as to whom it imposes the duty, namely: (1) Congress as the NBC
for the election for President and Vice-President; and (2) COMELEC en banc as the
NBC for the election for Senators. This is a case where the law is clear. It speaks in
a language that is categorical. It is quite explicit; it is too plain to be misread. No
interpretation is needed. All that is called for is to apply the statutory command.32
Even if there is still a need for this Court to construe Section 30 of Republic Act No.
7166, as amended by Republic Act No. 9369, it still cannot extend the scope of said
provision to local boards of canvassers. A pre-proclamation case under Section 30 is
allowed only as an exception to the prohibition under Section 15 of Republic Act No.
7166, as amended by Republic Act No. 9369. According to the rules of statutory
construction, exceptions, as a general rule, are strictly, but reasonably construed;
they extend only so far as their language fairly warrants, and all doubts should be
resolved in favor of the general provisions rather than the exception. Where a
general rule is established by statute with exceptions, the court will not curtail the
former nor add to the latter by implication.33 A maxim of recognized practicality is the
rule that the expressed exception or exemption excludes others. Exceptio firmat
regulim in casibus non exceptis. The express mention of exceptions operates to
exclude other exceptions; conversely, those which are not within the enumerated
exceptions are deemed included in the general rule.34 And, in this case, the
exception applies only to Congress or the COMELEC en banc acting as the
NBC, and not to local boards of canvassers who must still be deemed covered
by the prohibition on pre-proclamation controversies.
It is also significant to note that Section 15 of Republic Act No. 7166, as amended
by Republic Act No. 9369, prohibits pre-proclamation cases in elections
for President, Vice-President, Senators, and Members of the House of
Representatives; while Section 30 of the same statute, as amended, refers only to
elections for President, Vice-President and Senators. The intent of the Legislature
to confine the application of Section 30 of Republic Act No. 7166, as amended by
Republic Act No. 9369, only to Congress or the COMELEC en banc acting as the
NBC thus becomes even more evident, considering that the said provision does not
apply to elections for Members of the House of Representatives. It must be borne in
mind that only the votes for national elective positions such as the President, Vice-
President, and Senators are canvassed by the NBC. The canvassing of votes for
local elective positions, including those for Members of the House of
Representatives, end with the local boards of canvassers. Therefore, it would be
contrary to the legislative intent to extend Section 30 of Republic Act No. 7166, as
amended by Republic Act No. 9369, even to the canvass proceedings before local
boards of canvassers.
This Court can only conclude that the canvass proceedings before local boards of
canvassers in elections for Senators are unaffected by the amendment of Republic
Act No. 7166 by Republic Act No. 9369. They still remain administrative and
summary in nature, so as to guard against the paralyzation of canvassing and
proclamation proceedings that would lead to a vacuum in so important and sensitive
office as that of Senator of the Republic.35
For the same reasons stated in the preceding paragraphs, the four criteria
enumerated by Section 30 of Republic Act No. 7166, as amended by Republic Act
No. 9369, are not mandatory on local boards of canvassers in their determination of
authenticity and due execution of the certificates of canvass submitted to them. It is
already well-settled that the local boards of canvassers, as well as the SPBOC-
Maguindanao in this case, may proceed with the canvassing of the election returns
or certificates of canvass for as long as they appear to be authentic and duly
accomplished on their face.36
Boards of canvassers are ad hoc bodies that exist only for the interim task of
canvassing election returns. They do not have the facilities, the time and even the
competence to hear, examine and decide on alleged election irregularities, unlike
regular courts or the COMELEC itself or the electoral tribunals (Presidential, Senate,
and House), which are regular agencies of government tasked and equipped for the
purpose. While this Court has time and again expressed its abhorrence of the
nefarious "grab the proclamation and prolong the protest" strategy of some
candidates, nonetheless, it recognizes the very limited jurisdiction of MBOCs and
PBOCs. Unless Pimentel is able to show cogently and clearly his entitlement to the
summary exclusion of clearly unacceptable certificates of canvass, this Court must
uphold the constitutional and legal presumption of regularity in the performance of
official functions and authenticity of official documents.37
The burden is upon Pimentel to establish that the Maguindanao MCOCs are
manufactured, and that it is evident on the face thereof. Pimentel’s insistence on
being allowed to propound questions to PES Bedol and the Chairpersons of the
MBOCs-Maguindanao and SPBOC-Maguindanao reveals that, although he has his
suspicions, he has yet no actual evidence that the Maguindanao MCOCs were
indeed manufactured.
Moreover, Pimentel’s main objection to the Maguindanao MCOCs used in the
canvass by the SPBOC-Maguindanao is that they are mostly copy 2 or the copy
intended to be posted on the wall. According to Section 43 of COMELEC Resolution
No. 7859, dated 17 April 2007, the MBOCs must transmit copy 1 of the MCOCs to
the PBOC for use in the provincial canvassing of votes. The SPBOC-Maguindanao
was compelled to use copy 2 of the Maguindanao MCOCs in the absence of copy 1
thereof. The fact that copy 2 of the Maguindanao MCOCs was not the copy meant
for the PBOC-Maguindanao does not necessarily mean that copy 2 of the said
MCOCs was manufactured, falsified or tampered with. All the seven copies of the
MCOCs required to be prepared by the MBOCs should be considered duplicate
originals.38 Just like copy 1 of the MCOCs, copy 2 should be afforded the
presumption of authenticity as an official document prepared by the MBOCs-
Maguindanao in the regular performance of their official functions. Copy 2 is no less
authentic than all the other copies of the MCOCs although it may be more
susceptible to manufacture, falsification, or tampering. If the manufacture,
falsification, or tampering of copy 2 of the MCOCs is not apparent on its face, the
burden to prove the same falls on the candidate making the allegation in a regular
election protest. At least as far as the proceedings before the local boards of
canvassers are concerned, this Court’s ruling in Pangarungan v. Commission on
Elections39 still holds true: it is not required that all the other copies of the election
returns or certificates of canvass be taken into account and compared with one
another before one of them, determined to be authentic, may be used or included in
the canvass.
The SPBOC-Maguindanao determined that copy 2 of the Maguindanao MCOCs is
authentic and duly executed on its face, while Pimentel insists otherwise. This issue
involves the appreciation of copy 2 of the Maguindanao MCOCs by the SPBOC-
Maguindanao, the proper subject of a pre-proclamation controversy, which, as this
Court already declared, is still prohibited in proceedings before local boards of
canvassers for elections for Senators.
The resolution of the issues raised by Pimentel as to the irregularities and suspicious
circumstances surrounding the Maguindanao MCOCs, which appear prima
facie regular on their face, compels or necessitates the piercing of the veil of the said
MCOCs. These issues, however, are more appropriate in a regular election protest,
wherein the parties may litigate all the legal and factual issues raised by them in as
much detail as they may deem necessary or appropriate.40
Proceedings before the COMELEC en banc acting as the NBC for elections for
Senators
Similarly, the COMELEC en banc acting as the NBC for the election for Senators, did
not violate Section 30 of Republic Act No. 7166, as amended by Republic Act No.
9369, when it denied Pimentel’s request to question PES Bedol and the
Chairpersons of the MBOCs-Maguindanao and SPBOC-Maguindanao, and his
subsequent motion to exclude the second Maguindanao PCOC.
As already declared by this Court, the NBC has the duty to determine the authenticity
and due execution of the certificates of canvass submitted to it in accordance with
the four criteria enumerated in Section 30 of Republic Act No. 7166, as amended by
Republic Act No. 9369. It has not been established to the satisfaction of this Court
that the NBC failed to comply with its duty under said provision.
Pimentel asserts that in the absence of all the other copies of the Maguindanao
MCOCs, except copy 2, there is no way to apply the third criterion under Section 30
of Republic Act No. 7166, as amended by Republic Act No. 9369. According to this
criterion for authenticity and due execution of a certificate of canvass, there must
exist no discrepancy in other authentic copies of the certificate or in any of its
supporting documents such as the statement of votes by city/municipality/precinct
and no discrepancy in the votes of any candidate in words and figures in the
certificate. Pimentel posits that without any other copies available for comparison,
then copy 2 of the Maguindanao MCOCs cannot be deemed authentic and duly
executed.
While it is true that having only one copy of the certificate of canvass may raise
problems as to the determination by the NBC of its authenticity and due execution
since there are no other copies to compare it with, such is not the situation in the
Petition at bar.
According to Section 30 of Republic Act No. 7166, as amended by Republic Act No.
9369, Congress and the COMELEC en banc, acting as the NBC, shall determine the
authenticity and due execution of the certificates of canvass for President, Vice-
President and Senators, respectively, as accomplished and transmitted to them by
the local boards of canvassers. For the province of Maguindanao, it is the PBOC
which transmits the PCOC to the NBC. For the 14 May 2007 senatorial elections, the
NBC excluded from the national canvass the Bedol PCOC submitted by the PBOC-
Maguindanao after it found the same to be tainted by irregularities and statistical
improbabilities. Thereafter, the SPBOC-Maguindanao was created, which re-
canvassed the Maguindanao MCOCs and prepared and submitted to the NBC the
second Maguindanao PCOC.
Hence, the four criteria enumerated in Section 30 of Republic Act No. 7166, as
amended by Republic Act No. 9369, must be applied by the NBC to the second
Maguindanao PCOC. The authenticity and due execution of the Maguindanao
MCOCs, which had already been determined by the SPBOC-Maguindanao, are no
longer in issue before the NBC. To allow Pimentel to revive again before the NBC
the issue of authenticity and due execution of the Maguindanao MCOCs after a
determination thereof by the SPBOC-Maguindanao is like granting him an appeal, a
remedy which is without any statutory or regulatory basis.
The SPBOC-Maguindanao prepared all seven copies of the second Maguindanao
PCOC. It properly submitted the first copy to the NBC for national canvassing of the
votes for Senators. All the six other copies are in existence and have been
distributed to the intended recipients. There is no allegation or proof that there is a
discrepancy among the seven authentic copies of the second Maguindanao PCOC.
Neither is it shown that the second Maguindanao PCOC contains any discrepancy
when compared with its supporting documents. It would thus appear to this Court
that the second Maguindanao PCOC passed the third criterion for its authenticity and
due execution as provided in Section 30 of Republic Act No. 7166, as amended by
Republic Act No. 9369. As for the three other criteria, there is no sufficient allegation,
much less proof, that the NBC did not apply them to the second Maguindanao PCOC
or that the second Maguindanao PCOC actually failed to meet any of them.
Given the foregoing, there is indeed no merit in Pimentel’s request before the NBC to
still question PES Bedol and the Chairpersons of the MBOCs-Maguindanao and
SPBOC-Maguindanao regarding the Maguindanao MCOCs. There is also no reason
to exclude the second Maguindanao PCOC from the national canvass of votes for
Senators after its authenticity and due execution had been determined by the NBC in
accordance with the criteria provided by the law.
Due process and equal protection of the law
Pimentel alleges that the proceedings before the NBC and the SPBOC-Maguindanao
disallowing him from asking certain election officials, such as PES Bedol and the
Chairpersons of the MBOCs-Maguindanao and SPBOC-Maguindanao, questions
regarding the Maguindanao PCOC and MCOCs, deprived him of his right to due
process.
In City of Manila v. Hon. Laguio, Jr.,41 this Court already provided a discourse on due
process, to wit:
The constitutional safeguard of due process is embodied in the fiat "(N)o
person shall be deprived of life, liberty or property without due process of law
x x x."
There is no controlling and precise definition of due process. It furnishes
though a standard to which governmental action should conform in order that
deprivation of life, liberty or property, in each appropriate case, be valid. This
standard is aptly described as a responsiveness to the supremacy of reason,
obedience to the dictates of justice, and as such it is a limitation upon the
exercise of the police power.
The purpose of the guaranty is to prevent governmental encroachment
against the life, liberty and property of individuals; to secure the individual
from the arbitrary exercise of the powers of the government, unrestrained by
the established principles of private rights and distributive justice; to protect
property from confiscation by legislative enactments, from seizure, forfeiture,
and destruction without a trial and conviction by the ordinary mode of judicial
procedure; and to secure to all persons equal and impartial justice and the
benefit of the general law.
The guaranty serves as a protection against arbitrary regulation, and private
corporations and partnerships are "persons" within the scope of the guaranty
insofar as their property is concerned.
 This clause has been interpreted as imposing two separate limits on
government, usually called "procedural due process" and "substantive due
process."
Procedural due process, as the phrase implies, refers to the procedures that
the government must follow before it deprives a person of life, liberty, or
property. Classic procedural due process issues are concerned with what
kind of notice and what form of hearing the government must provide when it
takes a particular action.
Substantive due process, as that phrase connotes, asks whether the
government has an adequate reason for taking away a person’s life, liberty,
or property. In other words, substantive due process looks to whether there is
a sufficient justification for the government’s action. Case law in the United
States (U.S.) tells us that whether there is such a justification depends very
much on the level of scrutiny used. For example, if a law is in an area where
only rational basis review is applied, substantive due process is met so long
as the law is rationally related to a legitimate government purpose. But if it is
an area where strict scrutiny is used, such as for protecting fundamental
rights, then the government will meet substantive due process only if it can
prove that the law is necessary to achieve a compelling government purpose.
This Court finds Pimentel’s argument of deprivation of due process problematic since
he has not established what he is being deprived of: life, liberty, or property. He was
a candidate in the senatorial elections. At the time he filed the instant Petition, he
might have been leading in the canvassing of votes, yet the canvass proceedings
were still ongoing, and no winner for the twelfth and last senatorial post had been
proclaimed. May he already claim a right to the elective post prior to the termination
of the canvass proceedings and his proclamation as winner, and may such a right be
considered a property right which he cannot be deprived of without due process?
These were clearly substantial and weighty issues which Pimentel did not address.
Unfortunately, this Court cannot argue and settle them for him.
Pimentel only made a sweeping claim that in the canvass proceedings of the
Maguindanao votes before the NBC and the SPBOC-Maguindanao, he was deprived
of his constitutional right to due process, both procedural and substantive. After
going over his allegations, however, and the definition of substantive due process,
this Court finds that Pimentel cannot invoke denial of substantive due process
because he is not assailing any law, which, arbitrarily or without sufficient
justification, supposedly deprived him of life, liberty, or property.
At most, Pimentel can claim that he was denied procedural due process when he
was not allowed by the NBC and the SPBOC-Maguindanao to propound questions to
certain election officials. But even on this point, Pimentel fails to convince this Court.
Asking election officials questions and confronting them with evidence are not part of
the canvass proceedings. There is no statute or regulation expressly providing for
such a procedure.
Any objection or manifestation concerning a certificate of canvass before the NBC,
as well as any contest involving the inclusion or exclusion of an election return or
certificate of canvass before a local board of canvassers, must be orally submitted to
the Chairperson of the NBC or the local board of canvassers, as the case may be.
Simultaneous with the oral submission, the party concerned must submit his written
objection, manifestation, or contest in the form required. The objection,
manifestation, or contest shall also be recorded in the minutes of the canvass. In the
event that the NBC or local board of canvassers shall determine that there is a
proper case for the objection, manifestation, or contest submitted, it shall
automatically defer the canvass of the assailed election return or certificate of
canvass. Within 24 hours from the submission of the objection, manifestation, or
contest, the party concerned shall submit his evidence which shall be attached to his
written objection, manifestation, or contest. Within the same 24-hour period, any
party may file a written and verified opposition to the objection, manifestation, or
contest. Upon receipt of the evidence, the NBC or the local board of canvassers shall
take up the assailed election return or certificate of canvass, and after considering
the objection, manifestation or contest, together with the opposition thereto and the
evidences submitted, shall summarily and immediately rule thereon.42
The afore-described procedure does not provide any party the opportunity to
question and confront election officials and other witnesses. It may have been
allowed on occasion by the boards of canvassers, but it does not necessarily ripen
into a legally demandable right. Again, canvass proceedings are administrative and
summary in nature. As for local boards of canvassers, in elections for Senators, they
only need to determine the authenticity and due execution of the election returns or
certificates of canvass on the face thereof. As for the COMELEC en banc, acting as
the NBC, the determination of the authenticity and due execution of the certificates of
canvass shall be limited only to those submitted before it by the local boards of
canvassers and in accordance with the criteria provided in Section 30 of Republic
Act No. 7166, as amended by Republic Act No. 9369. The limitations on the powers
and duties of the boards of canvassers are meant to avoid any delay in the
proclamation of the elected official. Issues whose resolution would require the
presentation and examination of witnesses are more properly raised in a regular
election protest.
And as a final observation on the matter of due process, this Court notes that
although Pimentel was not able to propound questions to the election officials
involved in the preparation and canvassing of the Maguindanao MCOCs and PCOC,
he was still able, through his counsel, to state his observations, manifestations, and
objections regarding the said certificates, which were duly noted.43 He may not have
received the response or action that he wanted with respect to his observations,
manifestations, and objections, but Pimentel cannot deny that these were heard and
presented in the canvass proceedings. Pimentel further admitted that he did not
submit his written observations, manifestations, and objections as the rules of
procedure before the NBC and the local boards of canvassers require.44 He cannot
now decry that his observations, manifestations, and objections were not given due
course when he himself failed to comply with the procedure governing the same.
Equally baseless is Pimentel’s averment that his right to equal protection of the laws
was violated when the NBC and the SPBOC-Maguindanao adopted a procedure of
"no questions" in the canvass of the Maguindanao MCOCs, different from the
procedure adopted in the canvass of the certificates of canvass from other
provinces/areas. Article III, Section 1 of the 1987 Constitution guarantees that no
person shall be denied equal protection of the laws. According to a long line of
decisions, equal protection simply requires that all persons or things similarly
situated should be treated alike, both as to rights conferred and responsibilities
imposed. Similar subjects, in other words, should not be treated differently, so as to
give undue favor to some and unjustly discriminate against others.45According to
Pimentel, he was deprived of equal protection of the laws when he was not allowed
to question the election officials involved in the canvass proceedings for
Maguindanao, although he was allowed to do so for other provinces or districts. In
support of his claim, Pimentel compared his own experiences in the canvass
proceedings for different provinces or districts. This Court, however, finds Pimentel’s
assessment misplaced. What would have been essential for Pimentel to allege and
prove was that other senatorial candidates were allowed during the canvass
proceedings to question the election officials involved in the preparation and
canvassing of the Maguindanao MCOCs and PCOC, while he was not; and that the
other senatorial candidates were given undue favor, while he was the only one
unjustly discriminated against. It seems apparent to this Court that the position of the
SPBOC-Maguindanao and the NBC not to allow, during the canvass proceedings,
the questioning of election officials involved in the preparation and canvassing of the
Maguindanao MCOCs and PCOC, was consistent for all senatorial candidates.
Hence, petitioner was similarly situated with all the other senatorial candidates and
they were all treated alike insofar as the canvass proceedings for Maguindanao were
concerned.
Electoral protest before the Senate Electoral Tribunal (SET)
Pimentel’s Petition is for Certiorari and Mandamus, both governed by Rule 65 of the
Rules of Court.
A special civil action for certiorari may be filed under the following circumstances:
SECTION 1. Petition for certiorari. – When any tribunal, board or officer
exercising judicial or quasi-judicial functions has acted without or in excess of
its or his jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction, and there is no appeal, or any plain, speedy, and
adequate remedy in the ordinary course of law, a person aggrieved thereby
may file a verified petition in the proper court, alleging the facts with certainty
and praying that judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting such incidental
reliefs as law and justice may require.
In a special civil action for certiorari, the burden is on the part of petitioner to prove
not merely reversible error, but grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of the public respondent issuing the impugned
order. Grave abuse of discretion means a capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction. Mere abuse of discretion is not
enough, it must be so grave as when the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, and must be so patent
and so gross as to amount to an evasion of a positive duty or to a virtual refusal to
perform the duty enjoined or to act at all in contemplation of law.46
The extraordinary remedy of mandamus, on the other hand, may be availed of under
the conditions provided below:
RULE 65, SECTION 3. Petition for mandamus. – When any tribunal,
corporation, board, officer or person unlawfully neglects the performance of
an act which the law specifically enjoins as a duty resulting from an office,
trust, or station, or unlawfully excludes another from the use and enjoyment
of a right or office to which such other is entitled, and there is no other plain,
speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court, alleging the
facts with certainty and praying that judgment be rendered commanding the
respondent, immediately or at some other time to be specified by the court, to
do the act required to be done to protect the rights of the petitioner, and to
pay the damages sustained by the petitioner by reason of the wrongful acts of
the respondent.
The writ of mandamus shall be issued only if the legal right to be enforced is well
defined, clear and certain. It lies only to compel an officer to perform a ministerial
duty, not a discretionary one. The duty is ministerial only when its discharge requires
neither the exercise of official discretion nor judgment.47
To avail of both special civil actions, there must be no other plain, speedy and
adequate remedy in the ordinary course of law available to the petitioner, and in this,
Pimentel’s Petition falters.
It must be kept in mind that Zubiri was proclaimed the twelfth Senator-elect in the 14
May 2007 elections on 14 July 2007, and that he formally assumed office on 16 July
2007. In accordance with this Court’s ruling in Aggabao, Pimentel’s Petition must be
dismissed, for his recourse lies, not with this Court, but with the SET.
This Court elucidated in Aggabao48 that:
Article VI, Section 17 of the 1987 Constitution provides:
Sec. 17. The Senate and the House of Representatives shall each have an
Electoral Tribunal which shall be the sole judge of all contests relating to the
election, returns, and qualifications of their respective Members. Each
Electoral Tribunal shall be composed of nine Members, three of whom shall
be Justices of the Supreme Court to be designated by the Chief Justice, and
the remaining six shall be Members of the Senate or the House of
Representatives, as the case may be, who shall be chosen on the basis of
proportional representation from the political parties and the parties or
organization registered under the party-list system represented therein. The
senior Justice in the Electoral Tribunal shall be its Chairman.
In Pangilinan v. Commission on Elections we ruled that:
The Senate and the House of Representatives now have their
respective Electoral Tribunals which are the "sole judge of all contests
relating to the election, returns, and qualifications of their respective
Members, thereby divesting the Commission on Elections of its
jurisdiction under the 1973 Constitution over election cases pertaining
to the election of the Members of the Batasang Pambansa
(Congress). It follows that the COMELEC is now bereft of jurisdiction
to hear and decide pre-proclamation controversies against members
of the House of Representatives as well as of the Senate.
The HRET has sole and exclusive jurisdiction over all contests relative to the
election, returns, and qualifications of members of the House of
Representatives. Thus, once a winning candidate has been proclaimed,
taken his oath, and assumed office as a Member of the House of
Representatives, COMELEC’s jurisdiction over election contests relating to
his election, returns, and qualifications ends, and the HRET’s own jurisdiction
begins.
It is undisputed that Miranda has already been proclaimed, taken his oath
and assumed office on June 14, 2004. As such, petitioner’s recourse would
have been to file an electoral protest before the HRET. His remedy is not this
petition for certiorari. Thus:
Finally, the private respondent Feliciano Belmonte, Jr. has already
been proclaimed as the winner in the congressional elections in the
fourth district of Quezon City. He has taken his oath of office and
assumed his duties as representative; hence, the remedy open to the
petitioner was to have filed an electoral protest with the Electoral
Tribunal of the House of Representatives.
The allegation that Miranda’s proclamation is null and void ab initio does not
divest the HRET of its jurisdiction. Thus:
(I)n an electoral contest where the validity of the proclamation of a
winning candidate who has taken his oath of office and assumed his
post as Congressman is raised, that issue is best addressed to the
HRET. The reason for this ruling is self-evident, for it avoids duplicity
of proceedings and a clash of jurisdiction between constitutional
bodies, with due regard to the people’s mandate.
In Lazatin v. Commission on Elections we ruled that, upon proclamation of
the winning candidate and despite its alleged invalidity, the COMELEC is
divested of its jurisdiction to hear the protest. Thus:
The petition is impressed with merit because the petitioner has been
proclaimed winner of the Congressional elections in the first district of
Pampanga, has taken his oath of office as such, and assumed his
duties as Congressman. For this Court to take cognizance of the
electoral protest against him would be to usurp the functions of the
House Electoral Tribunal. The alleged invalidity of the proclamation
(which has been previously ordered by the COMELEC itself) despite
alleged irregularities in connection therewith, and despite the
 pendency of the protests of the rival candidates, is a matter that is
also addressed, considering the premises, to the sound judgment of
the Electoral Tribunal.
In this case, certiorari will not lie considering that there is an available and
adequate remedy in the ordinary course of law for the purpose of annulling or
modifying the proceedings before the COMELEC. After the proclamation,
petitioner’s remedy was an electoral protest before the HRET. The resolution
of the issues presented in this petition is best addressed to the sound
judgment and discretion of the electoral tribunal.
The afore-quoted pronouncements are likewise applicable to the Petition at bar, with
the references therein to the jurisdiction of the House of Representatives Electoral
Tribunal over election protests involving members of the House of Representatives
also being true for the SET as regards election protests involving Senators.
In Chavez v. Commission on Elections,49 this Court similarly ruled that the word
"sole" in Article VI, Section 17 of the 1987 Constitution underscores the exclusivity of
the electoral tribunals' jurisdiction over election contests relating to their respective
members. It is therefore crystal clear that this Court has no jurisdiction to entertain a
petition for certiorari and mandamus on matters which may be threshed out in an
election contest. It is the SET which has exclusive jurisdiction to act on the complaint
of Pimentel involving, as it does, a contest relating to the election of Zubiri, now a
member of the Senate.
Pimentel attempts to bring his case outside the jurisprudential precedent set by
Aggabao, but to no avail.
That Pimentel filed the present Petition prior to Zubiri’s proclamation is insignificant.
Since Pimentel’s prayer for a TRO and/or Status Quo Ante Order had been denied,
Zubiri was proclaimed the twelfth winning Senator in the 2007 Senatorial Elections.
Pimentel further claims that he is not challenging Zubiri’s proclamation, but rather the
conduct of the proceedings before the NBC and the SPBOC-Maguindanao. This is
just a roundabout argument. Pimentel cannot deny that he assails the canvass
proceedings because he believes that the annulment and setting aside thereof would
result in his winning as the twelfth Senator in the 14 May 2007 elections; and if he is
the rightful winner, then logically and necessarily, Zubiri’s proclamation must also be
annulled and set aside.
Finally, while Section 15, in relation to Section 30, of Republic Act No. 7166, as
amended by Republic Act No. 9369, did introduce an additional exception to the
prohibition against pre-proclamation controversies in elections for President, Vice-
President, and Senators, this Court has already established in the preceding
discussion that Pimentel cannot invoke the same in his Petition. The provisions in
question did not materially change the nature of canvass proceedings before the
boards of canvassers, which still remain summary and administrative in nature for
the purpose of canvassing the votes and determining the elected official with as little
delay as possible and in time for the commencement of the new term of office.
This Court deems it necessary to stress that attempts to delay the canvass
proceedings, except for the permissible pre-proclamation controversies, must be
shunned. Grounds which are proper for electoral protests should not be allowed to
delay the proclamation of the winners.50 It may well be true that public policy may
occasionally permit the occurrence of "grab the proclamation and prolong the
protest" situations; that public policy, however, balances the possibility of such
situations against the shortening of the period during which no winners are
proclaimed, a period commonly fraught with tension and danger for the public at
large. For those who disagree with that public policy, the appropriate recourse is not
to ask this Court to abandon case law, which merely interprets faithfully existing
statutory norms, to engage in judicial legislation and in effect to rewrite portions of
the Omnibus Election Code. The appropriate recourse is, of course, to the
Legislative Department of the Government and to ask that Department to strike a
new and different equilibrium in the balancing of the public interests at stake.51
IN VIEW OF THE FOREGOING, the present Petition for Certiorari and Mandamus is
hereby DISMISSED. No costs.
SO ORDERED.
994."[23]
Simultaneous with the filing of its petition, AIFC filed a motion to consolidate the
said petition with GTEB's petition in G.R. No. 114711. On July 20, 1994, after
praying for time for the filing thereof, Glorious Sun filed, in G.R. No. 115889, a
"Motion for Outright Dismissal of the Petition (with Opposition to Motion to
Consolidate), where it sought the dismissal of said petition on the grounds that (1)
AIFC has no personality to file the petition; (2) AIFC failed to exhaust administrative
remedies; and (3) AIFC is guilty of forum-shopping.
In view of Our July 20, 1994 Resolution: (1) requiring the respondents in G.R.
No. 115889 to comment on the petition, and not to file a motion to dismiss, and (2)
granting AIFC's motion to consolidate, Glorious Sun filed a "Manifestation" on August
15, 1994 whereby it withdrew the aforesaid "Motion for Outright Dismissal of the
Petition (with Opposition to Motion to Consolidate)." At the same time it made
manifest its intention to file a motion for reconsideration of the same July 20, 1994
Resolution insofar as it ordered AIF's petition in G.R. No. 115889 consolidated with
the GTEB's petition in G.R. No. 114711.
Accordingly, on September 7, 1994, Glorious Sun filed a "Motion for
Reconsideration[24] with Motion to Suspend Period to File Comment."
However, prior to the filing of Glorious Sun's aforesaid "Motion for
Reconsideration, etc.," or on September 5, 1994, we issued our Resolution in the
above-numbered cases, where we resolved to:
"(a) NOTE WITHOUT ACTION the motions filed by: (1) Glorious Sun Fashion
Garments Manufacturing in G.R. No. 115889 for first and second extensions totalling
fifteen (15) days from July 13, 1994 within which to file motion to dismiss petition and
opposition to the motion to consolidate; and (2) American Inter-Fashion Corporation
[N.B. this should have read 'Glorious Sun Fashion Garments Manufacturing'] in G.R.
No. 114711 for the outright dismissal of the case with opposition to the motion to
consolidate, it appearing that the: (1) motion for outright dismissal with opposition to
the motion to consolidate was withdrawn by private respondent Glorious Sun
Fashion Garments Manufacturing in G.R. No. 115889 through its manifestation dated
August 11, 1994; and (2) motion to consolidate these cases was granted by the
Second Division on July 20, 1994;
(b) GRANT the motions of: (1) private respondent American Inter-Fashion
corporation: (aa) for a fourth (final) extension of five (5) days from July 23, 1994
within which to file comment on the petition for review on certiorari; and (bb) to admit
comment on the petition in G.R. No. 114711;
(c) NOTE the: (1) urgent motion of petitioner in G.R. No. 115889 to resolve
application for temporary restraining order or injunction; and (2) comment on the
petition with motion for the issuance of a show cause order filed by private
respondent American Inter-Fashion Corporation in G.R. No. 114711;
(d) require the petitioners [N.B. this should have read petitioner] to file a REPLY
within ten (10) days from notice hereof to the comment on the petition filed by
American Inter-Fashion Corporation; and
(e) NOTE the manifestation dated August 12, 1994 by Atty. Benjamin D. de Asis,
manifesting his withdrawal as counsel for petitioner Garments and Textile Export
Board in G.R. No. 114711 but require aforesaid counsel to SUBMIT the conformity of
his client within five (5) days from notice hereof." [25]
Thereafter, Glorious Sun filed on September 22, 1994 with the First Division of
this Court, its "Manifestation and Motion to Suspend Further Proceedings Until After
Resolution by Second Division of Motion for Reconsideration of Order of July 20,
1994 on Consolidation."[26] On the other hand, the GTEB, pursuant to Our above
directive, filed its Reply to AIFC's Comment in G.R. No. 115889.
AIFC, as petitioner in G.R. No. 114711, filed with the Second Division of this
Court an "Urgent Motion to Resolve Application for Injunction,"[27] which it followed up
with an "Urgent Motion to Restore Status Quo Ante."[28] The latter motion was filed
with the Third Division of this Court, to whom the above-numbered petitions had, in
the meantime, been assigned. In response to these urgent motions, Glorious Sun
filed, also with the Third Division of this Court, its "Comment (Re: Petitioner's Urgent
Motions: [1] to Resolve Application for Injunction; and [2] to Restore Status Quo
Ante)" where it argued that:
"I. The First Division of this Honorable Court, as far back as 05 September 1994, had
already acted upon petitioner's urgent motion for the issuance of a temporary
restraining order or injunction, by merely noting the same.
II. In any event, the instant motions should nevertheless be denied, there being
absolutely no showing that petitioner is clearly entitled to injunctive relief."[29]
Subsequent to the filing of the above pleadings, AIFC filed yet another "Urgent
Motion to Resolve," to which Glorious Sun replied through a pleading denominated
as "Manifestation (Re: Petitioner's March 30, 1995 Urgent Motion to Resolve) with
Motion for Summary Dismissal and Motion to Cite Petitioner for Direct Contempt (For
Violation of SC Revised Circular 28-91)."[30]
On April 3, 1995, we issued a resolution, the pertinent portions whereof reads:
"Considering the allegations contained, the issues raised and the arguments
adduced in the petitions for review on certiorari, as well as the respective comments
of the private respondents thereon and the replies of petitioner to said comments, the
Court Resolved to give DUE COURSE to the petition, and to require the parties
to FILE their respective MEMORANDA in both cases, within twenty (20) days from
notice.
The Court further Resolved:
xxx xxx xxx
(b) to NOTE:
(1) the urgent motion to resolve application for injunction, dated March 2,
1995, filed by counsel for petitioner American Inter-Fashion Corporation;
and
(2) the urgent motion to restore status quo ante, dated March 14, 1995, filed
by counsel for petitioner."
Thereafter, both American Inter-Fashion Corporation and the GTEB filed their
respective Memoranda. On the other hand, on August 4, 1995, Glorious Sun filed its
"Comment on Petition with Memorandum,"[31] which pleading included the
succeeding explanatory remarks:
"1. At the outset, it should be mentioned that contrary to the 05 April 1995 Resolution
of the Honorable Court, Glorious Sun has not yet filed its comment to American Inter-
Fashion Corporation's (AIFC's) petition in the above-numbered case.
2. On 07 September 1994, Glorious Sun filed a motion for reconsideration of the
order of this Honorable Court which consolidated the instant petition with the petition
of the Garments and Textile Export Board (GTEB) in G.R. No. 114711. Glorious Sun
included in said motion for reconsideration a 'Motion to Suspend Period to File
Comment,' pending resolution by the Honorable Court of the consolidation incident.
3. Subsequent thereto, or on 22 September 1994, Glorious Sun filed a 'Manifestation
and Motion to Suspend Further Proceedings Until After Resolution by Second
Division of Motion for Reconsideration of Order of July 20, 1994 on Consolidation.
4. In view of the filing of the aforementioned motions, Glorious Sun held off the filing
of its comment to the petition until said motions were resolved by the Honorable
Court. To this day, however, no resolution has as yet been rendered by the
Honorable Court relative to the above-stated motions.
5. We surmise that the comment being referred to by the Honorable Court as having
been filed by Glorious Sun is that which the latter filed in connection with AIFC's
Urgent Motions (1) to Resolve Application for Injunction; and (2) to Restore Status
Quo Ante.
6. Be that as it may, Glorious Sun is filing the instant pleading which it prays be
treated as its comment and memorandum."[32]
A "Motion for Leave to Intervene and Submit Manifestation"[33] in the above-
entitled cases was subsequently filed by Messrs. Yeung Chun Kam and Yeung Chun
Ho, who purport to be the Hongkong investors referred to by American Inter-Fashion
Corporation in its 23 June 1995 Memorandum.
On July 19, 1996, Glorious Sun filed a "Manifestation," whereby it informed this
Court of the May 20, 1996 Order of the Securities and Exchange Commission (SEC),
the entirety whereof reads thus:
"The articles of incorporation of American Inter-Fashion Corporation (the new AIFC,
for short) with SEC Reg. No. AS093-008101-A reveal that said corporation was
formed for the purpose of re-registering American Inter-Fashion Corporation (the old
AIFC) with SEC Reg. No. 12236 registered with the SEC on July 16, 1985 and that
the same appear to have been approved by the Commission en banc in its
Commission meeting held on October 14, 1993. What was actually approved in said
meeting was the 'registration of a new corporation' and that it was not the intention of
this Commission to approve the re-registration of the old AIFC.
American Inter-Fashion Corporation (SEC Reg. 12236), whose corporate registration
had been ordered revoked, cannot avoid liquidation by reason of the revocation of its
franchise and it cannot also be allowed to continue its business by virtue of its so-
called 're-registration.'
Viewed in this light, this Commission en banc hereby RECALLS the certificate of
registration issued to American Inter-Fashion Corporation on October 14, 1993 under
SEC Reg. No. AS093-008101-A without prejudice to the registration of a new
corporation."[34]
In the same "Manifestation," Glorious Sun prayed, among others, for the
dismissal of the above-entitled petitions, citing as ground therefor the above-quoted
SEC. Order recalling American Inter-Fashion Corporation's certificate of registration.
Thereafter, American Inter-Fashion Corporation filed its "Counter Manifestation (To
Glorious Sun's Manifestation dated July 15, 1996),"[35] to which Glorious Sun
responded by way of its "Reply (Re: Counter-Manifestation)."[36]
In G.R. No. 114711, the GTEB made the following assignment of errors:
"I. The respondent Court of Appeals erred gravely in failing to rule that it had no
jurisdiction over the petition in CA-G.R. SP No. 31596.
 II. The respondent Court of Appeals erred gravely in failing to rule that the
petition in CA-G.R. SP No. 31596 did not state a cause of action against
GTEB.
III. The respondent Court of Appeals erred gravely in failing to hold that the 11
January 1993 Resolution issued by GTEB was valid and in the proper
exercise of its administrative discretion and jurisdiction.
IV. The respondent Court of Appeals erred gravely in failing to hold that the
petition in CA-G.R. SP No. 31596 was rendered moot and academic in its
entirety by the mere passage of the year 1993.
V. The respondent Court of Appeals erred gravely in failing to deny and/or to
dismiss the petition in CA-G.R. SP No. 31596 for lack of merit."[37]
On the other hand, AIFC makes the following assignment of errors in its
petition:[38]
"The GTEB has no jurisdiction to take cognizance of Glorious Sun's action
against AIFC for 'recovery' of property."[39]
"In any case, the GTEB's issuance of a resolution deciding the action on its
'merits' without hearing AIFC's evidence is a violation of AIFC's right to due
process."[40]
"The GTEB's cancellation of AIFC's EQs is a confiscation of property without
due process of law."[41]
THE ISSUES
1. Considering that AIFC's Certificate of Registration had been effectively
revoked by the Securities and Exchange Commission on May 22, 1990, may
AIFC still engage in business and claim entitlement to the export allocations
subject of these petitions?
2. Does the Garments and Textile Export Board (GTEB) have the power
and authority to grant or cancel export quotas or authorizations?
3. Did the GTEB, in issuing the assailed Resolutions, afford AIFC the right
to due process?
I
This is not the first time that we have been asked to resolve an issue relative to
AIFC's corporate personality. In G.R. No. 110711, entitled "American Inter-Fashion
Corporation v. Securities and Exchange Commission, et al.," this Court en banc
upheld the resolutions of the Prosecution and Enforcement Department (PED) of the
Securities and Exchange Commission (SEC) in PED Case No. 87-0321 revoking
AIFC's certificate of registration, on the basis of Glorious Sun's assertions that AIFC
committed fraud and misrepresentation in securing said certificate of registration,
after we had likewise effectively upheld the very same resolutions in an earlier
petition filed by AIFC, entitled "American Inter-Fashion Corporation v. Court of
Appeals, et al."[42]
In said G.R No. 110711, we recounted the factual circumstances pertinent to the
revocation of AIFC's certificate of registration in the succeeding manner:
"The complaint was assigned for investigation and hearing to SEC's Prosecution and
Enforcement Department (PED). On 14 May 1990, PED issued a resolution
recommending the revocation of petitioner's SEC certificate of registration; however,
on 24 May 1990, PED issued an amended resolution this time revoking the said
certificate on the basis of its ruling that 'there was in effect no payment of at
least P1,657,000.00 of the P2,500,000.00 supposed payment on subscription,
contrary to the treasurer's affidavit that the subscription of P2,500,000.00 was fully
paid and the payment had been fully received.' In PED's resolution of 15 October
1990, petitioner's motion for reconsideration was denied.
Acting on petitioner's appeal (docketed as Sec-AC No. 319) from the said resolutions
of PED, the SEC affirmed the same, in its decisions of 22 May 1992. A copy of which
was received by petitioner on 25 May 1992. Petitioner's motion for reconsideration
was denied by the SEC in the latter's order dated September 16, 1992, copy of
which order was received by petitioner's counsel on September 18, 1992 (three [3]
SEC commissioners concurred; two [2] dissented). On September 25, 1992,
petitioner then filed a petition for review with the Court of Appeals docketed as CA-
G.R. SP No. 29017. But on September 30, 1992, the Court of Appeals dismissed the
petition on the ground that it was filed late (last day to file petition was on September
19, 1992, but petition was filed only on September 25, 1992, thus, petition was filed
six [6] days late).
On November 23, 1992, petitioner filed a petition for review (under Rule 45 of the
Rules of Court) with this Court, docketed as G.R. No. 107742 assailing the resolution
of the Court of Appeals in said CA-G.R. SP No. 29017, and questioning the SEC
decision of 22 May 1992 in SEC-AC No. 319. On January 13, 1993, this Court (Third
Division) denied AIFC's petition, thus affirming the Court of Appeals' assailed
resolution of September 30, 1992, on the ground that the appellate court committed
no reversible error in dismissing the petition in CA-G.R. SP No. 29017. Petitioner's
motion for reconsideration was referred to the Court en banc. On July 1, 1993 the
Court en banc denied with finality petitioner's motion for reconsideration and held
that the reason given by petitioner's counsel for late filing of its petition (i.e. petition
was filed late with the Court of Appeals because petitioner's counsel Atty. Ceniza of
Sycip Law got seriously ill) was not a valid excuse and not a compelling reason to
reconsider the Court's resolution of January 13, 1993.
Petitioner's counsel has filed the present petition (filed on 13 July 1993) under Rule
65 of the Rules of Court, assailing the same PED resolutions and SEC decision
assailed in G.R. No. 107742 (filed under Rule 45 of the Rules), this time on the
ground that they were issued or rendered without jurisdiction.
As earlier noted, substantially and even principally the same issues and subject
matter are raised and involved in the present petition (filed under Rule 65 of the
Rules of Court) and those in the petition in G.R No. 107742 (filed under Rule 45 of
the Rules).
In said G.R. No. 107742, petitioner had availed of the remedy of appeal by certiorari,
i.e., appealing from the decision of the Court of Appeals in CA-G.R. SP No. 29017.
Settled is the rule that a special civil action of certiorari (under Rule 65) is not a
substitute for a lost appeal (Bank of America, et al., vs. CA, G.R No. 78917, June 8,
1990, 186 SCRA 417).
By the resolution of this Court en banc, dated July 1, 1993, rendered in G.R No.
107742, the petitioner's privilege (or opportunity) to question the SEC decision dated
May 22, 1993 rendered in SEC-AC No. 319 was lost when the Court sitting en
banc denied with finality the motion of petitioner to reconsider this Court's resolution
of 13 January 1993, denying its petition for review (G.R. No. 107742).
Thus, since petitioner had already lost its privilege to question the SEC resolution
dated May 22, 1992, petitioner can no longer assail the same SEC resolution, not
even by certiorari under Rule 65 of the Rules of Court. A contrary rule would swamp
this Court with petitions for certiorari under Rule 65 after an appeal is lost under Rule
45 of the Rules. This would subvert the long established public policy that litigations
must come to an end at one time or other.
But even granting ex gratia arguendo that petitioner can still avail itself of the remedy
of a special civil action of certiorari (under Rule 65) said remedy should be availed of
within a reasonable period from the date of receipt of the assailed order/decision. In
Reas vs. Bonife, we held that 'a petition for certiorari under Rule 65 is required to be
filed within a reasonable period, no time frame being provided in the Rules within
which such petition has to be filed.' In the subsequent case of Philsec Workers'
Union vs. Hon. Romeo A. Young (Resolution dated 22 January 1992, G.R No.
101734), it was held that ninety (90) days from notice of the questioned
order/decision is a reasonable period within which to file a petition for certiorari under
Rule 65.
In the present petition, the assailed decision of the respondent SEC dated May 22,
1992, was received by petitioner's counsel on May 25, 1992, and the SEC's
resolution denying petitioner's motion for reconsideration was received by petitioner
on September 18, 1992. The present petition was filed on July 13, 1993. From
September 18, 1992 to July 13, 1993, almost ten (10) months had lapsed.
Undoubtedly, said period of ten (10) months is no longer a 'reasonable period' within
which a petition for certiorari under Rule 65 may be filed.
As earlier said the denial of the petition in G.R No. 107742 is final. We must all be
reminded of the settled rule that once a judgment has become final, the issues raised
therein should be laid to rest. Hence, the issues raised anew regarding the again
assailed decision of SEC, dated May 22, 1992, in SEC-AC No. 319, are no longer
open to debate and/or adjudication.
ACCORDINGLY, the present petition is DISMISSED."[43]
It appears that subsequent to the revocation of AIFC's certificate of registration,
or on October 14, 1993, AIFC registered anew with the SEC, this time under SEC
Reg. No. AS093-008101-A under the name and style: AIFC International Fashion
Corporation. Evidently then, the AIFC which filed the petition in G.R No. 115889 is
the AIFC which was "re-registered" on the above date, the original AIFC's certificate
of registration having been revoked with finality by virtue of our resolutions referred
to in our above-quoted 11 August 1993 Resolution.[44] In the same manner, the AIFC
which the GTEB refers to in its petition in G.R No. 114711 could not have been any
one other than this same "re-registered" AIFC, said petition having been filed
subsequent to the revocation of the original AIFC's certificate of registration.
It is obvious that the "re-registered" AIFC does not possess the legal personality
necessary for it to prosecute these petitions. In view of the May 20, 1990 Order of
the SEC, "the certificate of registration issued to American Inter-Fashion Corporation
on October 14, 1993 under SEC Reg. No. AS093-008101-A"[45] was revoked. For all
legal intents and purposes, AIFC no longer exists, and it may no longer claim to be
entitled to the export allocations subject of these petitions. After all, it stands to
reason that where there is no claimant, there can be no claim. The AIFC
International is a personality separate and distinct from AIFC. For this reason, we
cannot grant to AIFC International Fashion Corporation the personality to pursue the
petition in G.R. No. 114711. It has not applied for and is thus equally devoid of any
personality to lay claim on the export allocations subject of said petition.
In fine, if only for AIFC's lack of legal personality to maintain its claim relative to
the export allocations subject of these petitions, its petition in G.R. No. 115889 is
rendered dismissible. On the other hand, and in view likewise of this lack of legal
personality, we would be justified in annulling the January 26, 1994 and March 22,
1994 Resolutions of the Court of Appeals in CA-G.R. SP No. 31596, and in
dismissing the said petition, as prayed for by the GTEB in G.R. No. 114711.
II
In support of its assertion that it is "the sole entity possessed with the power,
jurisdiction and discretion to grant and disapprove export allocations such as export
quotas," the GTEB makes reference to Executive Order No. 537, as amended,
including its implementing rules and regulations, and the fact that among the
functions of the GTEB therein enumerated are "the approval of export allocations, as
well as the monitoring, administration and regulation thereof."[46] Citing the doctrine of
primary jurisdiction, the GTEB further argues that being "a highly specialized
administrative agency endowed with regulatory and quasi-judicial powers x x x it
enjoys the fundamental presumption that it has the technical expertise and mastery
over such specialized matters, so much so that its findings as to the latter would
ordinarily deserve the respect of the courts."[47]
AIFC, on the other hand, argues that inasmuch as none of the powers specified
in Executive Order 537, specifically Section 3 thereof, gives the GTEB any judicial
powers, nor any specific jurisdiction to hear and decide actions, as the term is
understood under Section 1, Rule 2 of the Rules of Court, and inasmuch as GTEB
Case No. 92-50 is such an action between private litigants, the GTEB has no
jurisdiction over said case.[48] To reinforce its argument, AIFC cites our ruling
in Globe Wireless Ltd. v. PSC.[49] In said case, we held:
"Too basic in administrative law to need citation of jurisprudence is the rule that the
jurisdiction and powers of administrative agencies x x x are limited to those expressly
granted or necessarily implied from those granted in the legislation creating such
body; and any order without or beyond such jurisdiction is void and ineffective x x
x"[50]
For its part, Glorious Sun joins the GTEB in the latter's assertion that it is the
GTEB which has the jurisdiction to act and rule on Glorious Sun's petition for the
cancellation and restoration to it of the quotas awarded to AIFC. Thus it argues:
"48. Contrary to AIFC's assertions, it is beyond dispute that the GTEB has the
jurisdiction to act and rule on Glorious Sun's Petition for the cancellation and
restoration to it of the quotas illegally awarded to AIFC. A simple reference to the
pertinent provisions of the various Executive Orders (E.O.s) relative to the functions
of the GTEB easily reveals as much.
49. Under E.O. No. 952, which amended E.O. Nos. 537 and 823 it is provided:
'SECTION 1. Section 3 subparagraphs (a), (h), and (i) of Executive Order No. 537
[on the powers and functions of the Board] is hereby amended to read as follows:
xxx xxx xxx
(h) In case of violations of its rules and regulations, cancel or suspend quota
allocations, export authorizations and licenses for the operations of bonded garment
manufacturing warehouses or disqualify the firm and/or its principal stockholders and
officers from engaging in garment exports and from doing business with the Board; x
x x'
50. Thus, if only on the basis of the above-quoted provision, and even in the face of
the criteria set forth in Globe, it is at once evident that the power to adjudicate on the
question of the AIFC's entitlement to the subject EQs is 'necessarily implied' from the
Board's power to 'cancel or suspend quota allocations, export authorizations and
licenses.'
xxx xxx xxx
51. However, in addition to the above, E.O. No. 913, entitled 'Strengthening the
Rule-Making and Adjudicatory Powers of the Minister of Trade and Industry in Order
to Further Protect Consumers,' was likewise issued, which E.O., we respectfully
submit, made the GTEB's power to adjudicate on the question of the AIFC's
entitlement to the subject EQs more than just being merely 'necessarily implied.'
52. Thus, Section 5 of Article III of the above-numbered E.O. reads:
SEC. 5. Formal investigation. (a) Whenever the Minister has verified that violation/s
of 'Trade and Industry Laws' has/have been committed, he may motu proprio charge
said violator/s, and thereafter proceed with a formal investigation, independent of the
corresponding criminal or civil action for the said violation/s. The imposition of
administrative penalties in the formal investigation is without prejudice to the
imposition of penalties in the criminal action and/or judgment in the civil action, and
vice versa. Provided, however, that in deciding the case the Minister or the judge, as
the case may be, shall consider the decision of the other and impose further
penalties, or consider the penalties imposed by the other as already sufficient, as his
sense of justice dictates.
(b) The Minister may proceed to hear and determine the violation in the absence of
any party who has been served with notice to appear in the hearing.
(c) The Minister shall use every and all reasonable means to ascertain the facts of
the case speedily and objectively without regard to technicalities of law or procedure
and strict rules of evidence prevailing in courts of law and equity. The Minister shall
decide the case within thirty working days from the time the formal investigation was
terminated.
(d) The minister shall have the same power to punish direct and indirect contempts
granted to superior courts under Rule 71 of the Rules of Court and the power to
issue subpoena duces tecum.
(e) When the 'trade and industry law' violated provides for its own administrative
procedure and penalties, including a procedure where a Board Council, Authority, or
Committee takes part as a body, the Minister shall have the option of selecting that
procedure and penalties or the procedure and penalties provided in this Executive
Order. If he opts for the latter, the approval of such Board, Council, Authority, or
Committee of the Minister's decision shall not be necessary.'
53. The above-quoted provisions are very significant in light of the definition of the
'Ministry' as the Ministry of Trade and Industry 'and/or any of its bureaus, offices, or
attached agencies, or any other office, unit or committee by whatever name which is
placed under or attached to the Ministry of Trade and Industry (Section 1, Article I,
E.O. 913; Underscoring supplied).' The GTEB is one such bureau, office or agency.
54. In this connection, AIFC's statement to the effect that GTEB Case No. 92-50 is
an action by one party against another for the enforcement or protection of a right, is
not entirely accurate. It will be remembered that said GTEB case was initiated
principally for the purpose of securing the cancellation of EQs being illegally held
onto by AIFC, a proceeding which is undoubtedly within the ambit of the Board's
powers; that Glorious Sun stood to benefit from such cancellation was merely
incidental to said proceeding."[51]
After examining the arguments raised by all parties concerned, we find the
arguments of the GTEB and Glorious Sun to be impressed with merit, and
accordingly hold that the power and jurisdiction to adjudicate on the question of
AIFC's entitlement to the export allocations subject of the above-entitled petitions (be
they export quotas or export authorizations), which includes the discretion to grant
and disapprove said export allocations, belongs solely to the GTEB, and not to the
regular courts.
Semantics notwithstanding, it cannot be denied that GTEB Case No. 92-50 was
instituted by Glorious Sun for the purpose of securing the cancellation of EQs then
alleged by it as being illegally held by AIFC. This being the case, it likewise cannot
be denied that, as Glorious Sun correctly observes, such a proceeding is clearly
within the ambit of the GTEB's powers, more specifically, the power granted to it by
Section 3 subparagraph (h) of Executive Order No. 537 (as amended by E.O. No.
952) to "cancel or suspend quota allocations, export authorizations and licenses for
the operations of bonded garment manufacturing warehouses or disqualify the firm
and/or its principal stockholders and officers from engaging in garment exports and
from doing business with the Board," in case of violations of its rules and regulations.
In light of the above, AIFC's reliance on our ruling in Globe Wireless Ltd. v.
PSC,[52] is clearly misplaced. On the basis of the provisions of law cited by both the
GTEB and Glorious Sun, that the power to adjudicate on the question of an entity's
entitlement to export allocations was expressly granted to the GTEB, or at the very
least, was necessarily implied from the power to cancel or suspend quota
allocations, is beyond cavil.
In addition, we must take judicial notice of the fact that AIFC, in cases involving
the same controversy as that in the above-entitled petitions, has recognized the
exclusive jurisdiction of the GTEB to award or cancel export allocations to deserving
entities.
AIFC categorically declared in its "Motion to Dismiss," Civil Case No. 93-
138[53] that "Executive Order No. 537, as amended by Executive Order Nos. 823 and
952, vests upon defendant GTEB exclusive jurisdiction to grant export quota
allocations," and that "(u)nder the doctrine of primary jurisdiction, only defendant
GTEB has the authority to award/cancel export quotas." In fact, it is noteworthy that
in said motion to dismiss, AIFC relied upon the very principles cited by both the
GTEB and Glorious Sun in the above-entitled petitions in support of their argument
that it is the GTEB which has jurisdiction over the export allocations subject of said
petitions, to wit:
"Courts of justice should not generally interfere with purely administrative and
discretionary functions; that courts have no supervisory power over the proceedings
and actions of the administrative departments of the government involving the
exercise of judgment and findings of fact, because by reason of their special
knowledge and expertise over matters falling under their jurisdiction, the latter are in
a better position to pass judgment on such matters and their findings of facts in that
regard are generally accorded respect, if not finality, by the courts. (Ateneo de
Manila v. CA, 145 SCRA 105)"[54]
AIFC reiterated this stance in its "Motion to Dismiss" in Civil Case No.
64010[55] in this wise:
"As stated above, this Court cannot grant the reliefs sought in the Complaint without
first deciding that AIFC is not entitled to EQs, and that, in effect, the EQs now in
AIFC's name should be cancelled. This power, however, has been granted not to the
courts but to the GTEB, which is vested with jurisdiction
'[i]n case of violations of its rules and regulations, [to] cancel or suspend
quota allocations, export authorizations and licenses for the operations of
bonded garment manufacturing warehouses and/or to disqualify the firm
and/or its principal stockholders and officers from engaging in garment
exports and from doing business with the Board (Section 3[h], Exec. Order
No. 537 [1979], as amended by Exec. Order No. 823 [1982] and Exec.
Order No. 952 [1984]).'
And even assuming for argument that it is indeed vested with original jurisdiction
to cancel EQs, under the doctrine of primary jurisdiction, this Court cannot at this
time take cognizance of the Complaint (Supra, at pp. 14-15)."
Having already invoked the jurisdiction of the GTEB in earlier actions involving
the same controversy as that before us, AIFC cannot now be heard to question that
same jurisdiction simply because it was unable to obtain the reliefs prayed for by it
from the GTEB. We have warned against such a practice on more than one occasion
in the past. Most recently, in St. Luke's Medical Center, Inc. v. Torres,[56] we
reiterated such warning:
"It is a settled rule that a party cannot invoke the jurisdiction of a court to secure
affirmative relief against his opponent and after failing to obtain such relief, repudiate
or question that same jurisdiction. A party cannot invoke jurisdiction at one time and
reject it at another in the same controversy to suit its interests and convenience. The
Court frowns upon and does not tolerate the undesirable practice of some litigants
who submit voluntarily a cause and then accepting the judgment when favorable to
them and attacking it for lack of jurisdiction when adverse (Tajonera v. Lamaroza,
110 SCRA 447, citing Tijam v. Sibonghanoy, 23 SCRA 35)."[57]
III
As to the allegations of AIFC that it was deprived of due process, we find no
merit to this contention. With respect to the June 21, 1994 Resolution of the GTEB
which AIFC assails in its petition in G.R No. 115889, it is AIFC's contention that the
GTEB issued said resolution[58] without giving AIFC the opportunity to be heard and
without receiving its evidence in any form.
We disagree.
Insofar as the supposed failure of the GTEB to issue a show cause order to
AIFC is concerned, we hold that the GTEB committed no grave abuse of discretion in
instituting an action against AIFC on the basis of the allegations in Glorious Sun's
petition in GTEB Case No. 92-50. It is apparent from the rule cited by AIFC[59] that
the same was aimed primarily at ensuring that if any action is to be filed against a
respondent, the same must have sufficient basis in fact. Consequently, for so long as
this goal is achieved, albeit through some other means, no undue prejudice can be
caused by the non-issuance of a show-cause order. In fact, as correctly pointed out
by Glorious Sun, the GTEB, as a bureau, office or agency attached to the Ministry of
Trade and Industry, may even motu proprio charge violators of "Trade and Industry
Laws," and thereafter proceed with a formal investigation.[60]
Anent AIFC's claim that it was not afforded the opportunity to present evidence
in GTEB Case No. 92-50, we find such claim unworthy of belief. The GTEB, as an
administrative agency, has in its favor the presumption that it has regularly
performed its official duties, including those which are quasi-judicial in nature. In the
absence of clear facts to rebut the same, said presumption of regularity must be
upheld. This is also but in keeping with the doctrine of primary jurisdiction.
We are inclined to give credence instead to Glorious Sun's assertions relative to
AIFC's presentation of evidence in GTEB Case No. 92-50, there being ample basis
in the records therefor. Thus, after examining the "Motion to Dismiss" filed by AIFC in
GTEB Case No. 92-50,[61] we find nothing therein to indicate that AIFC reserved its
right to present evidence in said GTEB case, contrary to AIFC's claims. On the other
hand, as correctly pointed out by Glorious Sun, if any reservation was made by AIFC
in its "Sur Rejoinder (Re: Motion to Dismiss)," attached to AIFC's petition as Annex
"E," this was limited to the reservation "to raise the question of jurisdiction."[62]
More importantly, it is apparent that not only was AIFC afforded the opportunity
to present evidence, it actually took advantage of this opportunity by presenting
documentary evidence, as asserted by Glorious Sun, an assertion which AIFC most
notably failed to refute. As we have declared time and again, what is repugnant to
due process is the denial of the opportunity to be heard.[63] That AIFC was afforded
this opportunity is beyond question.
From what has been discussed the following conclusions are made:
(1) AIFC no longer has the legal personality to prosecute the above-entitled petitions
and may therefore no longer claim entitlement to the export allocations subject of
these petitions;

(2) It is the GTEB, and not the regular courts, nor the Court of Appeals, which has
the jurisdiction to adjudicate on the question of AIFC's entitlement to the export
allocations subject to these petitions; and

(3) AIFC's right to due process was in no wise violated by the GTEB, the former not
having taken advantage of the opportunity afforded to it to present evidence in its
behalf.

WHEREFORE, AIFC's petition in G.R. No. 115889 is hereby DENIED for lack of
merit, as well as for being moot and academic, AIFC having lost the legal personality
to prosecute the same. GTEB's petition is GRANTED, and the assailed January 21,
1994 Decision and March 22, 1994 Resolution of the Court of Appeals in CA-G.R.
SP No. 31596 is hereby ANNULLED AND SET ASIDE (except insofar as it denied
AIFC and AIFC International Fashion Corporation's "Motion for Issuance of Writ
of Mandamus"). Said CA-G.R SP No. 31596 is likewise ordered annulled and set
aside.
SO ORDERED.
LORENZO M. TAÑADA and DIOSDADO MACAPAGAL, petitioners,
vs.
MARIANO JESUS CUENCO, FRANCISCO A. DELGADO, ALFREDO CRUZ,
CATALINA CAYETANO, MANUEL SERAPIO, PLACIDO REYES, and FERNANDO
HIPOLITO in his capacity as cashier and disbursing officer,respondents.
Tañada, Teehankee and Macapagal for petitioners.
Office of the Solicitor General Ambrosio Padilla and Solicitor Troadio T. Quiazon, Jr.
for respondents.
CONCEPCION, J.:
Petitioner Lorenzo M. Tañada is a member of the Senate of the Philippines, and
President of the Citizens Party, whereas petitioner Diosdado Macapagal, a member
of the House of Representatives of the Philippines, was one of the official candidates
of the Liberal Party for the Senate, at the General elections held in November, 1955,
in which Pacita Madrigal Warns, Lorenzo Sumulong, Quintin Paredes, Francisco
Rodrigo, Pedro Sabido, Claro M. Recto, Domocao Alonto and Decoroso Rosales,
were proclaimed elected. Subsequently, the elections of this Senators-elect-who
eventually assumed their respective seats in the Senate-was contested by petitioner
Macapagal, together with Camilo Osias, Geronima Pecson, Macario Peralta, Enrique
Magalona, Pio Pedrosa and William Chiongbian-who had, also, run for the Senate, in
said election-in Senate Electoral Case No. 4, now pending before the Senate
Electoral Tribunal. .
The Senate, in its session of February 22, 1956, upon nomination of Senator
Cipriano Primicias, on behalf of the Nacionalista Party, chose Senators Jose P.
Laurel, Fernando Lopez and Cipriano Primicias, as members of the Senate Electoral
Tribunal. Upon nomination of petitioner Senator Tañada, on behalf of the Citizens
Party, said petitioner was next chosen by the Senate as member of said Tribunal.
Then, upon nomination of Senator Primicias on behalf of the Committee on Rules of
the Senate, and over the objections of Senators Tañada and Sumulong, the Senate
choose respondents Senators Mariano J. Cuenco and Francisco A. Delgado as
members of the same Electoral Tribunal. Subsequently, the Chairman of the latter
appointed: (1) Alfredo Cruz and Catalina Cayetano, as technical assistant and
private secretary, respectively, to Senator Cuenco, as supposed member of the
Senate Electoral Tribunal, upon his recommendation of said respondent; and (2)
Manuel Serapio and Placido Reyes, as technical assistant and private secretary,
respectively to Senator Delgado, as supposed member of said Electoral Tribunal,
and upon his recommendation.
Soon, thereafter, Senator Lorenzo M. Tañada and Congressman Diosdado
Macapagal instituted the case at bar against Senators Cuenco and Delgado, and
said Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes, as well as
Fernando Hipolito, in his capacity as Cashier and Disbursing Officer of the Senate
Electoral Tribunal. Petitioners allege that on February 22, 1956, as well as at
present, the Senate consists of 23 Senators who belong to the Nacionalista Party,
and one (1) Senator-namely, petitioner, Lorenzo M. Tañada-belonging to the Citizens
Party; that the Committee on Rules for the Senate, in nominating Senators Cuenco
and Delgado, and the Senate, in choosing these respondents, as members of the
Senate Electoral Tribunal, had "acted absolutely without power or color of authority
and in clear violation .. of Article VI, Section 11 of the Constitution"; that "in assuming
membership in the Senate Electoral Tribunal, by taking the corresponding oath of
office therefor", said respondents had "acted absolutely without color of appointment
or authority and are unlawfully, and in violation of the Constitution, usurping,
intruding into and exercising the powers of members of the Senate Electoral
Tribunal"; that, consequently, the appointments of respondents, Cruz, Cayetano,
Serapio and Reyes, as technical assistants and private secretaries to Senators
Cuenco and Delgado-who caused said appointments to be made-as members of the
Senate Electoral Tribunal, are unlawful and void; and that Senators Cuenco and
Delgado "are threatening and are about to take cognizance of Electoral Case No. 4
of the Senate Electoral Tribunal, as alleged members thereof, in nullification of the
rights of petitioner Lorenzo M. Tañada, both as a Senator belonging to the Citizens
Party and as representative of the Citizens Party in the Senate Electoral Tribunal,
and in deprivation of the constitutional rights of petitioner Diosdado Macapagal and
his co-protestants to have their election protest tried and decided-by an Electoral
Tribunal composed of not more than three (3) senators chosen by the Senate upon
nomination of the party having the largest number of votes in the Senate and not
more than the (3) Senators upon nomination of the Party having the second largest
number of votes therein, together, three (3) Justice of the Supreme Court to be
designated by the Chief Justice, instead of by an Electoral Tribunal packed with five
members belonging to the Nacionalista Party, which is the rival party of the Liberal
Party, to which the Petitioner Diosdado Macapagal and his co-protestants in
Electoral Case No. 4 belong, the said five (5) Nacionalista Senators having been
nominated and chosen in the manner alleged.. hereinabove.".
Petitioners pray that:.
"1. Upon petitioners' filing of bond in such amount as may be determined by this
Honorable Court, a writ of preliminary injunction be immediately issued directed to
respondents Mariano J. Cuenco, Francisco A. Delgado, Alfredo Cruz, Catalina
Cayetano, Manuel Serapio and Placido Reyes, restraining them from continuing to
usurp, intrude into and/ or hold or exercise the said public offices respectively being
occupied by them in the Senate Electoral Tribunal, and to respondent Fernando
Hipolito restraining him from paying the salaries of respondent Alfredo Cruz, Catalina
Cayetano, Manuel Serapio and Placido Reyes, pending this action.
"2. After hearing, judgment be rendered ousting respondent Mariano J. Cuenco
Francisco A. Delgado, Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido
Reyes from the aforementioned public offices in the Senate Electoral Tribunal and
that they be altogether excluded therefrom and making the Preliminary injunction
permanent, with costs against the respondents.".
Respondents have admitted the main allegations of fact in the petition, except insofar
as it questions the legality, and validity of the election of respondents Senators
Cuenco and Delgado, as members of the Senate Electoral Tribunal, and of the
appointment of respondent Alfredo Cruz, Catalina Cayetano, Manuel Serapio and
Placido Reyes as technical assistants and private secretaries to said respondents
Senators. Respondents, likewise, allege, by way of special and affirmative defenses,
that: (a) this Court is without power, authority of jurisdiction to direct or control the
action of the Senate in choosing the members of the Electoral Tribunal; and (b) that
the petition states no cause of action, because "petitioner Tañada has exhausted his
right to nominate after he nominated himself and refused to nominate two (2) more
Senators", because said petitioner is in estoppel, and because the present action is
not the proper remedy. .
I. Respondents assail our jurisdiction to entertain the petition, upon the ground that
the power to choose six (6) Senators as members of the Senate Electoral Tribunal
has been expressly conferred by the Constitution upon the Senate, despite the fact
that the draft submitted to the constitutional convention gave to the respective
political parties the right to elect their respective representatives in the Electoral
Commission provided for in the original Constitution of the Philippines, and that the
only remedy available to petitioners herein "is not in the judicial forum", but "to bring
the matter to the bar of public opinion.".
We cannot agree with the conclusion drawn by respondents from the foregoing facts.
To begin with, unlike the cases of Alejandrino vs. Quezon (46 Phil., 83) and Vera vs.
Avelino (77 Phil., 192)-relied upon by the respondents this is not an action against
the Senate, and it does not seek to compel the latter, either directly or indirectly, to
allow the petitioners to perform their duties as members of said House. Although the
Constitution provides that the Senate shall choose six (6) Senators to be members of
the Senate Electoral Tribunal, the latter is part neither of Congress nor of the Senate.
(Angara vs. Electoral Commission, 63 Phil., 139, Suanes vs. Chief Accountant, 81
Phil., 818; 46 Off. Gaz., 462.).
Secondly, although the Senate has, under the Constitution, the exclusive power to
choose the Senators who shall form part of the Senate Electoral Tribunal, the
fundamental law has prescribed the manner in which the authority shall be
exercised. As the author of a very enlightening study on judicial self-limitation has
aptly put it:.
"The courts are called upon to say, on the one hand, by whom certain powers shall
be exercised, and on the other hand, to determine whether the powers possessed
have been validly exercised. In performing the latter function, they do not encroach
upon the powers of a coordinate branch of the, government, since the determination
of the validity of an act is not the same, thing as the performance of the act. In the
one case we are seeking to ascertain upon whom devolves the duty of the particular
service. In the other case we are merely seeking to determine whether the
Constitution has been violated by anything done or attented by either an executive
official or the legislative." (Judicial Self-Limitation by Finkelstein, pp. 221, 224, 244,
Harvard Law Review, Vol. 39; emphasis supplied,).
The case of Suanes vs. Chief Accountant (supra) cited by respondent refutes their
own pretense. This Court exercised its jurisdiction over said case and decided the
same on the merits thereof, despite the fact that it involved an inquiry into the powers
of the Senate and its President over the Senate Electoral Tribunal and the personnel
thereof. .
Again, under the Constitution, "the legislative power" is vested exclusively in the
Congress of the Philippines. Yet, this does not detract from the power of the courts to
pass upon the constitutionality of acts of Congress 1 And, since judicial power
includes the authority to inquire into the legality of statutes enacted by the two
Houses of Congress, and approved by the Executive, there can be no reason why
the validity of an act of one of said Houses, like that of any other branch of the
Government, may not be determined in the proper actions. Thus, in the exercise of
the so-called "judicial supremacy", this Court declared that a resolution of the defunct
National Assembly could not bar the exercise of the powers of the former Electoral
Commission under the original Constitution. 2 (Angara vs. Electoral Commission,
supra), and annulled certain acts of the Executive 3 as incompatible with the
fundamental law.
In fact, whenever the conflicting claims of the parties to a litigation cannot properly be
settled without inquiring into the validity of an act of Congress or of either House
thereof, the courts have, not only jurisdiction to pass upon said issue, but, also, the
duty to do so, which cannot be evaded without violating the fundamental law and
paving the way to its eventual destruction. 4.
Neither are the cases of Mabanag vs. Lopez Vito (78 Phil., 1) and Cabili vs.
Francisco (88 Phil., 654), likewise, invoked by respondents, in point. In the Mabanag
case, it was held that the courts could not review the finding of the Senate to the
effect that the members thereof who had been suspended by said House should not
be considered in determining whether the votes cast therein, in favor of a resolution
proposing an amendment to the Constitution, sufficed to satisfy the requirements of
the latter, such question being a political one. The weight of this decision, as a
precedent, has been weakened, however, by our resolutions in Avelino vs. Cuenco
(83 Phil., 17), in which this Court proceeded to determine the number essential to
constitute a quorum in the Senate. Besides, the case at bar does not hinge on the
number of votes needed for a particular act of said body. The issue before us is
whether the Senate-after acknowledging that the Citizens Party is the party, having
the second largest number of votes in the Senate, to which party the Constitution
gives the right to nominate three (3) Senators for the Senate electoral Tribunal-could
validly choose therefor two (2) Nacionalista Senators, upon nomination by the floor
leader of the Nacionalista Party in the Senate, Senator Primicias claiming to act on
behalf of the Committee on Rules for the Senate.
The issue in the Cabili case was whether we could review a resolution of the Senate
reorganizing its representation in the Commission on Appointments. This was
decided in the negative, upon the authority of Alejandrino vs. Quezon (supra) and
Vera vs. Avelino (supra), the main purpose of the petition being "to force upon the
Senate the reinstatement of Senator Magalona in the Commission on
Appointments," one-half (1/2) of the members of which is to be elected by each
House on the basis of proportional representation of the political parties therein.
Hence, the issue depended mainly on the determination of the political alignment of
the members of the Senate at the time of said reorganization and of the necessity or
advisability of effecting said reorganization, which is a political question. We are not
called upon, in the case at bar, to pass upon an identical or similar question, it being
conceded, impliedly, but clearly, that the Citizens Party is the party with the second
largest number of votes in the Senate. The issue, therefore, is whether a right vested
by the Constitution in the Citizens Party may validly be exercised, either by the
Nacionalista Party, or by the Committee on Rules for the Senate, over the objection
of said Citizens Party.
xxx xxx xxx
The only ground upon which respondents' objection to the jurisdiction of this Court
and their theory to the effect that the proper remedy for petitioners herein is, not the
present action, but an appeal to public opinion, could possibly be entertained is,
therefore, whether the case at bar raises merely a political question, not one
justiciable in nature.
In this connection, respondents assert in their answer that "the remedy of petitioners
is not in the judicial forum, but, to use petitioner, Tañada's own words, to bring the
matter to the bar of public opinion' (p. 81, Discussion on the Creation of the Senate
Electoral Tribunal, February 21, 1956)." This allegation may give the impression that
said petitioner had declared, on the floor of the Senate, that his only relief against the
acts complained of in the petition is to take up the issue before the people- which is
not a fact. During the discussions in the Senate, in the course of the organization of
the Senate Electoral Tribunal, on February 21, 1956, Senator Tañada was asked
what remedies he would suggest if he nominated two (2) Nacionialista Senators and
the latter declined the, nomination. Senator Tañada replied:.
"There are two remedies that occur to my mind right now, Mr. Senator; one is the
remedy open to all of us that if we feel aggrieved and there is no recourse in the
court of justice, we can appeal to public opinion. Another remedy is an action in the
Supreme Court. Of course, as Senator Rodriguez, our President here, has said one
day; "If you take this matter to the Supreme Court, you will lose, because until now
the Supreme Court has always ruled against any action that would constitute
interference in the business of anybody pertaining to the Senate. The theory of
separation of powers will be upheld by the Supreme Court." But that learned opinion
of Senator Rodriguez, our President, notwithstanding, I may take the case to the
Supreme Court if my right herein is not respected. I may lose, Mr. President, but who
has not lost in the Supreme Court? I may lose because of the theory of the
separation of powers, but that does not mean, Mr. President, that what has been
done here is pursuant to the provision of the Constitution." (Congressional Record,
Vol. III, p. 339; emphasis supplied.).
This statement did not refer to the nomination, by Senator Primicias, and the
election, by the Senate, of Senators Cuenco and Delgado as members of said
Tribunal. Indeed, said nomination and election took place the day after the
aforementioned statement of Senator Tañada was made. At any rate, the latter
announced that he might "take the case to the Supreme Court if my right here is not
respected.".
As already adverted to, the objection to our jurisdiction hinges on the question
whether the issue before us is political or not. In this connection, Willoughby lucidly
states:.
"Elsewhere in this treatise the well-known and well-established principle is
considered that it is not within the province of the courts to pass judgment upon the
policy of legislative or executive action. Where, therefore, discretionary powers are
granted by the Constitution or by statute, the manner in which those powers are
exercised is not subject to judicial review. The courts, therefore, concern themselves
only with the question as to the existence and extent of these discretionary powers.
"As distinguished from the judicial, the legislative and executive departments are
spoken of as the political departments of government because in very many cases
their action is necessarily dictated by considerations of public or political policy.
These considerations of public or political policy of course will not permit the
legislature to violate constitutional provisions, or the executive to exercise authority
not granted him by the Constitution or by, statute, but, within these limits, they do
permit the departments, separately or together, to recognize that a certain set of
facts exists or that a given status exists, and these determinations, together with the
consequences that flow therefrom, may not be traversed in the courts." (Willoughby
on the Constitution of the United States, Vol. 3, p. 1326; emphasis supplied.).
To the same effect is the language used in Corpus Juris Secundum, from which we
quote:.
"It is well-settled doctrine that political questions are not within the province of the
judiciary, except to the extent that power to deal with such questions has been
conferred upon the courts by express constitutional or statutory provisions.
"It is not easy, however, to define the phrase `political question', nor to determine
what matters, fall within its scope. It is frequently used to designate all questions that
lie outside the scope of the judicial questions, which under the constitution, are to be
decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or executive branch of
the government." (16 C.J.S., 413; see, also Geauga Lake Improvement Ass'n. vs.
Lozier, 182 N. E. 491, 125 Ohio St. 565; Sevilla vs, Elizalde, 112 F. 2d 29, 72 App.
D. C., 108; emphasis supplied.).
Thus, it has been repeatedly held that the question whether certain amendments to
the Constitution are invalid for non-compliance with the procedure therein prescribed,
is not a political one and may be settled by the Courts. 5 .
In the case of In re McConaughy (119 N.W. 408), the nature of political question was
considered carefully. The Court said:.
"At the threshold of the case we are met with the assertion that the questions
involved are political, and not judicial. If this is correct, the court has no jurisdiction as
the certificate of the state canvassing board would then be final, regardless of the
actual vote upon the amendment. The question thus raised is a fundamental one; but
it has been so often decided contrary to the view contended for by the Attorney
General that it would seem to be finally settled.
xxx xxx x x x.
" .. What is generally meant, when it is, said that a question is political, and not
judicial, is that it is a matter which, is to be exercised by the people in their primary
political capacity, or that it has been specifically delegated to some other department
or particular officer of the government, with discretionary power to act. See State vs.
Cunningham, 81 Wis. 497, 51 L. R. A. 561; In Re Gunn, 50 Kan. 155; 32 Pac. 470,
948, 19 L. R. A. 519; Green vs. Mills, 69 Fed. 852, 16, C. C. A. 516, 30 L. R. A. 90;
Fletcher vs. Tuttle, 151 Ill. 41, 37 N. E. 683, 25 L. R. A. 143, 42 Am. St. Rep. 220.
Thus the Legislature may in its discretion determine whether it will pass a law or
submit a proposed constitutional amendment to the people. The courts have no
judicial control over such matters, not merely because they involve political question,
but because they are matters which the people have by the Constitution delegated to
the Legislature. The Governor may exercise the powers delegated to him, free from
judicial control, so long as he observes the laws and acts within the limits of the
power conferred. His discretionary acts cannot be controllable, not primarily because
they are of a political nature, but because the Constitution and laws have placed the
particular matter under his control. But every officer under a constitutional
government must act according to law and subject him to the restraining and
controlling power of the people, acting through the courts, as well as through the
executive or the Legislature. One department is just as representative as the other,
and the judiciary is the department which is charged with the special duty of
determining the limitations which the law places upon all official action. The
recognition of this principle, unknown except in Great Britain and America, is
necessary, to the end that the government may be one of laws and not men'-words
which Webster said were the greatest contained in any written constitutional
document." (pp. 411, 417; emphasis supplied.).
In short, the term "political question" connotes, in legal parlance, what it means in
ordinary parlance, namely, a question of policy. In other words, in the language of
Corpus Juris Secundum (supra), it refers to "those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard
to which full discretionary authority has been delegated to the Legislature or
executive branch of the Government." It is concerned with issues dependent upon
the wisdom, not legality, of a particular measure.
Such is not the nature of the question for determination in the present case. Here, we
are called upon to decide whether the election of Senators Cuenco and Delgado, by
the Senate, as members of the Senate Electoral Tribunal, upon nomination by
Senator Primicias-a member and spokesman of the party having the largest number
of votes in the Senate-on behalf of its Committee on Rules, contravenes the
constitutional mandate that said members of the Senate Electoral Tribunal shall be
chosen "upon nomination .. of the party having the second largest number of votes"
in the Senate, and hence, is null and void. This is not a political question. The Senate
is not clothed with "full discretionary authority" in the choice of members of the
Senate Electoral Tribunal. The exercise of its power thereon is subject to
constitutional limitations which are claimed to be mandatory in nature. It is clearly
within the legitimate prove of the judicial department to pass upon the validity the
proceedings in connection therewith.
".. whether an election of public officers has been in accordance with law is for the
judiciary. Moreover, where the legislative department has by statute prescribed
election procedure in a given situation, the judiciary may determine whether a
particular election has been in conformity with such statute, and, particularly, whether
such statute has been applied in a way to deny or transgress on the constitutional or
statutory rights .." (16 C.J.S., 439; emphasis supplied.).
It is, therefore, our opinion that we have, not only jurisdiction, but, also, the duty, to
consider and determine the principal issue raised by the parties herein.
II. Is the election of Senators Cuenco and Delgado, by the Senate, as members of
the Electoral Tribunal, valid and lawful?.
Section 11 of Article VI of the Constitution, reads:.
"The Senate and the House of Representatives shall each have an Electoral Tribunal
which shall be the sole judge of all contests relating to the election, returns, and
qualifications of their respective Members. Each Electoral Tribunal shall be
composed of nine Members, three of whom shall be Justices of the Supreme Court
to be designated by the Chief Justice, and the remaining six shall be Members of the
Senate or of the House of Representatives, as the case may be, who shall be
chosen by each House, three upon nomination of the party having the largest
number of votes and three of the party having the second largest number of votes
therein. The Senior Justice in each Electoral Tribunal shall be its Chairman."
(Emphasis supplied.).
It appears that on February 22, 1956, as well as at present, the Senate of the
Philippines consists of twenty three (23) members of the Nacionalista Party and one
(1) member of the Citizens Party, namely, Senator Tañada, who is, also, the
president of said party. In the session of the Senate held on February 21, 1956,
Senator Sabido moved that Senator Tañada, "the President of the Citizens Party, be
given the privilege to nominate .. three (3) members" of the Senate Electoral Tribunal
(Congressional Record for the Senate, Vol. III, pp. 328-329), referring to those who,
according to the provision above-quoted, should be nominated by "the party having
the second largest number of votes" in the Senate. Senator Tañada objected
formally to this motion upon the-ground: (a) that the right to nominate said members
of the Senate Electoral Tribunal belongs, not to the Nacionalista Party of which
Senator Sabido and the other Senators are members-but to the Citizens Party, as
the one having the second largest number of votes in the Senate, so that, being
devoid of authority to nominate the aforementioned members of said Tribunal, the
Nacionalista Party cannot give it to the Citizens Party, which, already, has such
authority, pursuant to the Constitution; and (b) that Senator Sabido's motion would
compel Senator Tañada to nominate three (3) Senators to said Tribunal, although as
representative of the minority party in the Senate he has "the right to nominate one,
two or three to the Electoral Tribunal," in his discretion. Senator Tañada further
stated that he reserved the right to determine how many he would nominate, after
hearing the reasons of Senator Sabido in support of his motion. After some
discussion, in which Senators Primicias, Cea, Lim, Sumulong, Zulueta, and Rodrigo
took part, the Senate adjourned until the next morning, February 22, 1956 (Do., do,
pp. 329, 330, 332-333, 336, 338, 339, 343).
Then, said issues were debated upon more extensively, with Senator Sumulong, not
only seconding the opposition of Senator Tañada, but, also, maintaining that
"Senator Tañada should nominate only one" member of the Senate, namely, himself,
he being the only Senator who belongs to the minority party in said House (Do., do.,
pp. 360-364, 369). Thus, a new issue was raised - whether or not one who does not
belong to said party may be nominated by its spokesman, Senator Tañada - on
which Senators Paredes, Pelaez, Rosales and Laurel, as well as the other Senators
already mentioned, expressed their views (Do., do., pp. 345, 349, 350, 354, 358,
364, 375). Although the deliberations of the Senate consumed the whole morning
and afternoon of February 22, 1956, a satisfactory solution of the question before the
Senate appeared to be remote. So, at 7:40 p.m., the meeting was suspended, on
motion of Senator Laurel, with a view to seeking a compromise formula (Do., do., pp.
377). When session was resumed at 8:10 p.m., Senator Sabido withdrew his motion
above referred to. Thereupon, Senator Primicias, on behalf of the Nacionalista Party,
nominated, and the Senate elected, Senators Laurel, Lopez and Primicias, as
members of the Senate Electoral Tribunal. Subsequently, Senator Tañada stated:.
"On behalf of the Citizens Party, the minority party in this Body, I nominate the only
Citizens Party member in this Body, and that is Senator Lorenzo M. Tañada.".
Without an objection, this nomination was approved by the House. Then, Senator
Primicias stood up and said:.
"Now, Mr. President, in order to comply with the provision in the Constitution, the
Committee on Rules of the Senate-and I am now making this proposal not on behalf
of the Nacionalista Party but on behalf of the Committee on Rules of the Senate-I
nominate two other members to complete the membership of the Tribunal: Senators
Delgado and Cuenco.".
What took place thereafter appears in the following quotations from the
Congressional Record for the Senate.
"SENATOR TAÑADA. Mr. President.
"EL PRESIDENTE INTERINO. Caballero de Quezon.
"SENATOR TAÑADA. I would like to record my opposition to the nominations of the
last two named gentlemen, Senators Delgado and Cuenco, not because I don't
believe that they do not deserve to be appointed to the tribunal but because of my
sincere and firm conviction that these additional nominations are not sanctioned by
the Constitution. The Constitution only permits the Nacionalista Party or the party
having the largest number of votes to nominate three.
"SENATOR SUMULONG. Mr. President.
"EL PRESIDENTE INTERINO. Caballero de Rizal.
"SENATOR SUMULONG. For the reasons that I have stated a few moments ago
when I took the floor, I also wish to record my objection to the last nominations, to
the nomination of two additional NP's to the Electoral Tribunal.
"EL PRESIDENTE INTERINO. Esta dispuesto el Senado a votar? (Varios
Senadores: Si.) Los que esten conformes con la nominacion hecha por el Presidente
del Comite de Reglamentos a favor de los Senadores Delgado y Cuenco para ser
miembros del Tribunal Electoral, digan, si. (Varios Senadores: Si.) Los que no lo
esten digan, no (Silencio.) Queda aprobada." (Congressional Record for the Senate,
Vol. III, p. 377; emphasis supplied.).
Petitioners maintain that said nomination and election of Senators Cuenco and
Delgado-who belong to the Nacionalista Party-as members of the Senate Electoral
Tribunal, are null and void and have been made without power or color of authority,
for, after the nomination by said party, and the election by the Senate, of Senators
Laurel, Lopez and Primicias, as members of said Tribunal, the other Senators, who
shall be members thereof, must necessarily be nominated by the party having the
second largest number of votes in the Senate, and such party is, admittedly, the
Citizens Party, to which Senator Tañada belongs and which he represents.
Respondents allege, however, that the constitutional mandate to the effect that "each
Electoral Tribunal shall be compose of nine (9) members," six (6) of whom "shall be
members of the Senate or of the House of Representatives, as the case may be", is
mandatory; that when-after the nomination of three (3) Senators by the majority
party, and their election by the Senate, as members of the Senate Electoral Tribunal-
Senator Tañada nominated himself only, on behalf of the minority party, he thereby
"waived his right to no two more Senators;" that, when Senator Primicias nominated
Senators Cuenco and Delgado, and these respondents were chosen by the Senate,
as members of the Senate Electoral Tribunal, Said Senator Primicias and the Senate
merely complied with the aforementioned provision of the fundamental law, relative
to the number of members of the Senate Electoral Tribunal; and, that, accordingly,
Senators Cuenco and Delgado are de jure members of said body, and the
appointment of their co-respondents, Alfredo Cruz, Catalina Cayetano, Manuel
Serapio and Placido Reyes is valid and lawful.
At the outset, it will be recalled that the proceedings the organization of the Senate
Electoral Tribunal began with a motion of Senator Sabido to the effect that "the
distinguished gentleman from Quezon, the President of the Citizens Party, be given
the privilege to nominate the three Members" of said Tribunal. Senator Primicias
inquired why the movant had used the word "privilege". Senator Sabido explained
that the present composition of the Senate had created a condition or situation which
was not anticipated by the framers of our Constitution; that although Senator Tañada
formed part of the Nacionalista Party before the end of 1955, he subsequently parted
ways with" said party; and that Senator Tañada "is the distinguished president of the
Citizens Party," which "approximates the situation desired by the framers of the
Constitution" (Congressional Record for the Senate Vol. III, pp. 329-330). Then
Senator Lim intervened, stating:.
"At present Senator Tañada is considered as forming the only minority or the one
that has the second largest number of votes in the existing Senate, is not that right?
And if this is so, he should be given this as a matter of right, not as a matter of
privilege. .. I don't believe that we should be allowed to grant this authority to Senator
Tañada only as a privilege but we must grant it as a matter of right." (Id., id., p. 32;
emphasis supplied.).
Similarly, Senator Sumulong maintained that "Senator Tañada, as Citizens Party
Senator, has the right and not a mere privilege to nominate," adding that:.
".. the question is whether we have a party here having the second largest number of
votes, and it is clear in my mind that there is such a party, and that is the Citizens
Party to which the gentleman from Quezon belongs. .. We have to bear in mind, ..
that when Senator Tañada was included in the Nacionalista Party ticket in 1953, it
was by virtue of a coalition or an alliance between the Citizens Party and the
Nacionalista Party at that time, and I maintain that when Senator Tañada as head of
the Citizens Party entered into a coalition with the Nacionalista Party, he did not
thereby become a Nacionalista because that was a mere coalition, not a fusion.
When the Citizens Party entered into a mere coalition, that party did not lose its
personality as a party separate and distinct from the, Nacionalista Party. And we
should also remember that the certificate of candidacy filed by Senator Tañada in the
1953 election was one to the effect that he belonged to the Citizens Party .." (Id., id.,
p. 360; emphasis supplied.).
The debate was closed by Senator Laurel, who remarked, referring to Senator
Tañada:.
"..there is no doubt that he does not belong to the majority in the first place, and that,
therefore, he belongs to the minority. And whether we like it or not, that is the reality
of the actual situation-that he is not a Nacionalista now, that he is the head and the
representative of the Citizens Party. I think that on equitable ground and from the
point of view of public opinion, his situation .. approximates or approaches what is
within the spirit of that Constitution. .. and from the point of view of the spirit of the
Constitution it would be a good thing if we grant the opportunity to Senator Tañada to
help us in the organization of this Electoral Tribunal (Id., id., p. 376; emphasis
supplied.).
The foregoing statements and the fact that, thereafter, Senator Sabido withdrew his
motion to grant Senator Tañada the "privilege" to nominate, and said petitioner
actually nominated himself "on behalf of the Citizens Party, the minority party in this
Body"-not only without any, objection whatsoever, but, also, with the approval of the
Senate-leave no room for doubt that the Senate-leave no room for doubt that the
Senate has regarded the Citizens Party, represented by Senator Tañada, as the
party having the second largest number of votes in said House.
Referring, now, to the contention of respondents herein, their main argument in
support of the mandatory character of the constitutional provision relative to the
number of members of the Senate Electoral Tribunal is that the word "shall", therein
used, is imperative in nature and that this is borne out by an opinion of the Secretary
of Justice dated February 1, 1939, pertinent parts of which are quoted at the
footnote. 6.
Regardless of the respect due its author, as a distinguished citizen and public official,
said opinion has little, if any, weight in the solution of the question before this Court,
for the practical construction of a Constitution is of little, if any, unless it has been
uniform .." 6a Again, "as a general rule, it is only in cases of substantial doubt and
ambiguity that the doctrine of contemporaneous or practical construction has any
application". As a consequence, "where the meaning of a constitutional provision is
clear, a contemporaneous or practical executive interpretation thereof is entitled to
no weight, and will not be allowed to distort or in any way change its natural
meaning." The reason is that "the application of the doctrine of contemporaneous
construction is more restricted as applied to the interpretation of constitutional
provisions than when applied to statutory provisions", and that, "except as to matters
committed by the Constitution, itself to the discretion of some other department,
contemporary or practical construction is not necessarily binding upon the courts,
even in a doubtful case." Hence, "if in the judgment of the court, such construction is
erroneous and its further application is not made imperative by any paramount
considerations of public policy, it may he rejected." (16 C. J. S., 71-72; emphasis
supplied.) 6b.
The aforemention opinion of the Secretary of Justice is not backed up by a, "uniform"
application of the view therein adopted, so essential to give thereto the weight
accorded by the rules on contemporaneous constructions. Moreover, said opinion
tends to change the natural meaning of section 11 of Article VI of the Constitution,
which is clear. What is more, there is not the slightest doubt in our mind that the
purpose and spirit of said provisions do not warrant said change and that the
rejection of the latter is demanded by paramount considerations of public policy. .
The flaw in the position taken in said opinion and by respondent herein is that, while,
it relies upon the compulsory nature of the word "shall", as regards the number of
members of the Electoral Tribunals, it ignores the fact that the same term is used
with respect to the method prescribed for their election, and that both form part of a
single sentence and must be considered, therefore, as integral portions of one and
the same thought. Indeed, respondents have not even tried to show and we cannot
conceive-why "shall" must be deemed mandatory insofar as the number of members
of each Electoral Tribunal, and should be considered directory as regards the
procedure for their selection. More important still, the history of section 11 of Article
VI of the Constitution and the records of the Convention, refute respondents'
pretense, and back up the theory of petitioners herein.
Commenting on the frame of mind of the delegates to the Constitutional Convention,
when they faced the task of providing for the adjudication of contests relating to the
election, returns and qualifications of members of the Legislative Department, Dr.
Jose M. Aruego, a member of said Convention, says:.
"The experience of the Filipino people under the provisions of the organic laws which
left to the lawmaking body the determination of the elections, returns, and
qualifications of its members was not altogether satisfactory. There were many
complaints against the lack of political justice in this determination; for in a great
number of cases, party interests controlled and dictated the decisions. The undue
delay in the dispatch of election contests for legislative seats, the irregularities that
characterized the proceedings in some of them, and the very apparent injection of
partisanship in the determination of a great number of the cases were decried by a
great number of the people as well as by the organs of public opinion.
"The faith of the people in the uprightness of the lawmaking body in the performance
of this function assigned to it in the organic laws was by no means great. In fact so
blatant was the lack of political justice in the decisions that there was, gradually built
up a camp of thought in the Philippines inclined to leave to the courts the
determination of election contests, following the practice in some countries, like
England and Canada.
"Such were the conditions of things at the time of the meeting of the convention."
(The Framing of the Philippine Constitution by Aruego, Vol. 1, pp. 257-258; emphasis
supplied.).
This view is shared by distinguished members of the Senate. Thus, in its session of
February 22, 1956, Senator Sumulong declared:.
".. when you leave it to either House to decide election protests involving its own
members, that is virtually placing the majority party in a position to dictate the
decision in those election cases, because each House will be composed of a
majority and a minority, and when you make each House the judge of every election
protest involving any member of that House, you place the majority in a position to
dominate and dictate the decision in the case and result was, there were so many
abuses, there were so main injustices: committed by the majority at the expense and
to the prejudice of the minority protestants. Statements have been made here that
justice was done even under the old system, like that case involving Senator
Mabanag, when he almost became a victim of the majority when he had an election
case, and it was only through the intervention of President Quezon that he was
saved from becoming the victim of majority injustices.
"It is true that justice had sometimes prevailed under the old system, but the record
will show that those cases were few and they were the rare exceptions. The
overwhelming majority of election protests decided under the old system was that the
majority being then in a position to dictate the, decision in the election protest, was
tempted to commit as it did commit many abuses and injustices." (Congressional
Record for the Senate, Vol. 111, p. 361; emphasis supplied.).
Senator Paredes, a veteran legislator and former Speaker of the House of
Representatives, said:.
".. what was intended in the creation of the electoral tribunal was to create a sort of
collegiate court composed of nine members: Three of them belonging to the party
having the largest number of votes, and three from the party having the second
largest number votes so that these members may represent the party, and the
members of said party who will sit before the electoral tribunal as protestees. For
when it comes to a party, Mr. President, there ground to believe that decisions will be
made along party lines." (Congressional Record for the Senate, Vol. III, p. 351;
emphasis supplied.).
Senator Laurel, who played an important role in the framing of our Constitution,
expressed himself as follows:.
"Now, with reference to the protests or contests, relating to the election, the returns
and the qualifications of the members of the legislative bodies, I heard it said here
correctly that there was a time when that was given to the corresponding chamber of
the legislative department. So the election, returns and qualifications of the
members, of the Congress or legislative body was entrusted to that body itself as the
exclusive body to determine the election, returns and qualifications of its members.
There was some doubt also expressed as to whether that should continue or not,
and the greatest argument in favor of the retention of that provision was the fact that
was, among other things, the system obtaining in the United States under the
Federal Constitution of the United States, and there was no reason why that power
or that right vested in the legislative body should not be retained. But it was thought
that would make the determination of this contest, of this election protest, purely
political as has been observed in the past." (Congressional Record for the Senate,
Vol. III, p. 376; emphasis supplied.).
It is interesting to note that not one of the members of the Senate contested the
accuracy of the views thus expressed.
Referring particularly to the philosophy underlying the constitutional provision quoted
above, Dr. Aruego states:.
"The defense of the Electoral Commission was based primarily upon the hope and
belief that the abolition of Party line because of the equal representation in this body
of the majority and the minority parties of the National Assembly and the intervention
of some members of the Supreme Court who, under the proposed constitutional
provision, would also be members of the same, would insure greater political justice
in the determination of election contests for seats in the National Assembly than
there would be if the power had been lodged in the lawmaking body itself. Delegate
Francisco summarized the arguments for the creation of the Electoral Commission in
the following words:.
"I understand that from the time that this question is placed in the hands of members
not only of the majority party but also of the minority party, there is already a
condition, a factor which would make protests decided in a non-partisan manner. We
know from experience that many times in the many protests tried in the House or in
the Senate, it was impossible to prevent the factor of party from getting in. From the
moment that it is required that not only the majority but also the minority should
intervene in these questions, we have already enough guarantee that there would be
no tyranny on the part of the majority.
`But there is another more detail which is the one which satisfies me most, and that
is the intervention of three justices. So that with this intervention of three justices if
there would be any question as to the justice applied by the majority or the minority,
if there would be any fundamental disagreement, or if there would be nothing but
questions purely of party in which the members of the majority as well as those of the
minority should wish to take lightly a protest because the protestant belongs to one
of said parties, we have in this case, as a check upon the two parties, the actuations
of the three justices. In the last analysis, what is really applied in the determination of
electoral cases brought before the tribunals of justice or before the House of
Representatives or the Senate? Well, it is nothing more than the law and the doctrine
of the Supreme Court. If that is the case, there will be greater skill in the application
of the laws and in the application of doctrines to electoral matters having as we shall
have three justices who will act impartially in these electoral questions.
`I wish to call the attention of my distinguished colleagues to the fact that in electoral
protests it is impossible to set aside party interests. Hence, the best guarantee, I
repeat, for the administration of justice to the parties, for the fact that the laws will not
be applied rightfully or incorrectly as well as for the fact that the doctrines of the
Supreme Court will be applied rightfully, the best guarantee which we shall have, I
repeat, is the intervention of the three justices. And with the formation of the Electoral
Commission, I say again, the protestants as well as the protestees could remain
tranquil in the certainty that they will receive the justice that they really deserve. If we
eliminate from this precept the intervention of the party of the minority and that of the
three justices, then we shall be placing protests exclusively in the hands of the party
in power. And I understand, gentlemen, that in practice that has not given good
results. Many have criticized, many have complained against, the tyranny of the
majority in electoral cases .. I repeat that the best guarantee the fact that these
questions will be judged not only by three members of the majority but also by three
members of the minority, with the additional guarantee of the impartial judgment of
three justices of the Supreme Court." (The Framing of the Philippine Constitution by
Aruego, Vol. I, pp. 261-263; emphasis supplied.).
The foregoing was corroborated by Senator Laurel. Speaking for this Court, in
Angara vs. Electoral Commission (63 Phil., 139), he asserted:.
"The members of the Constitutional Convention who framed our fundamental law
were in their majority-men mature in years and experience. To be sure, many of
them were familiar with the history and political development of other countries of the
world. When, therefore they deemed it wise to create an Electoral Commission as a
constitutional organ and invested with the exclusive function of passing upon and
determining the election, returns and qualifications of the members of the National
Assembly, they must have done so not only in the light of their own experience but
also having in view the experience of other enlightened peoples of the world. The
creation of the Electoral Commission was designed to remedy certain evils of which
the framers of our Constitution were cognizant. Notwithstanding the vigorous
opposition of some members of the Convention to its creation, the plan, as
hereinabove stated, was approved by that body by a vote of 98 against 58. All that
can be said now is that, upon the approval of the Constitution, the creation of the
Electoral Commission is the expression of the wisdom `ultimate justice of the
people'. (Abraham Lincoln, First Inaugural Address, March 4, 1861.).
"From the deliberations of our Constitutional Convention it is evident that the purpose
was to transfer in its totality all the powers previously exercised by the legislature in
matters pertaining to contested elections of its members, to an independent and
impartial tribunal. It was not so much the knowledge and appreciation of
contemporary constitutional precedents, however, as the long felt need of
determining legislative contests devoid of partisan considerations which prompted
the people acting through their delegates to the Convention, to provide for this body
known as the Electoral Commission. With this end in view, a composite body in
which both the majority and minority parties are equally represented to off-set
partisan influence in its deliberations was created, and further endowed with judicial
temper by including in its membership three justices of the Supreme Court," (Pp.
174-175.) 7.
As a matter of fact, during the deliberations of the convention, Delegates Conejero
and Roxas said:.
"El Sr. CONEJERO. Antes de votarse la enmienda, quisiera pedir informacion del
Subcomite de Siete.
"El Sr. PRESIDENTE. Que dice el Comite?" El Sr. ROXAS. Con mucho gusto. "El
Sr. CONEJERO. Tal como esta el draft., dando tres miembrosala mayoria, y otros
t?-es a la minyoryia y atros a la Corte Suprerma, no cree su Senoria que este
equivale pricticamente a dejar el asunto a los miembros del Tribunal Supremo?.
"El Sr. ROXAS. Si y no. Creemos que si el tribunal a la Comision esta cotistuido en
esa forma, tanto los miembros de la mayoria como los de la minoria asi como los
miembros de la Corte Saprema consideration la cuestion sobre la base de sus
meritos, sabiendo que el partidismo no es suficiente para dar el triunbo.
"El Sr. CONEJERO. Cree Su Senoria que en un caso como ese, podriamos hacer
que tanto los de la mayoria como los de la minoria prescindieran del partidisrno?.
"El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo." (Angara vs.
Electoral Commission, supra, pp. 168-169; emphasis supplied.).
It is clear from the foregoing that the main objective of the framers of our Constitution
in providing for the establishment, first, of an Electoral Commission, 8 and then 9 of
one Electoral Tribunal for each House of Congress, was to insure the exercise of
judicial impartiality in the disposition of election contests affecting members of the
lawmaking body. To achieve this purpose, two devices were resorted to, namely: (a)
the party having the largest number of votes, and the party having the second largest
number of votes, in the National Assembly or in each House of Congress, were given
the same number of representatives in the Electoral Commission or Tribunal, so that
they may realize that partisan considerations could not control the adjudication of
said cases, and thus be induced to act with greater impartiality; and (b) the Supreme
Court was given in said body the same number of representatives as each one of
said political parties, so that the influence of the former may be decisive and endow
said Commission or Tribunal with judicial temper.
This is obvious from the very language of the constitutional provision under
consideration. In fact, Senator Sabido-who had moved to grant to Senator Tañada
the privilege" to make the nominations on behalf of party having the second largest
number of votes in the Senate-agrees with it. As Senator Sumulong inquired:.
"..I suppose Your Honor will agree with me that the framers of the Constitution
precisely thought of creating this Electoral Tribunal so as to prevent the majority from
ever having a preponderant majority in the Tribunal." (Congressional Record for the
Senate, Vol. III, p. 330; emphasis supplied.).
Senator Sabido replied:.
"That is so, .." (Id., p. 330.).
Upon further interpretation, Senator Sabido said:.
".. the purpose of the creation of the Electoral Tribunal and of its composition is to
maintain a balance between the two parties and make the members of the Supreme
Court the controlling power so to speak of the Electoral Tribunal or hold the balance
of power. That is the ideal situation." (Congressional Record for the Senate, Vol. III,
p. 349; emphasis supplied.).
Senator Sumulong opined along the same line. His words were: .
"..The intention is that when the three from the majority and the three from the
minority become members of the Tribunal it is hoped that they will become aware of
their judicial functions, not to protect the protestants or the protegees. It is hoped that
they will act as judges because to decide election cases is a judicial function. But the
framers of, the Constitution besides being learned were men of experience. They
knew that even Senators like us are not angels, that we are human beings, that if we
should be chosen to go to the Electoral Tribunal no one can say that we will entirely
be free from partisan influence to favor our party, so that in, case that hope that the
three from the majority and the three from the minority who will act as Judges should
result in disappointment, in case they do not act as judges but they go there and vote
along party liner, still there is the guarantee that they will offset each other and the
result will be that the deciding vote will reside in the hands of the three Justices who
have no partisan motives to favor either the protestees or the protestants. In other
words, the whole idea is to prevent the majority from controlling and dictating the
decisions of the Tribunal and to make sure that the decisive vote will be wielded by
the Congressmen or Senators who are members the Tribunal but will be wielded by
the Justices who, by virtue of their judicial offices, will have no partisan motives to
serve, either protestants, or protestees. That is my understanding of the intention of
the framers of the Constitution when they decided to create the Electoral Tribunal.
xxx xxx x x x.
"My idea is that the intention of the framers of the constitution in creating the
Electoral Tribunal is to insure impartially and independence in its decision, and that is
sought to be done by never allowing the majority party to control the Tribunal, and
secondly by seeing to it that the decisive vote in the Tribunal will be left in the hands
of persons who have no partisan interest or motive to favor either protestant or
protestee." (Congressional Record for the Senate, Vol. III, pp. 362-363, 365-366;
emphasis supplied.).
So important in the "balance of powers" between the two political parties in the
Electoral Tribunals, that several members of the Senate questioned the right of the
party having the second largest number of votes in the Senate and, hence, of
Senator Tañada, as representative of the Citizens Party-to nominate for the Senate
Electoral Tribunal any Senator not belonging to said party. Senators Lim, Sabido,
Cea and Paredes maintained that the spirit of the Constitution would be violated if
the nominees to the Electoral Tribunals did not belong to the parties respectively
making the nominations. 10.
It is not necessary, for the purpose of this decision, to determine whether the parties
having the largest, and the second largest, number of votes in each House may
nominate, to the Electoral Tribunals, those members of Congress who do not belong
to the party nominating them. It is patent, however, that the most vital feature of the
Electoral Tribunals is the equal representation of said parties therein, and the
resulting equilibrium to be maintained by the Justices of the Supreme Court as
members of said Tribunals. In the words of the members of the present Senate, said
feature reflects the "intent" "purpose", and "spirit of the Constitution", pursuant to
which the Senate Electoral Tribunal should be organized (Congressional Record for
the Senate, pp. 330, 337, 348-9, 350, 351, 355, 358, 362-3, 364, 370, 376).
Now then, it is well settled that "the purpose of all rules or maxims as to the
construction or interpretation of statutes is to discover the true intention of the law"
(82 C. J. S., 526) and that.
"As a general rule of statutory construction, the spirit or intention of a statute prevails
over the letter thereof, and whatever is within the spirit of statute is within the statute
although it is not within the letter, while that which is within the letter, but not within
the spirit of a statute, is not within the statute; but, where the law is free and clear
from ambiguity, the letter of it is not to be disregarded on the pretext of pursuing its
spirit." (82 C. J. S., 613.).
"There is no universal rule or absolute test by which directory provisions in a statute
may in all circumstances be distinguished from those which are mandatory.
However, in the determination of this question, as of every other question of statutory
construction, the prime object is to ascertain the legislative intent. The legislative
intent must be obtained front all the surrounding circumstances, and the
determination does not depend on the form of the statute. Consideration must be
given to the entire statute, its nature, its object, and the consequences which would
result from construing it one way or the other, and the statute must be construed in
connection with other related statutes. Words of permissive character may be given
a mandatory significance in order to effect the legislative intent, and, when the terms
of a statute are such that they cannot be made effective to the extent of giving each
and all of them some reasonable operation, without construing the statute as
mandatory, such construction should be given; .. On the other hand, the language of
a statute, however mandatory in form, may be deemed directory whenever legislative
purpose can best be carried out by such construction, and the legislative intent does
not require a mandatory construction; but the construction of mandatory words as
directory should not be lightly adopted and never where it would in fact make a new
law instead of that passed by the legislature. .. Whether a statute is mandatory or
directory depends on whether the thing directed to be done is of the essence of the
thing required, or is a mere matter of form, and what is a matter of essence can often
be determined only by judicial construction. Accordingly, when a particular provision
of a statute relates to some immaterial matter, as to which compliance with the
statute is a matter of convenience rather than substance, or where the directions of a
statute are given merely with a view to the proper, orderly, and prompt conduct of
business, it is generally regarded as directory, unless followed by words of absolute
prohibition; and a statute is regarded as directory were no substantial rights depend
on it, no injury can result from ignoring it, and the purpose of the legislative can be
accomplished in a manner other than that prescribed, with substantially the same
result. On the other hand, a provision relating to the essence of the thing to be done,
that is, to matters of substance, is mandatory, and when a fair interpretation of a
statute, which directs acts or proceedings to be done in a certain way shows that the
legislature intended a compliance with such provision to be essential to the validity of
the act or proceeding, or when same antecedent and pre-requisite conditions must
exist prior to the exercise of power, or must be performed before certain other
powers can be exercise, the statute must be regarded as mandatory. (Id., pp. 869-
874.) (See also, Words and Phrases, Vol. 26, pp. 463-467; emphasis supplied.).
What has been said above, relative to the conditions antecedent to, and concomitant
with, the adoption of section 11 of Article VI of the Constitution, reveals clearly that
its framers intended to prevent the majority party from controlling the Electoral
Tribunals, and that the structure thereof is founded upon the equilibrium between the
majority and the minority parties therein, with the Justices of the Supreme Court, who
are members of said Tribunals, holding the resulting balance of power. The
procedure prescribed in said provision for the selection of members of the Electoral
Tribunals is vital to the role they are called upon to play. it constitutes the essence of
said Tribunals. Hence, compliance with said procedure is mandatory, and acts
performed in violation thereof are null and void. 11.
It is true that the application of the foregoing criterion would limit the membership of
the Senate Electoral Tribunal, in the case at bar, to seven (7), instead of nine (9),
members; but, it is conceded that the present composition of the Senate was not
foreseen by the framers of our Constitution (Congressional Record for the Senate,
Vol. III, pp. 329, 342, 349, 354, 359, 375). Furthermore, the spirit of the law prevails
over its letter, and the solution herein adopted maintains the spirit of the Constitution,
for partisan considerations can not be decisive in a tribunal consisting of three (3)
Justices of the Supreme Court, three (3) members nominated by the majority party
and either one (1) or two (2) members nominated by the party having the second
largest number of votes in the House concerned.
Upon the other hand, what would be the result of respondents' contention if upheld?
Owing to the fact that the Citizens Party 12 has only one member in the Upper
House, Senator Tañada felt he should nominate, for the Senate Electoral Tribunal,
only said member of the Citizens Party. The same is, thus, numerically handicapped,
vis-a-vis the majority party, in said Tribunal. Obviously, Senator Tañada did not
nominate other two Senators, because, otherwise, he would worsen the already
disadvantageous position, therein, of the Citizens Party. Indeed, by the
aforementioned nomination and election of Senators Cuenco and Delgado, if the
same were sanctioned, the Nacionalista Party would have five (5) members in the
Senate Electoral Tribunal, as against one (1) member of the Citizens Party and three
members of the Supreme Court. With the absolute majority thereby attained by the
majority party in said Tribunal, the philosophy underlying the same would be entirely
upset. The equilibrium between the political parties therein would be destroyed. What
is worst, the decisive moderating role of the Justices of the Supreme Court would be
wiped out, and, in lieu thereof, the door would be thrown wide open for the
predominance of political considerations in the determination of election protests
pending before said Tribunal, which is precisely what the fathers of our Constitution
earnestly strove to forestall. 13.
This does not imply that the honesty, integrity or impartiality of Senators Cuenco and
Delgado are being questioned. As a matter of fact, when Senator Tañada objected to
their nomination, he explicitly made of record that his opposition was based, not
upon their character, but upon the principle involved. When the election of members
of Congress to the Electoral Tribunal is made dependent upon the nomination of the
political parties above referred to, the Constitution thereby indicates its reliance upon
the method of selection thus established, regardless of the individual qualities of
those chosen therefor. Considering the wealth of experience of the delegatesto the
Convention, as lawyers of great note, as veteran politicians and as leaders in other
fields of endeavor, they could not, and did not, ignore the fact that the Constitution
must limit itself to giving general patterns or norms of action. In connection,
particularly, with the composition of the Electoral Tribunals, they believed that, even
the most well meaning individuals often find it difficult to shake off the bias and
prejudice created by political antagonisms and to resist the demands of political
exigencies, the pressure of which is bound to increase in proportion to the degree of
predominance of the party from which it comes. As above stated, this was confirmed
by distinguished members of the present Senate. (See pp. 25-28, 33, 34, supra.).
In connection with the argument of the former Secretary of Justice to the effect that
when "there is no minority party represented in the Assembly, the necessity for such
a check by the minority disappears", the following observations of the petitioners
herein are worthy of notice:.
" Under the interpretation espoused by the respondents, the very frauds or terrorism
committed by a party would establish the legal basis for the final destruction of
minority parties in the Congress at least. Let us suppose, for example, that in the
Senate, the 15 or 16 senators with unexpired terms belong to the party A. In the
senatorial elections to fill the remaining 8 seats, all the 8 candidates of party A are
proclaimed elected through alleged fraud and/or terrorism. (The ouster of not less
than 3 senators-elect in the elections held since liberation attests to the reality of
election frauds and terrorism in our country.) There being no senator or only one
senator belonging to the minority, who would sit in judgment on the election
candidates of the minority parties? According to the contention of the respondents, it
would be a Senate Electoral Tribunal made up of three Supreme Court Justices and
5 or 6 members of the same party A accused of fraud and terrorism. Most
respectfully, we pray this Honorable Court to reject an interpretation that would make
of a democratic constitution the very instrument by which a corrupt and ruthless party
could entrench itself in power the legislature and thus destroy democracy in the
Philippines.
xxx xxx x x x.
".. When there are no electoral protests filed by the Minority party, or when the only
electoral protests filed are by candidates of the majority against members-elect of the
same majority party, there might be no objection to the statement. But if electoral
protests are filed by candidates of the minority party, it is at this point that a need for
a check on the majority party is greatest, and contrary to the observation made in the
above-quoted opinion, such a cheek is a function that cannot be successfully
exercised by the 3 Justices of the Supreme Court, for the obvious and simple reason
that they could easily be outvoted by the 6 members of the majority party in the
Tribunal.
xxx xxx x x x.
"In the case of the cited opinion of Secretary Abad Santos rendered in 1939, it, did
not appear that there were minority party candidates who were adversely affected by
the ruling of the Secretary of Justice and who could have brought a test case to
court." (Emphasis supplied.).
The defenses of waiver and estoppel set up against petitioner Tañada are untenable.
Although "an individual may waive constitutional provisions intended for his benefit",
particularly those meant for the protection of his property, and, sometimes, even
those tending "to secure his personal liberty", the power to waive does not exist
when "public policy or public morals" are involved. (11 Am. Jur. 765; I Cooley's
Constitutional Limitations, pp. 368-371). The procedure outlined in the Constitution
for the organization, of the Electoral Tribunals was adopted in response to the
demands of the common weal, and it has been held that where a statute is founded
on public policy, those to whom it applies should not be permitted to waive its
provisions" (82 C. J. S., 874). Besides, there can be no waiver without an intent to
such effect, which Senator Tañada did not have. Again, the alleged waiver or
exhaustion of his rights does not justify the exercise thereof by a person or party,
other than that to which it is vested exclusively by the Constitution.
The rule estoppel is that "whenever a party has, by his declaration, act or omissions,
intentionally and deliberately led another to believe a particular thing true, and to act
upon such belief, he cannot, in a litigation arising out of such declaration, act or
omission, be permitted to falsify it" (Rule 69, sec. 68 [a], Rules of Court). In the case
at bar, petitioner Senator Tañada did not lead the Senate to believe that Senator
Primicias could nominate Senators Cuenco and Delgado. On the contrary, said
petitioner repeatedly asserted that his was the exclusive right to make the
nomination. He, likewise, specifically contested said nomination of Senators Cuenco
and Delgado. Again, the rule on estoppel applies to questions of fact, not of law,
about the truth of which the other party is ignorant (see Moran's Comments on the
Rules of Court, Vol. 3, pp. 490, 495). Such is not the nature of the situation that
confronted Senator Tañada and the other members of the Senate. Lastly, the case of
Zandueta vs. De la Costa (66 Phil., 615), cited by respondents, is not in point. Judge
Zandueta assumed office by virtue of an appointment, the legality of which he later
on assailed. In the case at bar, the nomination and election of Senator Tañada as
member of the Senate Electoral Tribunal was separate, distinct and independent
from the nomination and election of Senators Cuenco and Delgado.
In view of the foregoing, we hold that the Senate may not elect, as members of the
Senate Electoral Tribunal, those Senators who have not been nominated by the
political parties specified in the Constitution; that the party having the largest number
of votes in the Senate may nominate not more than three (3) members thereof to
said Electoral Tribunal; that the party having the second largest number of votes in
the Senate has the exclusive right to nominate the other three (3) Senators who shall
sit as members in the Electoral Tribunal; that neither these three (3) Senators, nor
any of them, may be nominated by a person or party other than the one having the
second largest number of votes in the Senate or its representative therein; that the
Committee on Rules for the Senate has no standing to validly make such nomination
and that the nomination of Senators Cuenco and Delgado by Senator Primicias, and
the election of said respondents by the Senate, as members of said Tribunal, are null
and void ab initio.
As regards respondents Alfredo Cruz, Catalina Cayetano, Manuel Serapio and
Placido Reyes, we are not prepared to hold, however, that their appointments were
null and void. Although recommended by Senators Cuenco and Delgado, who are
not lawful members of the Senate Electoral Tribunal, they were appointed by its
Chairman, presumably, with the consent of the majority of the de jure members of
said body 14 or, pursuant to the Rules thereof. At any rate, as held in Suanes vs.
Chief Accountant (supra), the election of its personnel is an internal matter falling
within the jurisdiction and control of said body, and there is every reason to believe
that it will, hereafter take appropriate measures, in relation to the four (4)
respondents abovementioned, conformably with the spirit of the Constitution and of,
the decision in the case at bar.
Wherefore, judgment is hereby rendered declaring that, respondents Senators
Mariano Jesus Cuenco and Francisco A. Delgado have not been duly elected as
Members of the Senate Electoral Tribunal, that they are not entitled to act as such
and that they should be, as they are hereby, enjoined from exercising the powers
and duties of Members of said Electoral Tribunal and from acting in such capacity in
connection with Senate Electoral Case No. 4 thereof. With the qualification stated
above, the petition is dismissed, as regards respondents Alfredo Cruz, Catalina
Cayetano, Manuel Serapio and Placido Reyes. Without special pronouncement as to
costs. It is so ordered.
G.R. No. 106611 July 21, 1994
COMMISSIONER OF INTERNAL REVENUE, petitioner,
vs.
COURT OF APPEALS, CITYTRUST BANKING CORPORATION and COURT OF
TAX APPEALS, respondents.
The Solicitor General for petitioner.
Palaez, Adriano & Gregorio for private respondent.
REGALADO, J.:
The judicial proceedings over the present controversy commenced with CTA Case
No. 4099, wherein the Court of Tax Appeals ordered herein petitioner Commissioner
of Internal Revenue to grant a refund to herein private respondent Citytrust Banking
Corporation (Citytrust) in the amount of P13,314,506.14, representing its overpaid
income taxes for 1984 and 1985, but denied its claim for the alleged refundable
amount reflected in its 1983 income tax return on the ground of prescription.1 That
judgment of the tax court was affirmed by respondent Court of Appeals in its
judgment in CA-G.R. SP
No. 26839.2 The case was then elevated to us in the present petition for review
on certiorari wherein the latter judgment is impugned and sought to be nullified
and/or set aside.
It appears that in a letter dated August 26, 1986, herein private respondent
corporation filed a claim for refund with the Bureau of Internal Revenue (BIR) in the
amount of P19,971,745.00 representing the alleged aggregate of the excess of its
carried-over total quarterly payments over the actual income tax due, plus carried-
over withholding tax payments on government securities and rental income, as
computed in its final income tax return for the calendar year ending December 31,
1985.3
Two days later, or on August 28, 1986, in order to interrupt the running of the
prescriptive period, Citytrust filed a petition with the Court of Tax Appeals, docketed
therein as CTA Case No. 4099, claiming the refund of its income tax overpayments
for the years 1983, 1984 and 1985 in the total amount of P19,971,745.00.4
In the answer filed by the Office of the Solicitor General, for and in behalf of therein
respondent commissioner, it was asserted that the mere averment that Citytrust
incurred a net loss in 1985 does not ipso facto merit a refund; that the amounts of
P6,611,223.00, P1,959,514.00 and P28,238.00 claimed by Citytrust as 1983 income
tax overpayment, taxes withheld on proceeds of government securities investments,
as well as on rental income, respectively, are not properly documented; that
assuming arguendo that petitioner is entitled to refund, the right to claim the same
has prescribed
with respect to income tax payments prior to August 28, 1984, pursuant to Sections
292 and 295 of the National Internal Revenue Code of 1977, as amended, since the
petition was filed only on August 28, 1986.5
On February 20, 1991, the case was submitted for decision based solely on the
pleadings and evidence submitted by herein private respondent Citytrust. Herein
petitioner could not present any evidence by reason of the repeated failure of the Tax
Credit/Refund Division of the BIR to transmit the records of the case, as well as the
investigation report thereon, to the Solicitor General.6
However, on June 24, 1991, herein petitioner filed with the tax court a manifestation
and motion praying for the suspension of the proceedings in the said case on the
ground that the claim of Citytrust for tax refund in the amount of P19,971,745.00 was
already being processed by the Tax Credit/Refund Division of the BIR, and that said
bureau was only awaiting the submission by Citytrust of the required confirmation
receipts which would show whether or not the aforestated amount was actually paid
and remitted to the BIR.7
Citytrust filed an opposition thereto, contending that since the Court of Tax Appeals
already acquired jurisdiction over the case, it could no longer be divested of the
same; and, further, that the proceedings therein could not be suspended by the mere
fact that the claim for refund was being administratively processed, especially where
the case had already been submitted for decision.
It also argued that the BIR had already conducted an audit, citing therefor Exhibits Y,
Y-1, Y-2 and Y-3 adduced in the case, which clearly showed that there was an
overpayment of income taxes and for which a tax credit or refund was due to
Citytrust. The Foregoing exhibits are allegedly conclusive proof of and an admission
by herein petitioner that there had been an overpayment of income taxes.8
The tax court denied the motion to suspend proceedings on the ground that the case
had already been submitted for decision since February 20, 1991.9
Thereafter, said court rendered its decision in the case, the decretal portion of which
declares:
 WHEREFORE, in view of the foregoing, petitioner is entitled to a
refund but only for the overpaid taxes incurred in 1984 and 1985. The
refundable amount as shown in its 1983 income tax return is hereby
denied on the ground of prescription. Respondent is hereby ordered
to grant a refund to petitioner Citytrust Banking Corp. in the amount of
P13,314,506.14 representing the overpaid income taxes for 1984 and
1985, recomputed as follows:
1984 Income tax due P 4,715,533.00
Less: 1984 Quarterly payments P 16,214,599.00*
1984 Tax Credits —
W/T on int. on gov't. sec. 1,921,245.37*
W/T on rental inc. 26,604.30* 18,162,448.67
——————— ———————
Tax Overpayment (13,446,915.67)
Less: FCDU payable 150,252.00
———————
Amount refundable for 1984 P (13,296,663.67)
1985 Income tax due (loss) P — 0 —
Less: W/T on rentals 36,716.47*
———————
Tax Overpayment (36,716.47)*
Less: FCDU payable 18,874.00
———————
Amount Refundable for 1985 P (17,842.47)
* Note:
These credits are smaller than the claimed amount
because only the above figures are well supported by
the various exhibits presented during the hearing.
No pronouncement as to costs.
SO ORDERED.10
The order for refund was based on the following findings of the Court of Tax Appeals:
(1) the fact of withholding has been established by the statements and certificates of
withholding taxes accomplished by herein private respondent's withholding agents,
the authenticity of which were neither disputed nor controverted by herein petitioner;
(2) no evidence was presented which could effectively dispute the correctness of the
income tax return filed by herein respondent corporation and other material facts
stated therein; (3) no deficiency assessment was issued by herein petitioner; and (4)
there was an audit report submitted by the BIR Assessment Branch, recommending
the refund of overpaid taxes for the years concerned (Exhibits Y to Y-3), which
enjoys the presumption of regularity in the performance of official duty.11
A motion for the reconsideration of said decision was initially filed by the Solicitor
General on the sole ground that the statements and certificates of taxes allegedly
withheld are not conclusive evidence of actual payment and remittance of the taxes
withheld to the BIR.12 A supplemental motion for reconsideration was thereafter filed,
wherein it was contended for the first time that herein private respondent had
outstanding unpaid deficiency income taxes. Petitioner alleged that through an inter-
office memorandum of the Tax Credit/Refund Division, dated August 8, 1991, he
came to know only lately that Citytrust had outstanding tax liabilities for 1984 in the
amount of P56,588,740.91 representing deficiency income and business taxes
covered by Demand/Assessment Notice No. FAS-1-84-003291-003296.13
Oppositions to both the basic and supplemental motions for reconsideration were
filed by private respondent Citytrust.14 Thereafter, the Court of Tax Appeals issued a
resolution denying both motions for the reason that Section 52 (b) of the Tax Code,
as implemented by Revenue Regulation
6-85, only requires that the claim for tax credit or refund must show that the income
received was declared as part of the gross income, and that the fact of withholding
was duly established. Moreover, with regard to the argument raised in the
supplemental motion for reconsideration anent the deficiency tax assessment
against herein petitioner, the tax court ruled that since that matter was not raised in
the pleadings, the same cannot be considered, invoking therefor the salutary
purpose of the omnibus motion rule which is to obviate multiplicity of motions and to
discourage dilatory pleadings.15
As indicated at the outset, a petition for review was filed by herein petitioner with
respondent Court of Appeals which in due course promulgated its decision affirming
the judgment of the Court of Tax Appeals. Petitioner eventually elevated the case to
this Court, maintaining that said respondent court erred in affirming the grant of the
claim for refund of Citytrust, considering that, firstly, said private respondent failed to
prove and substantiate its claim for such refund; and, secondly, the bureau's findings
of deficiency income and business tax liabilities against private respondent for the
year 1984 bars such payment.16
After a careful review of the records, we find that under the peculiar circumstances of
this case, the ends of substantial justice and public interest would be better
subserved by the remand of this case to the Court of Tax Appeals for further
proceedings.
It is the sense of this Court that the BIR, represented herein by petitioner
Commissioner of Internal Revenue, was denied its day in court by reason of the
mistakes and/or negligence of its officials and employees. It can readily be gleaned
from the records that when it was herein petitioner's turn to present evidence,
several postponements were sought by its counsel, the Solicitor General, due to the
unavailability of the necessary records which were not transmitted by the Refund
Audit Division of the BIR to said counsel, as well as the investigation report made by
the Banks/Financing and Insurance Division of the said bureau/ despite repeated
requests.17 It was under such a predicament and in deference to the tax court that
ultimately, said records being still unavailable, herein petitioner's counsel was
constrained to submit the case for decision on February 20, 1991 without presenting
any evidence.
For that matter, the BIR officials and/or employees concerned also failed to heed the
order of the Court of Tax Appeals to remand the records to it pursuant to Section 2,
Rule 7 of the Rules of the Court of Tax Appeals which provides that the
Commissioner of Internal Revenue and the Commissioner of Customs shall certify
and forward to the Court of Tax Appeals, within ten days after filing his answer, all
the records of the case in his possession, with the pages duly numbered, and if the
records are in separate folders, then the folders shall also be numbered.
The aforestated impassé came about due to the fact that, despite the filing of the
aforementioned initiatory petition in CTA Case No. 4099 with the Court of Tax
Appeals, the Tax Refund Division of the BIR still continued to act administratively on
the claim for refund previously filed therein, instead of forwarding the records of the
case to the Court of Tax Appeals as ordered.18
It is a long and firmly settled rule of law that the Government is not bound by the
errors committed by its agents.19 In the performance of its governmental functions,
the State cannot be estopped by the neglect of its agent and officers. Although the
Government may generally be estopped through the affirmative acts of public officers
acting within their authority, their neglect or omission of public duties as exemplified
in this case will not and should not produce that effect.
Nowhere is the aforestated rule more true than in the field of taxation.20 It is
axiomatic that the Government cannot and must not be estopped particularly in
matters involving taxes. Taxes are the lifeblood of the nation through which the
government agencies continue to operate and with which the State effects its
functions for the welfare of its constituents.21 The errors of certain administrative
officers should never be allowed to jeopardize the Government's financial
position,22 especially in the case at bar where the amount involves millions of pesos
the collection whereof, if justified, stands to be prejudiced just because of
bureaucratic lethargy.
Further, it is also worth nothing that the Court of Tax Appeals erred in denying
petitioner's supplemental motion for reconsideration alleging bringing to said court's
attention the existence of the deficiency income and business tax assessment
against Citytrust. The fact of such deficiency assessment is intimately related to and
inextricably intertwined with the right of respondent bank to claim for a tax refund for
the same year. To award such refund despite the existence of that deficiency
assessment is an absurdity and a polarity in conceptual effects. Herein private
respondent cannot be entitled to refund and at the same time be liable for a tax
deficiency assessment for the same year.
The grant of a refund is founded on the assumption that the tax return is valid, that is,
the facts stated therein are true and correct. The deficiency assessment, although
not yet final, created a doubt as to and constitutes a challenge against the truth and
accuracy of the facts stated in said return which, by itself and without unquestionable
evidence, cannot be the basis for the grant of the refund.
Section 82, Chapter IX of the National Internal Revenue Code of 1977, which was
the applicable law when the claim of Citytrust was filed, provides that "(w)hen an
assessment is made in case of any list, statement, or return, which in the opinion of
the Commissioner of Internal Revenue was false or fraudulent or contained any
understatement or undervaluation, no tax collected under such assessment shall be
recovered by any suits unless it is proved that the said list, statement, or return was
not false nor fraudulent and did not contain any understatement or undervaluation;
but this provision shall not apply to statements or returns made or to be made in
good faith regarding annual depreciation of oil or gas wells and mines."
Moreover, to grant the refund without determination of the proper assessment and
the tax due would inevitably result in multiplicity of proceedings or suits. If the
deficiency assessment should subsequently be upheld, the Government will be
forced to institute anew a proceeding for the recovery of erroneously refunded taxes
which recourse must be filed within the prescriptive period of ten years after
discovery of the falsity, fraud or omission in the false or fraudulent return
involved.23 This would necessarily require and entail additional efforts and expenses
on the part of the Government, impose a burden on and a drain of government
funds, and impede or delay the collection of much-needed revenue for governmental
operations.
Thus, to avoid multiplicity of suits and unnecessary difficulties or expenses, it is both
logically necessary and legally appropriate that the issue of the deficiency tax
assessment against Citytrust be resolved jointly with its claim for tax refund, to
determine once and for all in a single proceeding the true and correct amount of tax
due or refundable.

In fact, as the Court of Tax Appeals itself has heretofore conceded, 24 it would be
only just and fair that the taxpayer and the Government alike be given equal
opportunities to avail of remedies under the law to defeat each other's claim and to
determine all matters of dispute between them in one single case. It is important to
note that in determining whether or not petitioner is entitled to the refund of the
amount paid, it would necessary to determine how much the Government is entitled
to collect as taxes. This would necessarily include the determination of the correct
liability of the taxpayer and, certainly, a determination of this case would constitute
res judicata on both parties as to all the matters subject thereof or necessarily
involved therein.

The Court cannot end this adjudication without observing that what caused the
Government to lose its case in the tax court may hopefully be ascribed merely to the
ennui or ineptitude of officialdom, and not to syndicated intent or corruption. The
evidential cul-de-sac in which the Solicitor General found himself once again gives
substance to the public perception and suspicion that it is another proverbial tip in
the iceberg of venality in a government bureau which is pejoratively rated over the
years. What is so distressing, aside from the financial losses to the Government, is
the erosion of trust in a vital institution wherein the reputations of so many honest
and dedicated workers are besmirched by the acts or omissions of a few. Hence, the
liberal view we have here taken pro hac vice, which may give some degree of
assurance that this Court will unhesitatingly react to any bane in the government
service, with a replication of such response being likewise expected by the people
from the executive authorities.

WHEREFORE, the judgment of respondent Court of Appeals in CA-G.R. SP No.

26839 is hereby SET ASIDE and the case at bar is REMANDED to the Court of Tax
Appeals for further proceedings and appropriate action, more particularly, the
reception of evidence for petitioner and the corresponding disposition of CTA Case
No. 4099 not otherwise inconsistent with our adjudgment herein.

SO ORDERED.
PEOPLE OF THE PHILIPPINES, petitioner, vs. HONORABLE
SANDIGANBAYAN, MANSUETO V. HONRADA, CEFERINO S. PAREDES,
JR. and GENEROSO S. SANSAET, respondents.
DECISION
REGALADO, J.:
Through the special civil action for certiorari at bar, petitioner seeks the
annulment of the resolution of respondent Sandiganbayan, promulgated on
December 22, 1993, which denied petitioners motion for the discharge of respondent
Generoso S. Sansaet to be utilized as a state witness, and its resolution of March 7,
1994 denying the motion for reconsideration of its preceding disposition.[1]
The records show that during the dates material to this case, respondent
Honrada was the Clerk of Court and Acting Stenographer of the First Municipal
Circuit Trial Court, San Francisco-Bunawan-Rosario in Agusan del Sur. Respondent
Paredes was successively the Provincial Attorney of Agusan del Sur, then Governor
of the same province, and is at present a Congressman. Respondent Sansaet was a
practicing attorney who served as counsel for Paredes in several instances pertinent
to the criminal charges involved in the present recourse.
The same records also represent that sometime in 1976, respondent Paredes
applied for a free patent over Lot No. 3097-A, Pls-67 of the Rosario Public Land
Subdivision Survey. His application was approved and, pursuant to a free patent
granted to him, an original certificate of title was issued in his favor for that lot which
is situated in the poblacion of San Francisco, Agusan del Sur.
However, in 1985, the Director of Lands filed an action[2] for the cancellation of
respondent Paredes patent and certificate of title since the land had been designated
and reserved as a school site in the aforementioned subdivision survey. The trial
court rendered judgment[3] nullifying said patent and title after finding that respondent
Paredes had obtained the same through fraudulent misrepresentations in his
application. Pertinently, respondent Sansaet served as counsel of Paredes in that
civil case.[4]
Consequent to the foregoing judgment of the trial court, upon the subsequent
complaint of the Sangguniang Bayan and the preliminary investigation conducted
thereon, an information for perjury[5] was filed against respondent Paredes in the
Municipal Circuit Trial Court.[6] On November 27, 1985, the Provincial Fiscal was,
however, directed by the Deputy Minister of Justice to move for the dismissal of the
case on the ground inter alia of prescription, hence the proceedings were
terminated.[7] In this criminal case, respondent Paredes was likewise represented by
respondent Sansaet as counsel.
Nonetheless, respondent* Paredes was thereafter haled before the Tanodbayan
for preliminary investigation on the charge that, by using his former position as
Provincial Attorney to influence and induce the Bureau of Lands officials to favorably
act on his application for free patent, he had violated Section 3(a) of Republic Act
No. 3019, as amended. For the third time, respondent Sansaet was Paredes counsel
of record therein.
On August 29, 1988, the Tanodbayan, issued a resolution[8] recommending the
criminal prosecution of respondent Paredes. Atty. Sansaet, as counsel for his
aforenamed co-respondent, moved for reconsideration and, because of its legal
significance in this case, we quote some of his allegations in that motion:
x x x respondent had been charged already by the complainants before the
Municipal Circuit Court of San Francisco, Agusan del Sur, went to jail on detention in
1984 under the same set of factsand the same evidence x x x but said case after
arraignment, was ordered dismissed by the court upon recommendation of the
Department of Justice. Copy of the dismissal order, certificate of arraignment and
the recommendation of the Department of Justice are hereto attached for ready
reference; thus the filing of this case will be a case of double jeopardy for respondent
herein x x x.[9] (Italics supplied.)
A criminal case was subsequently filed with the Sandiganbayan[10] charging
respondent Paredes with a violation of Section 3(a) of Republic Act No. 3019, as
amended.However, a motion to quash filed by the defense was later granted in
respondent courts resolution of August 1, 1991[11] and the case was dismissed on
the ground of prescription.
On January 23, 1990, one Teofilo Gelacio, a taxpayer who had initiated the
perjury and graft charges against respondent Paredes, sent a letter to the
Ombudsman seeking the investigation of the three respondents herein for
falsification of public documents.[12] He claimed that respondent Honrada, in
conspiracy with his herein co-respondents, simulated and certified as true copies
certain documents purporting to be a notice of arraignment, dated July 1, 1985, and
transcripts of stenographic notes supposedly taken during the arraignment of
Paredes on the perjury charge.[13] These falsified documents were annexed to
respondent Paredes motion for reconsideration of the Tanodbayan resolution for the
filing of a graft charge against him, in order to support his contention that the same
would constitute double jeopardy.
In support of his claim, Gelacio attached to his letter a certification that no notice
of arraignment was ever received by the Office of the Provincial Fiscal of Agusan del
Sur in connection with that perjury case; and a certification of Presiding Judge
Ciriaco Ario that said perjury case in his court did not reach the arraignment stage
since action thereon was suspended pending the review of the case by the
Department of Justice.[14]
Respondents filed their respective counter-affidavits, but Sansaet subsequently
discarded and repudiated the submissions he had made in his counter-affidavit. In a
so-called Affidavit of Explanations and Rectifications,[15] respondent Sansaet
revealed that Paredes contrived to have the graft case under preliminary
investigation dismissed on the ground of double jeopardy by making it that the
perjury case had been dismissed by the trial court after he had been arraigned
therein.
For that purpose, the documents which were later filed by respondent Sansaet
in the preliminary investigation were prepared and falsified by his co-respondents in
this case in the house of respondent Paredes. To evade responsibility for his own
participation in the scheme, he claimed that he did so upon the instigation and
inducement of respondent Paredes. This was intended to pave the way for his
discharge as a government witness in the consolidated cases, as in fact a motion
therefor was filed by the prosecution pursuant to their agreement.
Withal, in a resolution[16] dated February 24, 1992, the Ombudsman approved
the filing of falsification charges against all the herein private respondents. The
proposal for the discharge of respondent Sansaet as a state witness was rejected by
the Ombudsman on this evaluative legal position:
x x x Taking his explanation, it is difficult to believe that a lawyer of his stature, in the
absence of deliberate intent to conspire, would be unwittingly induced by another to
commit a crime. As counsel for the accused in those criminal cases, Atty. Sansaet
had control over the case theory and the evidence which the defense was going to
present. Moreover, the testimony or confession of Atty. Sansaet falls under the
mantle of privileged communication between the lawyer and his client which may be
objected to, if presented in the trial.
The Ombudsman refused to reconsider that resolution[17] and, ostensibly to
forestall any further controversy, he decided to file separate informations for
falsification of public documents against each of the herein respondents. Thus, three
criminal cases,[18] each of which named one of the three private respondents here as
the accused therein, were filed in the graft court. However, the same were
consolidated for joint trial in the Second Division of the Sandiganbayan.
As stated at the outset, a motion was filed by the People on July 27, 1993 for the
discharge of respondent Sansaet as a state witness. It was submitted that all the
requisites therefor, as provided in Section 9, Rule 119 of the Rules of Court, were
satisfied insofar as respondent Sansaet was concerned. The basic postulate was
that, except for the eyewitness testimony of respondent Sansaet, there was no other
direct evidence to prove the confabulated falsification of documents by respondents
Honrada and Paredes.
Unfortunately for the prosecution, respondent Sandiganbayan, hewing to the
theory of the attorney-client privilege adverted to by the Ombudsman and invoked by
the two other private respondents in their opposition to the prosecutions motion,
resolved to deny the desired discharge on this ratiocination:
From the evidence adduced, the opposition was able to establish that client and
lawyer relationship existed between Atty. Sansaet and Ceferino Paredes, Jr., before,
during and after the period alleged in the information. In view of such relationship,
the facts surrounding the case, and other confidential matter must have been
disclosed by accused Paredes, as client, to accused Sansaet, as his lawyer in his
professional capacity. Therefore, the testimony of Atty. Sansaet on the facts
surrounding the offense charged in the information is privileged.[19]
Reconsideration of said resolution having been likewise denied,[20] the
controversy was elevated to this Court by the prosecution in an original action for the
issuance of the extraordinary writ of certiorari against respondent Sandiganbayan.
The principal issues on which the resolution of the petition at bar actually turns
are therefore (1) whether or not the projected testimony of respondent Sansaet, as
proposed state witness, is barred by the attorney-client privilege; and (2) whether or
not, as a consequence thereof, he is eligible for discharge to testify as a particeps
criminis.
I
As already stated, respondent Sandiganbayan ruled that due to the lawyer-client
relationship which existed between herein respondents Paredes and Sansaet during
the relevant periods, the facts surrounding the case and other confidential matters
must have been disclosed by respondent Paredes, as client, to respondent Sansaet,
as his lawyer. Accordingly, it found no reason to discuss it further since Atty. Sansaet
cannot be presented as a witness against accused Ceferino S. Paredes, Jr. without
the latters consent.[21]
The Court is of a contrary persuasion. The attorney-client privilege cannot apply
in these cases, as the facts thereof and the actuations of both respondents therein
constitute an exception to the rule. For a clearer understanding of that evidential rule,
we will first sweep aside some distracting mental cobwebs in these cases.
1. It may correctly be assumed that there was a confidential communication
made by Paredes to Sansaet in connection with Criminal Cases Nos. 17791-93 for
falsification before respondent court, and this may reasonably be expected since
Paredes was the accused and Sansaet his counsel therein. Indeed, the fact that
Sansaet was called to witness the preparation of the falsified documents by Paredes
and Honrada was as eloquent a communication, if not more, than verbal statements
being made to him by Paredes as to the fact and purpose of such falsification. It is
significant that the evidentiary rule on this point has always referred to any
communication, without distinction or qualification.[22]
In the American jurisdiction from which our present evidential rule was taken,
there is no particular mode by which a confidential communication shall be made by
a client to his attorney. The privilege is not confined to verbal or written
communications made by the client to his attorney but extends as well to information
communicated by the client to the attorney by other means.[23]
Nor can it be pretended that during the entire process, considering their past
and existing relations as counsel and client and, further, in view of the purpose for
which such falsified documents were prepared, no word at all passed between
Paredes and Sansaet on the subject matter of that criminal act. The clincher for this
conclusion is the undisputed fact that said documents were thereafter filed by
Sansaet in behalf of Paredes as annexes to the motion for reconsideration in the
preliminary investigation of the graft case before the Tanodbayan.[24] Also, the acts
and words of the parties during the period when the documents were being falsified
were necessarily confidential since Paredes would not have invited Sansaet to his
house and allowed him to witness the same except under conditions of secrecy and
confidence.
2. It is postulated that despite such complicity of Sansaet at the instance of
Paredes in the criminal act for which the latter stands charged, a distinction must be
made between confidential communications relating to past crimes already
committed, and future crimes intended to be committed, by the client. Corollarily, it is
admitted that the announced intention of a client to commit a crime is not included
within the confidences which his attorney is bound to respect. Respondent court
appears, however, to believe that in the instant case it is dealing with a past crime,
and that respondent Sansaet is set to testify on alleged criminal acts of respondents
Paredes and Honrada that have already been committed and consummated.
The Court reprobates the last assumption which is flawed by a somewhat
inaccurate basis. It is true that by now, insofar as the falsifications to be testified to in
respondent court are concerned, those crimes were necessarily committed in the
past. But for the application of the attorney-client privilege, however, the period to be
considered is the date when the privileged communication was made by the client to
the attorney in relation to either a crime committed in the past or with respect to a
crime intended to be committed in the future. In other words, if the client seeks his
lawyers advice with respect to a crime that the former has theretofore committed, he
is given the protection of a virtual confessional seal which the attorney-client privilege
declares cannot be broken by the attorney without the clients consent. The same
privileged confidentiality, however, does not attach with regard to a crime which a
client intends to commit thereafter or in the future and for purposes of which he
seeks the lawyers advice.
Statements and communications regarding the commission of a crime already
committed, made by a party who committed it, to an attorney, consulted as such,
are privileged communications. Contrarily, the unbroken stream of judicial dicta is to
the effect that communications between attorney and client having to do with the
clients contemplated criminal acts, or in aid or furtherance thereof, are not covered
by the cloak of privileges ordinarily existing in reference to communications between
attorney and client.[25] (Emphases supplied.)
3. In the present cases, the testimony sought to be elicited from Sansaet as
state witness are the communications made to him by physical acts and/or
accompanying words of Paredes at the time he and Honrada, either with the active
or passive participation of Sansaet, were about to falsify, or in the process of
falsifying, the documents which were later filed in the Tanodbayan by Sansaet and
culminated in the criminal charges now pending in respondent
Sandiganbayan. Clearly, therefore, the confidential communications thus made by
Paredes to Sansaet were for purposes of and in reference to the crime of falsification
which had not yet been committed in the past by Paredes but which he, in
confederacy with his present co-respondents, later committed. Having been made for
purposes of a future offense, those communications are outside the pale of the
attorney-client privilege.
4. Furthermore, Sansaet was himself a conspirator in the commission of that
crime of falsification which he, Paredes and Honrada concocted and foisted upon the
authorities. It is well settled that in order that a communication between a lawyer and
his client may be privileged, it must be for a lawful purpose or in furtherance of a
lawful end. The existence of an unlawful purpose prevents the privilege from
attaching.[26] In fact, it has also been pointed out to the Court that the prosecution of
the honorable relation of attorney and client will not be permitted under the guise of
privilege, and every communication made to an attorney by a client for a criminal
purpose is a conspiracy or attempt at a conspiracy which is not only lawful to divulge,
but which the attorney under certain circumstances may be bound to disclose at
once in the interest of justice.[27]
It is evident, therefore, that it was error for respondent Sandiganbayan to insist
that such unlawful communications intended for an illegal purpose contrived by
conspirators are nonetheless covered by the so-called mantle of privilege. To
prevent a conniving counsel from revealing the genesis of a crime which was later
committed pursuant to a conspiracy, because of the objection thereto of his
conspiring client, would be one of the worst travesties in the rules of evidence and
practice in the noble profession of law.
 II
On the foregoing premises, we now proceed to the consequential inquiry as to
whether respondent Sansaet qualifies, as a particeps criminis, for discharge from the
criminal prosecution in order to testify for the State. Parenthetically, respondent
court, having arrived at a contrary conclusion on the preceding issue, did not pass
upon this second aspect and the relief sought by the prosecution which are now
submitted for our resolution in the petition at bar. We shall, however, first dispose
likewise of some ancillary questions requiring preludial clarification.
1. The fact that respondent Sandiganbayan did not fully pass upon the query as
to whether or not respondent Sansaet was qualified to be a state witness need not
prevent this Court from resolving that issue as prayed for by petitioner. Where the
determinative facts and evidence have been submitted to this Court such that it is in
a position to finally resolve the dispute, it will be in the pursuance of the ends of
justice and the expeditious administration thereof to resolve the case on the merits,
instead of remanding it to the trial court.[28]
2. A reservation is raised over the fact that the three private respondents here
stand charged in three separate informations. It will be recalled that in its resolution
of February 24, 1992, the Ombudsman recommended the filing of criminal charges
for falsification of public documents against all the respondents herein. That
resolution was affirmed but, reportedly in order to obviate further controversy, one
information was filed against each of the three respondents here, resulting in three
informations for the same acts of falsification.
This technicality was, however, sufficiently explained away during the
deliberations in this case by the following discussion thereof by Mr. Justice Davide,
to wit:
Assuming no substantive impediment exists to block Sansaets discharge as state
witness, he can, nevertheless, be discharged even if indicted under a separate
information. I suppose the three cases were consolidated for joint trial since they
were all raffled to the Second Division of the Sandiganbayan. Section 2, Rule XV of
the Revised Rules of the Sandiganbayan allows consolidation in only one Division of
cases arising from the same incident or series of incidents, or involving common
questions of law and fact. Accordingly, for all legal intents and purposes, Sansaet
stood as co-accused and he could be discharged as state witness. It is of no moment
that he was charged separately from his co-accused. While Section 9 of Rule 119 of
the 1985 Rules of Criminal Procedure uses the word jointly, which was absent in the
old provision, the consolidated and joint trial has the effect of making the three
accused co-accused or joint defendants, especially considering that they are
charged for the same offense. In criminal law, persons indicted for the same offense
and tried together are called joint defendants.
As likewise submitted therefor by Mr. Justice Francisco along the same vein,
there having been a consolidation of the three cases, the several actions lost their
separate identities and became a single action in which a single judgment is
rendered, the same as if the different causes of action involved had originally been
joined in a single action.[29]
Indeed, the former provision of the Rules referring to the situation (w)hen two or
more persons are charged with the commission of a certain offense was too broad
and indefinite; hence the word joint was added to indicate the identity of the charge
and the fact that the accused are all together charged therewith substantially in the
same manner in point of commission and time. The word joint means common to two
or more, as involving the united activity of two or more, or done or produced by two
or more working together, or shared by or affecting two or more. [30] Had it been
intended that all the accused should always be indicted in one and the same
information, the Rules could have said so with facility, but it did not so require in
consideration of the circumstances obtaining in the present case and the problems
that may arise from amending the information.After all, the purpose of the Rule can
be achieved by consolidation of the cases as an alternative mode.
2. We have earlier held that Sansaet was a conspirator in the crime of
falsification, and the rule is that since in a conspiracy the act of one is the act of all,
the same penalty shall be imposed on all members of the conspiracy. Now, one of
the requirements for a state witness is that he does not appear to be the most
guilty.[31] not that he must be the least guilty[32] as is so often erroneously framed or
submitted. The query would then be whether an accused who was held guilty by
reason of membership in a conspiracy is eligible to be a state witness.
To be sure, in People vs. Ramirez, et al.[33] we find this obiter:
It appears that Apolonio Bagispas was the real mastermind. It is believable that he
persuaded the others to rob Paterno, not to kill him for a promised fee. Although he
did not actually commit any of the stabbings, it was a mistake to discharge Bagispas
as a state witness. All the perpetrators of the offense, including him, were bound in a
conspiracy that made them equally guilty.
However, prior thereto, in People vs. Roxas, et al.,[34] two conspirators charged
with five others in three separate informations for multiple murder were discharged
and used as state witnesses against their confederates. Subsequent thereto, in
Lugtu, et al. vs. Court of Appeals, et al.,[35] one of the co-conspirators was
discharged from the information charging him and two others with the crime of
estafa. The trial court found that he was not the most guilty as, being a poor and
ignorant man, he was easily convinced by his two co-accused to open the account
with the bank and which led to the commission of the crime.
 On appeal, this Court held that the finding of respondent appellate court that
Lugtu was just as guilty as his co-accused, and should not be discharged as he did
not appear to be not the most guilty, is untenable. In other words, the Court took into
account the gravity or nature of the acts committed by the accused to be discharged
compared to those of his co-accused, and not merely the fact that in law the same or
equal penalty is imposable on all of them.
Eventually, what was just somehow assumed but not explicitly articulated found
expression in People vs. Ocimar, et al.,[36] which we quote in extenso:
Ocimar contends that in the case at bar Bermudez does not satisfy the conditions for
the discharge of a co-accused to become a state witness. He argues that no
accused in a conspiracy can lawfully be discharged and utilized as a state witness,
for not one of them could satisfy the requisite of appearing not to be the most
guilty. Appellant asserts that since accused Bermudez was part of the conspiracy, he
is equally guilty as the others.
We do not agree. First, there is absolute necessity for the testimony of
Bermudez. For, despite the presentation of four (4) other witnesses, none of them
could positively identify the accused except Bermudez who was one of those who
pulled the highway heist which resulted not only in the loss of cash, jewelry and other
valuables, but even the life of Capt. Caeba, Jr. It was in fact the testimony of
Bermudez that clinched the case for the prosecution. Second, without his testimony,
no other direct evidence was available for the prosecution to prove the elements of
the crime.Third, his testimony could be, as indeed it was, substantially corroborated
in its material points as indicated by the trial court in its well-reasoned
decision. Fourth, he does not appear to be the most guilty. As the evidence reveals,
he was only invited to a drinking party without having any prior knowledge of the plot
to stage a highway robbery. But even assuming that he later became part of the
conspiracy, he does not appear to be the most guilty. What the law prohibits is that
the most guilty will be set free while his co-accused who are less guilty will be sent to
jail. And by most guilty we mean the highest degree of culpability in terms of
participation in the commission of the offense and not necessarily the severity of the
penalty imposed. While all the accused may be given the same penalty by reason of
conspiracy, yet one may be considered least guilty if We take into account his
degree of participation in the perpetration of the offense. Fifth, there is no evidence
that he has at any time been convicted of any offense involving moral turpitude.
xxx
Thus, We agree with the observations of the Solicitor General that the rule on the
discharge of an accused to be utilized as state witness clearly looks at his actual and
individual participation in the commission of the crime, which may or may not have
been perpetrated in conspiracy with the other accused. Since Bermudez was not
individually responsible for the killing committed on the occasion of the robbery
except by reason of conspiracy, it cannot be said then that Bermudez appears to be
the most guilty. Hence, his discharge to be a witness for the government is clearly
warranted. (Italics ours.)
The rule of equality in the penalty to be imposed upon conspirators found guilty
of a criminal offense is based on the concurrence of criminal intent in their minds and
translated into concerted physical action although of varying acts or degrees of
depravity. Since the Revised Penal Code is based on the classical school of thought,
it is the identity of the mens rea which is considered the predominant consideration
and, therefore, warrants the imposition of the same penalty on the consequential
theory that the act of one is thereby the act of all.
Also, this is an affair of substantive law which should not be equated with the
procedural rule on the discharge of particeps criminis. This adjective device is based
on other considerations, such as the need for giving immunity to one of them in order
that not all shall escape, and the judicial experience that the candid admission of an
accused regarding his participation is a guaranty that he will testify truthfully. For
those reasons, the Rules provide for certain qualifying criteria which, again, are
based on judicial experience distilled into a judgmental policy.
III
The Court is reasonably convinced, and so holds, that the other requisites for
the discharge of respondent Sansaet as a state witness are present and should have
been favorably appreciated by the Sandiganbayan.
Respondent Sansaet is the only cooperative eyewitness to the actual
commission of the falsification charged in the criminal cases pending before
respondent court, and the prosecution is faced with the formidable task of
establishing the guilt of the two other co-respondents who steadfastly deny the
charge and stoutly protest their innocence. There is thus no other direct evidence
available for the prosecution of the case, hence there is absolute necessity for the
testimony of Sansaet whose discharge is sought precisely for that purpose. Said
respondent has indicated his conformity thereto and has, for the purposes required
by the Rules, detailed the substance of his projected testimony in his Affidavit of
Explanations and Rectifications.
His testimony can be substantially corroborated on its material points by
reputable witnesses, identified in the basic petition with a digest of their prospective
testimonies, as follows: Judge Ciriaco C. Ario, Municipal Circuit Trial Court in San
Francisco, Agusan del Sur; Provincial Prosecutor and Deputized Ombudsman
Prosecutor Claudio A. Nistal; Teofilo Gelacio, private complainant who initiated the these cases by petitioner be allowed and given due course by respondent
criminal cases through his letter-complaint; Alberto Juvilan of the Sangguniang Sandiganbayan.
Bayan of San Fernando, Agusan del Sur, who participated in the resolution asking
SO ORDERED.
their Provincial Governor to file the appropriate case against respondent Paredes,
and Francisco Macalit, who obtained the certification of non-arraignment from Judge
Ario.
On the final requirement of the Rules, it does not appear that respondent
Sansaet has at any time been convicted of any offense involving moral
turpitude. Thus, with the confluence of all the requirements for the discharge of this
respondent, both the Special Prosecutor and the Solicitor General strongly urge and
propose that he be allowed to testify as a state witness.
This Court is not unaware of the doctrinal rule that, on this procedural aspect,
the prosecution may propose but it is for the trial court, in the exercise of its sound
discretion, to determine the merits of the proposal and make the corresponding
disposition. It must be emphasized, however, that such discretion should have been
exercised, and the disposition taken on a holistic view of all the facts and issues
herein discussed, and not merely on the sole issue of the applicability of the
attorney-client privilege.
This change of heart and direction respondent Sandiganbayan eventually
assumed, after the retirement of two members of its Second Division [37]and the
reconstitution thereof. In an inversely anticlimactic Manifestation and
Comment [38] dated June 14, 1995, as required by this Court in its resolution on
December 5, 1994, the chairman and new members thereof [39] declared:

4) That the questioned Resolutions of December 22, 1993 and March 7, 1994 upon
which the Petition for Certiorari filed by the prosecution are based, was penned by
Associate Justice Narciso T. Atienza and concurred in by the undersigned and
Associate Justice Augusto M. Amores;

5) That while the legal issues involved had been already discussed and passed upon
by the Second Division in the aforesaid Resolution, however, after going over the
arguments submitted by the Solicitor-General and re-assessing Our position on the
matter, We respectfully beg leave of the Honorable Supreme Court to manifest that
We are amenable to setting aside the questioned Resolutions and to grant the
prosecutions motion to discharge accused Generoso Sansaet as state witness, upon
authority of the Honorable Supreme Court for the issuance of the proper Resolution
to that effect within fifteen (15) days from notice thereof.

WHEREFORE, the writ of certiorari prayed for is hereby granted SETTING

ASIDE the impugned resolutions and ORDERING that the present reliefs sought in
RUPERTO TAULE, petitioner,
vs.
SECRETARY LUIS T. SANTOS and GOVERNOR LEANDRO
VERCELES, respondents.
Balgos & Perez and Bugaring, Tugonon & Associates Law Offices for petitioner.
Juan G. Atencia for private respondent.
GANCAYCO, J.:
The extent of authority of the Secretary of Local Government over the katipunan ng
mga barangay or the barangay councils is brought to the fore in this case.
On June 18,1989, the Federation of Associations of Barangay Councils (FABC) of
Catanduanes, composed of eleven (11) members, in their capacities as Presidents
of the Association of Barangay Councils in their respective municipalities, convened
in Virac, Catanduanes with six members in attendance for the purpose of holding the
election of its officers.
Present were petitioner Ruperto Taule of San Miguel, Allan Aquino of Viga, Vicente
Avila of Virac, Fidel Jacob of Panganiban, Leo Sales of Caramoran and Manuel
Torres of Baras. The Board of Election Supervisors/Consultants was composed of
Provincial Government Operation Officer (PGOO) Alberto P. Molina, Jr. as Chairman
with Provincial Treasurer Luis A. Manlapaz, Jr. and Provincial Election Supervisor
Arnold Soquerata as members.
When the group decided to hold the election despite the absence of five (5) of its
members, the Provincial Treasurer and the Provincial Election Supervisor walked
out.
The election nevertheless proceeded with PGOO Alberto P. Molina, Jr. as presiding
officer. Chosen as members of the Board of Directors were Taule, Aquino, Avila,
Jacob and Sales.
Thereafter, the following were elected officers of the FABC:
President — Ruperto Taule
Vice-President — Allan Aquino
Secretary — Vicente Avila
Treasurer — Fidel Jacob
Auditor — Leo Sales1
On June 19, 1989, respondent Leandro I. Verceles, Governor of Catanduanes, sent
a letter to respondent Luis T. Santos, the Secretary of Local
Government, * protesting the election of the officers of the FABC and seeking its
nullification in view of several flagrant irregularities in the manner it was conducted.2
In compliance with the order of respondent Secretary, petitioner Ruperto Taule as
President of the FABC, filed his comment on the letter-protest of respondent
Governor denying the alleged irregularities and denouncing said respondent
Governor for meddling or intervening in the election of FABC officers which is a
purely non-partisan affair and at the same time requesting for his appointment as a
member of the Sangguniang Panlalawigan of the province being the duly elected
President of the FABC in Catanduanes.3
On August 4, 1989, respondent Secretary issued a resolution nullifying the election
of the officers of the FABC in Catanduanes held on June 18, 1989 and ordering a
new one to be conducted as early as possible to be presided by the Regional
Director of Region V of the Department of Local Government.4
Petitioner filed a motion for reconsideration of the resolution of August 4, 1989 but it
was denied by respondent Secretary in his resolution of September 5, 1989.5
In the petition for certiorari before Us, petitioner seeks the reversal of the resolutions
of respondent Secretary dated August 4, 1989 and September 5, 1989 for being null
and void.
Petitioner raises the following issues:
1) Whether or not the respondent Secretary has jurisdiction to entertain an election
protest involving the election of the officers of the Federation of Association of
Barangay Councils;
2) Whether or not the respondent Governor has the legal personality to file an
election protest;
3) Assuming that the respondent Secretary has jurisdiction over the election protest,
whether or not he committed grave abuse of discretion amounting to lack of
jurisdiction in nullifying the election;
The Katipunan ng mga Barangay is the organization of all sangguniang barangays in
the following levels: in municipalities to be known as katipunang bayan; in
cities, katipunang panlungsod; in provinces, katipunang panlalawigan; in
regions, katipunang pampook; and on the national level, katipunan ng mga
barangay.6
The Local Government Code provides for the manner in which the katipunan ng mga
barangay at all levels shall be organized:
Sec. 110. Organization. — (1) The katipunan at all levels shall be organized
in the following manner:
(a) The katipunan in each level shall elect a board of directors and a set of
officers. The president of each level shall represent the katipunan concerned
in the next higher level of organization.
(b) The katipunan ng mga barangay shall be composed of the katipunang
pampook, which shall in turn be composed of the presidents of the
katipunang panlalawigan and the katipunang panlungsod. The presidents of
the katipunang bayan in each province shall constitute the katipunang
panlalawigan. The katipunang panlungsod and the katipunang bayan shall be
composed of the punong barangays of cities and municipalities, respectively.
xxx xxx xxx
The respondent Secretary, acting in accordance with the provision of the Local
Government Code empowering him to "promulgate in detail the implementing
circulars and the rules and regulations to carry out the various administrative actions
required for the initial implementation of this Code in such a manner as will ensure
the least disruption of on-going programs and projects7 issued Department of Local
Government Circular No. 89-09 on April 7, 1989,8 to provide the guidelines for the
conduct of the elections of officers of the Katipunan ng mga Barangay at the
municipal, city, provincial, regional and national levels.
It is now the contention of petitioner that neither the constitution nor the law grants
jurisdiction upon the respondent Secretary over election contests involving the
election of officers of the FABC, the katipunan ng mga barangay at the provincial
level. It is petitioner's theory that under Article IX, C, Section 2 of the 1987
Constitution, it is the Commission on Elections which has jurisdiction over all
contests involving elective barangay officials.
On the other hand, it is the opinion of the respondent Secretary that any violation of
the guidelines as set forth in said circular would be a ground for filing a protest and
would vest upon the Department jurisdiction to resolve any protest that may be filed
in relation thereto.
Under Article IX, C, Section 2(2) of the 1987 Constitution, the Commission on
Elections shall exercise "exclusive original jurisdiction over all contests relating to the
elections, returns, and qualifications of all elective regional, provincial, and city
officials, and appellate jurisdiction over all contests involving elective municipal
officials decided by trial courts of general jurisdiction, or involving elective barangay
officials decided by trial courts of limited jurisdiction." The 1987 Constitution
expanded the jurisdiction of the COMELEC by granting it appellate jurisdiction over
all contests involving elective municipal officials decided by trial courts of general
jurisdiction or elective barangay officials decided by trial courts of limited jurisdiction.9
The jurisdiction of the COMELEC over contests involving elective barangay officials
is limited to appellate jurisdiction from decisions of the trial courts. Under the
law,10 the sworn petition contesting the election of a barangay officer shall be filed
with the proper Municipal or Metropolitan Trial Court by any candidate who has duly
filed a certificate of candidacy and has been voted for the same office within 10 days
after the proclamation of the results. A voter may also contest the election of any
barangay officer on the ground of ineligibility or of disloyalty to the Republic of the
Philippines by filing a sworn petition for quo warranto with the Metropolitan or
Municipal Trial Court within 10 days after the proclamation of the results of the
election.11 Only appeals from decisions of inferior courts on election matters as
aforestated may be decided by the COMELEC.
The Court agrees with the Solicitor General that the jurisdiction of the COMELEC is
over popular elections, the elected officials of which are determined through the will
of the electorate. An election is the embodiment of the popular will, the expression of
the sovereign power of the people.12 It involves the choice or selection of candidates
to public office by popular vote.13 Specifically, the term "election," in the context of
the Constitution, may refer to the conduct of the polls, including the listing of voters,
the holding of the electoral campaign, and the casting and counting of the
votes14 which do not characterize the election of officers in the Katipunan ng mga
barangay. "Election contests" would refer to adversary proceedings by which matters
involving the title or claim of title to an elective office, made before or after
proclamation of the winner, is settled whether or not the contestant is claiming the
office in dispute15 and in the case of elections of barangay officials, it is restricted to
proceedings after the proclamation of the winners as no pre-proclamation
controversies are allowed.16
The jurisdiction of the COMELEC does not cover protests over the organizational
set-up of the katipunan ng mga barangay composed of popularly elected punong
barangays as prescribed by law whose officers are voted upon by their respective
members. The COMELEC exercises only appellate jurisdiction over election contests
involving elective barangay officials decided by the Metropolitan or Municipal Trial
Courts which likewise have limited jurisdiction. The authority of the COMELEC over
the katipunan ng mga barangay is limited by law to supervision of the election of the
representative of the katipunan concerned to the sanggunian in a particular level
conducted by their own respective organization.17
However, the Secretary of Local Government is not vested with jurisdiction to
entertain any protest involving the election of officers of the FABC.
There is no question that he is vested with the power to promulgate rules and
regulations as set forth in Section 222 of the Local Government Code.
Likewise, under Book IV, Title XII, Chapter 1, See. 3(2) of the Administrative Code of
1987, ** the respondent Secretary has the power to "establish and prescribe rules,
regulations and other issuances and implementing laws on the general supervision
of local government units and on the promotion of local autonomy and monitor
compliance thereof by said units."
Also, the respondent Secretary's rule making power is provided in See. 7, Chapter II,
Book IV of the Administrative Code, to wit:
(3) Promulgate rules and regulations necessary to carry out department
objectives, policies, functions, plans, programs and projects;
Thus, DLG Circular No. 89-09 was issued by respondent Secretary in pursuance of
his rule-making power conferred by law and which now has the force and effect of
law.18
Now the question that arises is whether or not a violation of said circular vests
jurisdiction upon the respondent Secretary, as claimed by him, to hear a protest filed
in relation thereto and consequently declare an election null and void.
It is a well-settled principle of administrative law that unless expressly empowered,
administrative agencies are bereft of quasi- judicial powers.19 The jurisdiction of
administrative authorities is dependent entirely upon the provisions of the statutes
reposing power in them; they cannot confer it upon themselves.20 Such jurisdiction is
essential to give validity to their determinations.21
There is neither a statutory nor constitutional provision expressly or even by
necessary implication conferring upon the Secretary of Local Government the power
to assume jurisdiction over an election protect involving officers of the katipunan ng
mga barangay. An understanding of the extent of authority of the Secretary over
local governments is therefore necessary if We are to resolve the issue at hand.
Presidential power over local governments is limited by the Constitution to the
exercise of general supervision22 "to ensure that local affairs are administered
according to law."23 The general supervision is exercised by the President through
the Secretary of Local Government.24
In administrative law, supervision means overseeing or the power or authority of an
officer to see that the subordinate officers perform their duties. If the latter fails or
neglects to fulfill them the former may take such action or step as prescribed by law
to make them perform their duties. Control, on the other hand, means the power of
an officer to alter or modify or nullify or set aside what a subordinate officer had done
in the performance of his duties and to substitute the judgment of the former for that
of the latter. The fundamental law permits the Chief Executive to wield no more
authority than that of checking whether said local government or the officers thereof
perform their duties as provided by statutory enactments. Hence, the President
cannot interfere with local governments so long as the same or its officers act within
the scope of their authority.25 Supervisory power, when contrasted with control, is the
power of mere oversight over an inferior body; it does not include any restraining
authority over such body.26
Construing the constitutional limitation on the power of general supervision of the
President over local governments, We hold that respondent Secretary has no
authority to pass upon the validity or regularity of the election of the officers of the
katipunan. To allow respondent Secretary to do so will give him more power than the
law or the Constitution grants. It will in effect give him control over local government
officials for it will permit him to interfere in a purely democratic and non-partisan
activity aimed at strengthening the barangay as the basic component of local
governments so that the ultimate goal of fullest autonomy may be achieved. In fact,
his order that the new elections to be conducted be presided by the Regional
Director is a clear and direct interference by the Department with the political affairs
of the barangays which is not permitted by the limitation of presidential power to
general supervision over local governments.27
Indeed, it is the policy of the state to ensure the autonomy of local
governments.28 This state policy is echoed in the Local Government Code wherein it
is declared that "the State shall guarantee and promote the autonomy of local
government units to ensure their fullest development as self-reliant communities and
make them more effective partners in the pursuit of national development and social
progress."29 To deny the Secretary of Local Government the power to review the
regularity of the elections of officers of the katipunan would be to enhance the
avowed state policy of promoting the autonomy of local governments.
Moreover, although the Department is given the power to prescribe rules, regulations
and other issuances, the Administrative Code limits its authority to merely
"monitoring compliance" by local government units of such issuances.30 To monitor
means "to watch, observe or check.31 This is compatible with the power of
supervision of the Secretary over local governments which as earlier discussed is
limited to checking whether the local government unit concerned or the officers
thereof perform their duties as provided by statutory enactments. Even the Local
Government Code which grants the Secretary power to issue implementing circulars,
rules and regulations is silent as to how these issuances should be enforced. Since
the respondent Secretary exercises only supervision and not control over local
governments, it is truly doubtful if he could enforce compliance with the DLG
Circular.32 Any doubt therefore as to the power of the Secretary to interfere with local
affairs should be resolved in favor of the greater autonomy of the local government.
Thus, the Court holds that in assuming jurisdiction over the election protest filed by
respondent Governor and declaring the election of the officers of the FABC on June
18, 1989 as null and void, the respondent Secretary acted in excess of his
jurisdiction. The respondent Secretary not having the jurisdiction to hear an election
protest involving officers of the FABC, the recourse of the parties is to the ordinary
courts. The Regional Trial Courts have the exclusive original jurisdiction to hear the
protest.33
The provision in DLG Circular No. 89-15 amending DLG Circular No. 89-09 which
states that "whenever the guidelines are not substantially complied with, the election
shall be declared null and void by the Department of Local Government and an
election shall conduct and being invoked by the Solicitor General cannot be applied.
DLG Circular No. 89-15 was issued on July 3, 1989 after the June 18, 1989 elections
of the FABC officers and it is the rule in statutory construction that laws, including
circulars and regulations34 cannot be applied retrospectively.35Moreover, such
provision is null and void for having been issued in excess of the respondent
Secretary's jurisdiction, inasmuch as an administrative authority cannot confer
jurisdiction upon itself.
As regards the second issue raised by petitioner, the Court finds that respondent
Governor has the personality to file the protest. Under Section 205 of the Local
Government Code, the membership of the sangguniang panlalawiganconsists of the
governor, the vice-governor, elective members of the said sanggunian and the
presidents of the katipunang panlalawigan and the kabataang barangay provincial
federation. The governor acts as the presiding officer of the sangguniang
panlalawigan.36
As presiding officer of the sagguniang panlalawigan, the respondent governor has an
interest in the election of the officers of the FABC since its elected president
becomes a member of the assembly. If the president of the FABC assumes his
presidency under questionable circumstances and is allowed to sit in
the sangguniang panlalawiganthe official actions of the sanggunian may be
vulnerable to attacks as to their validity or legality. Hence, respondent governor is a
proper party to question the regularity of the elections of the officers of the FABC.
As to the third issue raised by petitioner, the Court has already ruled that the
respondent Secretary has no jurisdiction to hear the protest and nullify the elections.
Nevertheless, the Court holds that the issue of the validity of the elections should
now be resolved in order to prevent any unnecessary delay that may result from the
commencement of an appropriate action by the parties.
The elections were declared null and void primarily for failure to comply with Section
2.4 of DLG Circular No. 89-09 which provides that "the incumbent FABC President or
the Vice-President shall preside over the reorganizational meeting, there being a
quorum." The rule specifically provides that it is the incumbent FABC President or
Vice-President who shall preside over the meeting. The word "shall" should be taken
in its ordinary signification, i.e., it must be imperative or mandatory and not merely
permissive,37 as the rule is explicit and requires no other interpretation. If it had been
intended that any other official should preside, the rules would have provided so, as
it did in the elections at the town and city levels38 as well as the regional level..39
It is admitted that neither the incumbent FABC President nor the Vice-President
presided over the meeting and elections but Alberto P. Molina, Jr., the Chairman of
the Board of Election Supervisors/Consultants. Thus, there was a clear violation of
the aforesaid mandatory provision. On this ground, the elections should be nullified.
Under Sec. 2.3.2.7 of the same circular it is provided that a Board of Election
Supervisors/Consultants shall be constituted to oversee and/or witness the
canvassing of votes and proclamation of winners. The rules confine the role of the
Board of Election Supervisors/Consultants to merely overseeing and witnessing the
conduct of elections. This is consistent with the provision in the Local Government
Code limiting the authority of the COMELEC to the supervision of the election.40
In case at bar, PGOO Molina, the Chairman of the Board, presided over the
elections. There was direct participation by the Chairman of the Board in the
elections contrary to what is dictated by the rules. Worse, there was no Board of
Election Supervisors to oversee the elections in view of the walk out staged by its
two other members, the Provincial COMELEC Supervisor and the Provincial
Treasurer. The objective of keeping the election free and honest was therefore
compromised.
The Court therefore finds that the election of officers of the FABC held on June 18,
1989 is null and void for failure to comply with the provisions of DLG Circular No. 89-
09.
Meanwhile, pending resolution of this petition, petitioner filed a supplemental petition
alleging that public respondent Local Government Secretary, in his memorandum
dated June 7, 1990, designated Augusto Antonio as temporary representative of the
Federation to the sangguniang panlalawigan of Catanduanes.41 By virtue of this
memorandum, respondent governor swore into said office Augusto Antonio on June
14, 1990.42
The Solicitor General filed his comment on the supplemental petition43 as required by
the resolution of the Court dated September 13,1990.
In his comment, the Solicitor General dismissed the supervening event alleged by
petitioner as something immaterial to the petition. He argues that Antonio's
appointment was merely temporary "until such time that the provincial FABC
president in that province has been elected, appointed and qualified."44 He stresses
that Antonio's appointment was only a remedial measure designed to cope with the
problems brought about by the absence of a representative of the FABC to the
"sanggunian ang panlalawigan."
Sec. 205 (2) of the Local Government Code (B.P. Blg. 337) provides-
(2) The sangguniang panlalawigan shall be composed of the governor, the
vice-governor, elective members of the said sanggunian and the presidents
of the katipunang panlalawigan and the kabataang barangay provincial
federation who shall be appointed by the President of the Philippines.
(Emphasis supplied.)
Batas Pambansa Blg. 51, under Sec. 2 likewise states:
xxx xxx xxx
The sangguniang panlalawigan of each province shall be composed of the
governor as chairman and presiding officer, the vice-governor as presiding
officer pro tempore, the elective sangguniang panlalawigan members, and
the appointive members consisting of the president of the provincial
association of barangay councils, and the president of the provincial
federation of the kabataang barangay. (Emphasis supplied.)
In Ignacio vs. Banate Jr.45 the Court, interpreting similarly worded provisions of Batas
Pambansa Blg. 337 and Batas Pambansa Blg. 51 on the composition of
the sangguniang panlungsod,46 declared as null and void the appointment of private
respondent Leoncio Banate Jr. as member of the Sangguniang Panlungsod of the
City of Roxas representing the katipunang panlungsod ng mga barangay for he
lacked the elegibility and qualification required by law, not being a barangay captain
and for not having been elected president of the association of barangay councils.
The Court held that an unqualified person cannot be appointed a member of the
sanggunian, even in an acting capacity. In Reyes vs. Ferrer,47 the appointment of
Nemesio L. Rasgo Jr. as representative of the youth sector to the sangguniang
panlungsod of Davao City was declared invalid since he was never the president of
the kabataang barangay city federation as required by Sec. 173, Batas Pambansa
Blg. 337.
In the present controversy involving the sangguniang panlalawigan, the law is
likewise explicit. To be appointed by the President of the Philippines to sit in
the sangguniang panlalawigan is the president of the katipunang panlalawigan. The
appointee must meet the qualifications set by law.48 The appointing power is bound
by law to comply with the requirements as to the basic qualifications of the appointee
to the sangguniang panlalawigan. The President of the Philippines or his alter ego,
the Secretary of Local Government, has no authority to appoint anyone who does not
meet the minimum qualification to be the president of the federation of barangay
councils.
Augusto Antonio is not the president of the federation. He is a member of the
federation but he was not even present during the elections despite notice. The
argument that Antonio was appointed as a remedial measure in the exigency of the
service cannot be sustained. Since Antonio does not meet the basic qualification of
being president of the federation, his appointment to the sangguniang
panlalawigan is not justified notwithstanding that such appointment is merely in a
temporary capacity. If the intention of the respondent Secretary was to protect the
interest of the federation in the sanggunian, he should have appointed the incumbent
FABC President in a hold-over capacity. For even under the guidelines, the term of
office of officers of the katipunan at all levels shall be from the date of their election
until their successors shall have been duly elected and qualified, without prejudice to
the terms of their appointments as members of the sanggunian to which they may be
correspondingly appointed.49 Since the election is still under protest such that no
successor of the incumbent has as yet qualified, the respondent Secretary has no
choice but to have the incumbent FABC President sit as member of the sanggunian.
He could even have appointed petitioner since he was elected the president of the
federation but not Antonio. The appointment of Antonio, allegedly the protege of
respondent Governor, gives credence to petitioner's charge of political interference
by respondent Governor in the organization. This should not be allowed. The
barangays should be insulated from any partisan activity or political intervention if
only to give true meaning to local autonomy.

WHEREFORE, the petition is GRANTED in that the resolution of respondent

Secretary dated August 4, 1989 is hereby SET ASIDE for having been issued in
excess of jurisdiction.

The election of the officials of the ABC Federation held on June 18, 1989 is hereby
annulled.1âwphi1 A new election of officers of the federation is hereby ordered to be
conducted immediately in accordance with the governing rules and regulations.

The Supplemental petition is hereby GRANTED. The appointment of Augusto

Antonio as representative to the Sangguniang Panlalawigan in a temporary capacity
is declared null and void.

No costs.

SO ORDERED.
AYOR EULOGIO E. BORRES, Petitioner, vs. HON. MATEO CANONOY, Presiding
Judge, Court of First Instance of Cebu, Branch III, 114th Judicial District, and
SILVERIO PARAGES, Respondents.chanrobles virtual law library
DE CASTRO, * J.:chanrobles virtual law library
In 1968, herein petitioner Eulogio Borres was then the acting mayor of Cebu City,
while private respondent Silverio Parages was a detective in the Cebu Police
Department holding such position in a permanent capacity being a civil service
eligible. He was assigned to the Homicide and General Investigation Section of the
Investigation Branch of said department, particularly to the Missing Persons
Section.chanroblesvirtualawlibrary chanrobles virtual law library
On November 14, 1968, acting on verbal complaints that respondent Parages had
been molesting Chinese businessman in Cebu and the fact that his performance was
not satisfactory, petitioner Borres issued a memorandum ordering the detail of
respondent to his office. 1chanrobles virtual law library
On November 21, 1968, after the said detail order was endorsed by the Chief of
Police, Parages was served with a copy thereof, but he refused to receive it and to
comply with said order. He informed petitioner that he was declining the detail
because the order was illegal 2 and continued to report to his unit. 3 chanrobles
virtual law library
On December 7, 1968, Parages filed a petition for prohibition and injunction in the
court a quo against petitioner. The court, however, did not issue the writ of
preliminary injunction as prayed for, but preferred to hear the evidence before taking
any action. 4chanrobles virtual law library
Meanwhile, in view of respondent's refusal to comply with the detail order, petitioner
charged him with insubordination and neglect of duty in the Police Commission
through the City Board of Investigators. At the same time, he ordered the suspension
of respondent. 5 Respondent thus amended his petition for prohibition and injunction,
with the additional prayer that his suspension be declared
illegal.chanroblesvirtualawlibrary chanrobles virtual law library
After trial on the merits, the trial court rendered its decision dated February 4, 1969
declaring the detail order of November 14, 1968 illegal and therefore null and void,
for being contrary to Section 90 of Republic A.ct No. 3857, otherwise known as
Revised Charter of the City of Cebu and to the constitutional protection of security of
tenure. Consequently, it held the order of suspension dated December 16, 1968
likewise illegal, and ordered the immediate reinstatement of private respondent to the
service and the payment of his back salaries.chanroblesvirtualawlibrary chanrobles
virtual law library
In the order of March 3, 1969, the lower court denied petitioner's motion for
reconsideration of the decision and granted the immediate execution of the judgment
pending appeal upon filing by private respondent of a bond in the sum of P
3,000.00. 6 chanrobles virtual law library
Hence, petitioner filed the present petition for review on certiorari, raising principally
the issue of whether or not it is within the power of the Mayor to order the detail of
private respondent under the Revised Charter of the City of Cebu and the latter's
suspension for refusing to comply with the
order.chanroblesvirtualawlibrary chanrobles virtual law library
It is the contention of herein petitioner that although Section 90 of the Revised
Charter of Cebu, which provides:
Section 90. Power and Duties of the Chief of Police. - There shall be a Chief of
Police with a salary of seven thousand eight hundred pesos per annum who shall
have charge of the police department and everything pertaining thereto including the
organization, administration, discipline, and disposition of, and the transfer of,
members from and to the city police and detective bureau; ... and shall promptly and
faithfully execute an orders of the Mayor, including assignments and transfer of
personnel.
is applicable, it should, however, be read in the light of section 20 of the said law,
which reads:
Section 20. General Powers and Duties of the Mayor. -The Mayor shall have the
following general powers and duties: chanrobles virtual law library
xxx xxx xxxchanrobles virtual law library
e. To see that executive officers and employees of the city are properly discharging
their respective duties. The Mayor may, in the interest of the service, transfer officers
and employees not appointed by the President of the Philippines from one section,
division, service, or department to another section, division, service, or department
without changing the compensation they receive.
Petitioner likewise cites Section 19 of the City Charter which provides: chanrobles
virtual law library
Section 19. Nature of Office; Qualifications, compensations. - The Mayor shall be the
Chief executive of the city and as such shall have immediate control over the
executive functions of the different departments and agencies of the city, subject to
the general supervision of the President as may be provided for by law ... .
and Section 32 which enumerates the departments on which the mayor may
exercise supervision and control and reads:
Section 32. City Departments.- There shall be the following city departments over
which the Mayor shall have direct supervision and con trol any existing law to the
contrary notwithstanding: chanrobles virtual law library
xxx xxx xxxchanrobles virtual law library
(6) Police Department chanrobles virtual law library
xxx xxx xxx
Private respondent, on the other hand, claims that pursuant to Administrative Order
No. 42, Series of 1937, issued by the Civil Service Commission "whenever the Head
of any Department or Dependency of the National Government deems it necessary
to assign any employee outside of the Bureau or office where he is regularly
employed, or to perform within the same Bureau or office a kind of work which is
different from that for which the position he occupies has been provided, the said
Department or Dependency shall issue an order stating the necessity for such
special assignment and a copy of the older shall be furnished to the Budget Office,
but no such special assignment shall be made for more than 30 days." He also
claims that in addition to the foregoing requirement, Memorandum Circular Nos. 45
and 29 of the Civil Service Commission dated September 24, 1964 and July 29,
1965, respectively require that all assignments and reassignments to positions of a
grade or character not contemplated by the examination from the results of which
appointment was made ... should also be submitted to the Commission for prior
approval.chanroblesvirtualawlibrary chanrobles virtual law library
Aside from the aforementioned administrative order and circulars, private respondent
likewise cites Section 684 of the Revised Administrative Code which
provides: chanrobles virtual law library
No person appointed to a position in the classified service shall, without the approval
of the Commission of Civil Service, be assigned, to or employed in a position of a
grade or character not contemplated by the examination from the result of which
appointment was made, unless otherwise provided by law.
Private respondent also disputes the validity of his suspension, claiming that contrary
to Section 16 of Republic Act No. 4864, he was suspended even before the filing of
an administrative complaint against him. Section 16 provides:
Section 16. Suspension of Members of the Police Force or Agency. - When an
administrative charge is filed under oath against any member of the local police
agency, the city mayor or municipal mayor, as the case may be, may suspend the
respondent: Provided, That the charge involves disloyalty to the government,
dishonesty, oppression, grave misconduct, serious irregularities, or serious neglect
of duty, if there are strong reasons to believe that the respondent is probably guilty
thereof which would warrant his suspension or removal from the service. ... .
He further contends that the suspension order is a premature conclusion considering
that the detail order was then already subject of a judicial determination as to its
validity.chanroblesvirtualawlibrary chanrobles virtual law library
Under the foregoing facts and the pertinent laws cited, the power of petitioner, as
Mayor of Cebu City, to detail respondent cannot be denied. Such power to detail
must necessarily be deemed included in his power of control and supervision over
different departments, among which is the Police Department, as expressly so
provided in Sections 19 and 32 of the Revised Charter of
Cebu.chanroblesvirtualawlibrary chanrobles virtual law library
In the case of Mondano vs. Silvosa, 97 Phil. 143, this Court had the occasion to
define "Supervision" and "control", thus: chanrobles virtual law library
Supervision means overseeing of the power or authority of an officer to see that
subordinate officers perform their duties; control on the other hand, means the power
of an officer to alter, modify or nullify or set aside what subordinate officer had done
in the performance of his duties and to substitute the judgment of the former for that
of the latter.
In Rodriguez, et al. vs. Montinola, et al., 94 Phil. 964, 972, We had earlier
said: chanrobles virtual law library
To supervise is to oversee, to have oversight of, to superintend the execution of or
the performance of a thing, or the movements or work of a person, to inspect with
authority: to inspect and direct the work of others. It is to be noted that there are two
senses in which the term "supervision" has been understood. In one it means
superintending alone or the oversight of the performance of a thing without power to
control or to direct. In the other, the inspection is coupled with the right to direct or
even to annul. The decisions of courts in the United States distinguish between
supervision exercised by an official of a department, and supervision for the purpose
of preventing and punishing abuses, discrimination and so forth.
If by the grant of the power of control and supervision, the Mayor can nullify or set
aside what a subordinate had done in the performance of his duties, it is evident that
he can order the detail of private respondent to correct or prevent him from
committing any abuse in the performance of his duties; otherwise, said Sections 19
and 32 of the city charter would just be stale and meaningless
provisions.chanroblesvirtualawlibrary chanrobles virtual law library
The power to detail may also be gleaned from the fact that Section 20 of the same
charter provides that the Mayor has the power to see to it that executive officers and
employees are properly discharging their respective duties. It should be recalled that
the Mayor issued the questioned detail order after he has received reports that
Parages' efficiency is far from satisfactory and had been molesting Chinese
businessmen. Hence, in this desire to gain information of actual facts and closely
look at his activities, he ordered the detail of private respondent to his office. There is
no effective way by which the Mayor can see to it that private respondent properly
discharged his duties.chanroblesvirtualawlibrary chanrobles virtual law library
Furthermore, the same Section 20 authorizes the Mayor, in the interest of the
service, to transfer officers and employees from one section, division, service or
department without changing the compensation. A transfer is a movement of
personnel, more or less permanent in nature, while detail is merely temporary. In the
former, the employee concerned loses position, while in the latter he does not. 7 It
would be illogical to hold that a Mayor can transfer employees from one station to
another which action involves permanency and severance of official connection of
the transferee with his former position, but cannot order the detail of private
respondent which is for a more or less brief period, and is therefore only temporary in
character.chanroblesvirtualawlibrary chanrobles virtual law library
The power of the Mayor in the disposition and transfer of members of the Police
Department is not by any means limited by the provision of Section 90 of the Revised
Charter of the City of Cebu which refers expressly to the powers and duties of the
Chief of Police of Cebu which are thereby enumerated. Among such duties is to
execute promptly and faithfully all orders of the Mayor "including assignments and
transfers of personnel." Section 90 of the said charter, therefore, far from supporting
private respondent's claim of illegality of his detail order issued by the Mayor,
expressly recognizes the latter's powers to make transfer of personnel in the police
department, under the more general grant of power to him under Section 20 of the
Charter of Cebu City which gives him very broad power to make transfer of officers
and employees from one section, division, service or department to another section,
division, service or department without changing the compensation they
receive.chanroblesvirtualawlibrary chanrobles virtual law library
The administrative order and circulars cited by private respondent are totally
inapplicable to the case at bar. Administrative Order No. 42, Series 1937, refers to
Head of any Department or Dependency of the National Government assigning any
employee outside of the bureau or office, where he is regularly employed. Moreover,
they are in the nature of general laws which cannot prevail over the charter of Cebu
which is a special law granting the City Mayor exclusive power of control and
supervision over city employees. Public service and the practical necessities of
efficient and honest government demand immediate action from the Mayor. The
stability and efficiency of the city government may be jeopardized if the Mayor has to
secure prior approval of the Commissioner of Civil Service in order that he may
validly detail and closely supervise an employee. As was aptly said in Pineda vs.
Claudio, 28 SCRA 34, it is the local executive, more than anybody else, who is
primarily responsible for efficient (and honest) governmental administration in the
locality and the effective maintenance of peace and order therein, and is directly
answerable to the people who elected him. Nowhere is this more true than in the
sensitive area of police administration.chanroblesvirtualawlibrary chanrobles virtual
law library
Similarly, the case of Lejano vs. Garcia, 109 Phil. 117. which held that an office
cannot be detailed or transferred even temporarily without his consent has no
application in the instant case. In that case, the transfer of petitioner Lejano already
amounted to removal, for as found by this Court, such transfer was not a mere
temporary assignment but a veritable new appointment which he had declined, and
that respondents had already appointed another to take Lejano's
place.chanroblesvirtualawlibrary chanrobles virtual law library
Likewise not in point is the constitutional provision on security of tenure. A temporary
detail is neither removal, suspension or transfer when made in the interest of public
service 8 and absent a showing of manifest abuse of discretion or that the detail is
due to some improper motive or purpose. 9 As found by the respondent court, the
alleged bad faith of the petitioner in ordering the detail of respondent to his office is
not clear and the doubt should be resolved in his favor. Be that as it may, it should
also be stressed that the constitutional provision on removal or suspension except
for cause as provided by law gives in to the fundamental postulate that a public office
is a public trust. 10chanrobles virtual law library

As regards the order of suspension dated December 16, 1968, We are also
constrained to reject the contention of private respondent that his suspension is
invalid because it was made before the filing of the complaint. For while it is true that
the complaint dated December 16, 1968 was forwarded by the Office of the Mayor
and filed before the Police Commission only in the morning of December 17,
1968, 11the said suspension order was expressly made to take effect only upon
receipt of the same by petitioner. 12 it was not shown when petitioner received said
order of suspension, but in all likelihood it must have been not before the filing of the
complaint.chanroblesvirtualawlibrary chanrobles virtual law library

Neither does the filing of the petition for prohibition and injunction render the
suspension order invalid. The mere filing of the petition did not, ipso facto, make the
detail order illegal, nor did it authorize private respondent to ignore the said order,
the implementation of which had not been restrained by the lower court. Noteworthy
is the fact that the issuance of the detail order carries with it the presumption of
regularity. 13 chanrobles virtual law library

The suspension order was predicated on his obstinate refusal to obey the detail, and
although the charge involved was denominated by petitioner as neglect of duty it
cannot be doubted that such refusal properly constitutes grave misconduct which is
one of the grounds for suspending an officer under Section 16 of the Polcom
Law.chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the decision of the lower court dated February 4, 1969 is hereby set
aside and another one is entered declaring legal and with full force and effect
petitioner's questioned detail and suspension orders. Without
cost.chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.
SECRETARY OF JUSTICE, petitioner,
vs.
HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila,
Branch 25, and MARK B. JIMENEZ, respondents.
MELO, J.:
The individual citizen is but a speck of particle or molecule vis-à-vis the vast and
overwhelming powers of government. His only guarantee against oppression and
tyranny are his fundamental liberties under the Bill of Rights which shield him in
times of need. The Court is now called to decide whether to uphold a citizen's basic
due process rights, or the government's ironclad duties under a treaty. The bugle
sounds and this Court must once again act as the faithful guardian of the
fundamental writ.
The petition at our doorstep is cast against the following factual backdrop:
On January 13, 1977, then President Ferdinand E. Marcos issued Presidential
Decree No. 1069 "Prescribing the Procedure for the Extradition of Persons Who
Have Committed Crimes in a Foreign Country". The Decree is founded on: the
doctrine of incorporation under the Constitution; the mutual concern for the
suppression of crime both in the state where it was committed and the state where
the criminal may have escaped; the extradition treaty with the Republic of Indonesia
and the intention of the Philippines to enter into similar treaties with other interested
countries; and the need for rules to guide the executive department and the courts in
the proper implementation of said treaties.
On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing
the Government of the Republic of the Philippines, signed in Manila the "Extradition
Treaty Between the Government of the Republic of the Philippines and the
Government of the United States of America" (hereinafter referred to as the RP-US
Extradition Treaty). The Senate, by way of Resolution No. 11, expressed its
concurrence in the ratification of said treaty. It also expressed its concurrence in the
Diplomatic Notes correcting Paragraph (5)(a), Article 7 thereof (on the admissibility of
the documents accompanying an extradition request upon certification by the
principal diplomatic or consular officer of the requested state resident in the
Requesting State).
On June 18, 1999, the Department of Justice received from the Department of
Foreign Affairs U.S. Note Verbale No. 0522 containing a request for the extradition of
private respondent Mark Jimenez to the United States. Attached to the Note Verbale
were the Grand Jury Indictment, the warrant of arrest issued by the U.S. District
Court, Southern District of Florida, and other supporting documents for said
extradition. Based on the papers submitted, private respondent appears to be
charged in the United States with violation of the following provisions of the United
States Code (USC):
A) 18 USC 371 (Conspiracy to commit offense or to defraud the United
States; two [2] counts; Maximum Penalty — 5 years on each count);
B) 26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum
Penalty — 5 years on each count);
C) 18 USC 1343 (Fraud by wire, radio, or television; two [2] counts; Maximum
Penalty — 5 years on each count);
D) 18 USC 1001 (False statement or entries; six [6] counts; Maximum
Penalty — 5 years on each count);
E) 2 USC 441f (Election contributions in name of another; thirty-three [33]
counts; Maximum Penalty — less than one year).
(p. 14, Rollo.)
On the same day, petitioner issued Department Order No. 249 designating and
authorizing a panel of attorneys to take charge of and to handle the case pursuant to
Section 5(1) of Presidential Decree No. 1069. Accordingly, the panel began with the
"technical evaluation and assessment" of the extradition request and the documents
in support thereof. The panel found that the "official English translation of some
documents in Spanish were not attached to the request and that there are some
other matters that needed to be addressed" (p. 15, Rollo).
Pending evaluation of the aforestated extradition documents, private respondent,
through counsel, wrote a letter dated July 1, 1999 addressed to petitioner requesting
copies of the official extradition request from the U.S. Government, as well as all
documents and papers submitted therewith; and that he be given ample time to
comment on the request after he shall have received copies of the requested papers.
Private respondent also requested that the proceedings on the matter be held in
abeyance in the meantime.
Later, private respondent requested that preliminary, he be given at least a copy of,
or access to, the request of the United States Government, and after receiving a
copy of the Diplomatic Note, a period of time to amplify on his request.
In response to private respondent's July 1, 1999 letter, petitioner, in a reply-letter
dated July 13, 1999 (but received by private respondent only on August 4, 1999),
denied the foregoing requests for the following reasons:
1. We find it premature to furnish you with copies of the extradition request
and supporting documents from the United States Government, pending
evaluation by this Department of the sufficiency of the extradition documents
submitted in accordance with the provisions of the extradition treaty and our
extradition law. Article 7 of the Extradition Treaty between the Philippines and
the United States enumerates the documentary requirements and establishes
the procedures under which the documents submitted shall be received and
admitted as evidence. Evidentiary requirements under our domestic law are
also set forth in Section 4 of P.D. No. 1069.
Evaluation by this Department of the aforementioned documents is not a
preliminary investigation nor akin to preliminary investigation of criminal
cases. We merely determine whether the procedures and requirements under
the relevant law and treaty have been complied with by the Requesting
Government. The constitutionally guaranteed rights of the accused in all
criminal prosecutions are therefore not available.
It is only after the filing of the petition for extradition when the person sought
to be extradited will be furnished by the court with copies of the petition,
request and extradition documents and this Department will not pose any
objection to a request for ample time to evaluate said documents.
2. The formal request for extradition of the United States contains grand jury
information and documents obtained through grand jury process covered by
strict secrecy rules under United States law. The United States had to secure
orders from the concerned District Courts authorizing the United States to
disclose certain grand jury information to Philippine government and law
enforcement personnel for the purpose of extradition of Mr. Jimenez. Any
further disclosure of the said information is not authorized by the United
States District Courts. In this particular extradition request the United States
Government requested the Philippine Government to prevent unauthorized
disclosure of the subject information. This Department's denial of your
request is consistent with Article 7 of the RP-US Extradition Treaty which
provides that the Philippine Government must represent the interests of the
United States in any proceedings arising out of a request for extradition. The
Department of Justice under P.D. No. 1069 is the counsel of the foreign
governments in all extradition requests.
3. This Department is not in a position to hold in abeyance proceedings in
connection with an extradition request. Article 26 of the Vienna Convention
on the Law of Treaties, to which we are a party provides that "[E]very treaty in
force is binding upon the parties to it and must be performed by them in good
faith". Extradition is a tool of criminal law enforcement and to be effective,
requests for extradition or surrender of accused or convicted persons must be
processed expeditiously.
(pp. 77-78, Rollo.)
Such was the state of affairs when, on August 6, 1999, private respondent filed with
the Regional Trial Court of the National Capital Judicial Region a petition against the
Secretary of Justice, the Secretary of Foreign Affairs, and the Director of the National
Bureau of Investigation, for mandamus (to compel herein petitioner to furnish private
respondent the extradition documents, to give him access thereto, and to afford him
an opportunity to comment on, or oppose, the extradition request, and thereafter to
evaluate the request impartially, fairly and objectively); certiorari(to set aside herein
petitioner's letter dated July 13, 1999); and prohibition (to restrain petitioner from
considering the extradition request and from filing an extradition petition in court; and
to enjoin the Secretary of Foreign Affairs and the Director of the NBI from performing
any act directed to the extradition of private respondent to the United States), with an
application for the issuance of a temporary restraining order and a writ of preliminary
injunction (pp. 104-105, Rollo).
The aforementioned petition was docketed as Civil Case No. 99-94684 and
thereafter raffled to Branch 25 of said regional trial court stationed in Manila which is
presided over by the Honorable Ralph C. Lantion.
After due notice to the parties, the case was heard on August 9, 1999. Petitioner,
who appeared in his own behalf, moved that he be given ample time to file a
memorandum, but the same was denied.
On August 10, 1999, respondent judge issued an order dated the previous day,
disposing:
WHEREFORE, this Court hereby Orders the respondents, namely: the
Secretary of Justice, the Secretary of Foreign Affairs and the Director of the
National Bureau of Investigation, their agents and/or representatives to
maintain the status quo by refraining from committing the acts complained of;
from conducting further proceedings in connection with the request of the
United States Government for the extradition of the petitioner; from filing the
corresponding Petition with a Regional Trial court; and from performing any
 act directed to the extradition of the petitioner to the United States, for a
period of twenty (20) days from service on respondents of this Order,
pursuant to Section 5, Rule 58 of the 1997 Rules of Court.
The hearing as to whether or not this Court shall issue the preliminary
injunction, as agreed upon by the counsels for the parties herein, is set on
August 17, 1999 at 9:00 o'clock in the morning. The respondents are,
likewise, ordered to file their written comment and/or opposition to the
issuance of a Preliminary Injunction on or before said date.
SO ORDERED.
(pp. 110-111, Rollo.)
Forthwith, petitioner initiated the instant proceedings, arguing that:
PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF
JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE TEMPORARY
RESTRAINING ORDER BECAUSE:
I.
BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING
THE ACTS COMPLAINED OF, I.E., TO DESIST FROM REFUSING
PRIVATE RESPONDENT ACCESS TO THE OFFICIAL EXTRADITION
REQUEST AND DOCUMENTS AND FROM DENYING PRIVATE
RESPONDENT AN OPPORTUNITY TO FILE A COMMENT ON, OR
OPPOSITION TO, THE REQUEST, THE MAIN PRAYER FOR A WRIT
OF MANDAMUS IN THE PETITION FOR MANDAMUS, CERTIORARI AND
PROHIBITION WAS, IN EFFECT, GRANTED SO AS TO CONSTITUTE AN
ADJUDICATION ON THE MERITS OF THE MANDAMUS ISSUES;
II.
PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING
LEGAL DUTIES UNDER THE EXTRADITION TREATY AND THE
PHILIPPINE EXTRADITION LAW;
III.
THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS,
ON ITS FACE, FORMALLY AND SUBSTANTIALLY DEFICIENT; AND
IV.
PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS
PROTECTION AND ENFORCEMENT, AND WILL NOT SUFFER ANY
IRREPARABLE INJURY.
(pp. 19-20, Rollo.)
On August 17, 1999, the Court required private respondent to file his comment. Also
issued, as prayed for, was a temporary restraining order (TRO) providing:
NOW, THEREFORE, effective immediately and continuing until further orders
from this Court, You, Respondent Judge Ralph C. Lantion, your agents,
representatives or any person or persons acting in your place or stead are
hereby ORDERED to CEASE and DESIST from enforcing the assailed order
dated August 9, 1999 issued by public respondent in Civil Case No. 99-
94684.
GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme
Court of the Philippines, this 17th day of August 1999.
(pp. 120-121, Rollo.)
The case was heard on oral argument on August 31, 1999, after which the parties,
as directed, filed their respective memoranda.
From the pleadings of the opposing parties, both procedural and substantive issues
are patent. However, a review of these issues as well as the extensive arguments of
both parties, compel us to delineate the focal point raised by the pleadings: During
the evaluation stage of the extradition proceedings, is private respondent entitled to
the two basic due process rights of notice and hearing? An affirmative answer would
necessarily render the proceedings at the trial court, moot and academic (the issues
of which are substantially the same as those before us now), while a negative
resolution would call for the immediate lifting of the TRO issued by this Court dated
August 24, 1999, thus allowing petitioner to fast-track the process leading to the filing
of the extradition petition with the proper regional trial court. Corollarily, in the event
that private respondent is adjudged entitled to basic due process rights at the
evaluation stage of the extradition proceedings, would this entitlement constitute a
breach of the legal commitments and obligations of the Philippine Government under
the RP-US Extradition Treaty? And assuming that the result would indeed be a
breach, is there any conflict between private respondent's basic due process rights
and the provisions of the RP-US Extradition Treaty?
The issues having transcendental importance, the Court has elected to go directly
into the substantive merits of the case, brushing aside peripheral procedural matters
which concern the proceedings in Civil Case No. 99-94684, particularly the propriety
of the filing of the petition therein, and of the issuance of the TRO of August 17, 1999
by the trial court.
To be sure, the issues call for a review of the extradition procedure. The RP-US
Extradition Treaty which was executed only on November 13, 1994, ushered into
force the implementing provisions of Presidential Decree No. 1069, also called as the
Philippine Extradition Law. Section 2(a) thereof defines extradition as "the removal of
an accused from the Philippines with the object of placing him at the disposal of
foreign authorities to enable the requesting state or government to hold him in
connection with any criminal investigation directed against him or the execution of a
penalty imposed on him under the penal or criminal law of the requesting state or
government." The portions of the Decree relevant to the instant case which involves
a charged and not convicted individual, are abstracted as follows:
The Extradition Request
The request is made by the Foreign Diplomat of the Requesting State, addressed to
the Secretary of Foreign Affairs, and shall be accompanied by:
1. The original or an authentic copy of the criminal charge and the warrant of
arrest issued by the authority of the Requesting State having jurisdiction over
the matter, or some other instruments having equivalent legal force;
2. A recital of the acts for which extradition is requested, with the fullest
particulars as to the name and identity of the accused, his whereabouts in the
Philippines, if known, the acts or omissions complained of, and the time and
place of the commission of these acts;
3. The text of the applicable law or a statement of the contents of said law,
and the designation or description of the offense by the law, sufficient for
evaluation of the request; and
4. Such other documents or information in support of the request.
(Sec. 4. Presidential Decree No. 1069.)
Sec. 5 of the Presidential Decree, which sets forth the duty of the Secretary of
Foreign Affairs, pertinently provides
. . . (1) Unless it appears to the Secretary of Foreign Affairs that the request
fails to meet the requirements of this law and the relevant treaty or
convention, he shall forward the request together with the related documents
to the Secretary of Justice, who shall immediately designate and authorize an
attorney in his office to take charge of the case.
The above provision shows only too clearly that the executive authority given the
task of evaluating the sufficiency of the request and the supporting documents is the
Secretary of Foreign Affairs. What then is the coverage of this task?
In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty,
the executive authority must ascertain whether or not the request is supported by:
1. Documents, statements, or other types of information which describe the
identity and probable location of the person sought;
2. A statement of the facts of the offense and the procedural history of the
case;
3. A statement of the provisions of the law describing the essential elements
of the offense for which extradition is requested;
4. A statement of the provisions of law describing the punishment for the
offense;
5. A statement of the provisions of the law describing any time limit on the
prosecution or the execution of punishment for the offense;
6. Documents, statements, or other types of information specified in
paragraph 3 or paragraph 4 of said Article, as applicable.
(Paragraph 2, Article 7, Presidential Decree No. 1069.)
7. Such evidence as, according to the law of the Requested State, would
provide probable cause for his arrest and committal for trial if the offense had
been committed there;
 8. A copy of the warrant or order of arrest issued by a judge or other
competent authority; and
9. A copy of the charging document.
(Paragraph 3, ibid.)
The executive authority (Secretary of Foreign Affairs) must also see to it that the
accompanying documents received in support of the request had been certified by
the principal diplomatic or consular officer of the Requested State resident in the
Requesting State (Embassy Note No. 052 from U. S. Embassy; Embassy Note No.
951309 from the Department of Foreign Affairs).
In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall not
be granted if the executive authority of the Requested State determines that the
request is politically motivated, or that the offense is a military offense which is not
punishable under non-military penal legislation."
The Extradition Petition
Upon a finding made by the Secretary of Foreign Affairs that the extradition request
and its supporting documents are sufficient and complete in form and substance, he
shall deliver the same to the Secretary of Justice, who shall immediately designate
and authorize an attorney in his office to take charge of the case (Paragraph [1],
Section 5, P.D. No. 1069). The lawyer designated shall then file a written petition
with the proper regional trial court of the province or city, with a prayer that the court
take the extradition request under consideration (Paragraph [2], ibid.).
The presiding judge of the regional trial court, upon receipt of the petition for
extradition, shall, as soon as practicable, issue an order summoning the prospective
extraditee to appear and to answer the petition on the day and hour fixed in the
order. The judge may issue a warrant of arrest if it appears that the immediate arrest
and temporary detention of the accused will best serve the ends of justice
(Paragraph [1], Section 6, ibid.), particularly to prevent the flight of the prospective
extraditee.
The Extradition Hearing
The Extradition Law does not specifically indicate whether the extradition proceeding
is criminal, civil, or a special proceeding. Nevertheless, Paragraph [1], Section 9
thereof provides that in the hearing of the extradition petition, the provisions of the
Rules of Court, insofar as practicable and not inconsistent with the summary nature
of the proceedings, shall apply. During the hearing, Section 8 of the Decree provides
that the attorney having charge of the case may, upon application by the Requesting
State, represent the latter throughout the proceedings.
Upon conclusion of the hearing, the court shall render a decision granting the
extradition and giving the reasons therefor upon a showing of the existence of
a prima facie case, or dismiss the petition (Section 10, ibid.). Said decision is
appealable to the Court of Appeals, whose decision shall be final and immediately
executory (Section 12, ibid.). The provisions of the Rules of Court governing appeal
in criminal cases in the Court of Appeals shall apply in the aforementioned appeal,
except for the required 15-day period to file brief (Section 13, ibid.).
The trial court determines whether or not the offense mentioned in the petition is
extraditable based on the application of the dual criminality rule and other conditions
mentioned in Article 2 of the RP-US Extradition Treaty. The trial court also
determines whether or not the offense for which extradition is requested is a political
one (Paragraph [1], Article 3, RP-US Extradition Treaty).1âwphi1.nêt
With the foregoing abstract of the extradition proceedings as backdrop, the following
query presents itself: What is the nature of the role of the Department of Justice at
the evaluation stage of the extradition proceedings?
A strict observance of the Extradition Law indicates that the only duty of the
Secretary of Justice is to file the extradition petition after the request and all the
supporting papers are forwarded to him by the Secretary of Foreign Affairs. It is the
latter official who is authorized to evaluate the extradition papers, to assure their
sufficiency, and under Paragraph [3], Article 3 of the Treaty, to determine whether or
not the request is politically motivated, or that the offense is a military offense which
is not punishable under non-military penal legislation. Ipso facto, as expressly
provided in Paragraph [1], Section 5 of the Extradition Law, the Secretary of Justice
has the ministerial duty of filing the extradition papers.
However, looking at the factual milieu of the case before us, it would appear that
there was failure to abide by the provisions of Presidential Decree No. 1069. For
while it is true that the extradition request was delivered to the Department of Foreign
Affairs on June 17, 1999, the following day or less than 24 hours later, the
Department of Justice received the request, apparently without the Department of
Foreign Affairs discharging its duty of thoroughly evaluating the same and its
accompanying documents. The statement of an assistant secretary at the
Department of Foreign Affairs that his Department, in this regard, is merely acting as
a post office, for which reason he simply forwarded the request to the Department of
Justice, indicates the magnitude of the error of the Department of Foreign Affairs in
taking lightly its responsibilities. Thereafter, the Department of Justice took it upon
itself to determine the completeness of the documents and to evaluate the same to
find out whether they comply with the requirements laid down in the Extradition Law
and the RP-US Extradition Treaty. Petitioner ratiocinates in this connection that
although the Department of Justice had no obligation to evaluate the extradition
documents, the Department also had to go over them so as to be able to prepare an
extradition petition (tsn, August 31, 1999, pp. 24-25). Notably, it was also at this
stage where private respondent insisted on the following; (1) the right to be furnished
the request and the supporting papers; (2) the right to be heard which consists in
having a reasonable period of time to oppose the request, and to present evidence in
support of the opposition; and (3) that the evaluation proceedings be held in
abeyance pending the filing of private respondent's opposition to the request.
The two Departments seem to have misread the scope of their duties and authority,
one abdicating its powers and the other enlarging its commission. The Department of
Foreign Affairs, moreover, has, through the Solicitor General, filed a manifestation
that it is adopting the instant petition as its own, indirectly conveying the message
that if it were to evaluate the extradition request, it would not allow private
respondent to participate in the process of evaluation.
Plainly then, the record cannot support the presumption of regularity that the
Department of Foreign Affairs thoroughly reviewed the extradition request and
supporting documents and that it arrived at a well-founded judgment that the request
and its annexed documents satisfy the requirements of law. The Secretary of Justice,
eminent as he is in the field of law, could not privately review the papers all by
himself. He had to officially constitute a panel of attorneys. How then could the DFA
Secretary or his undersecretary, in less than one day, make the more authoritative
determination?
The evaluation process, just like the extradition proceedings proper, belongs to a
class by itself. It is sui generis. It is not a criminal investigation, but it is also
erroneous to say that it is purely an exercise of ministerial functions. At such stage,
the executive authority has the power: (a) to make a technical assessment of the
completeness and sufficiency of the extradition papers; (b) to outrightly deny the
request if on its face and on the face of the supporting documents the crimes
indicated are not extraditable; and (c) to make a determination whether or not the
request is politically motivated, or that the offense is a military one which is not
punishable under non-military penal legislation (tsn, August 31, 1999, pp. 28-29;
Article 2 & and Paragraph [3], Article 3, RP-US Extradition Treaty). Hence, said
process may be characterized as an investigative or inquisitorial process in contrast
to a proceeding conducted in the exercise of an administrative body's quasi-judicial
power.
In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation
of evidence; (b) determining facts based upon the evidence presented; and (c)
rendering an order or decision supported by the facts proved (De Leon,
Administrative Law: Text and Cases, 1993 ed., p. 198, citing Morgan vs. United
States, 304 U.S. 1). Inquisitorial power, which is also known as examining or
investigatory power, is one or the determinative powers of an administrative body
which better enables it to exercise its quasi-judicial authority (Cruz, Phil.
Administrative Law, 1996 ed., p. 26). This power allows the administrative body to
inspect the records and premises, and investigate the activities, of persons or entities
coming under its jurisdiction (Ibid., p. 27), or to require disclosure of information by
means or accounts, records, reports, testimony of witnesses, production of
documents, or otherwise (De Leon, op. cit., p. 64).
The power of investigation consists in gathering, organizing, and analyzing evidence,
which is a useful aid or tool in an administrative agency's performance of its rule-
making or quasi-judicial functions. Notably, investigation is indispensable to
prosecution.
In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to
rule on the functions of an investigatory body with the sole power of investigation. It
does not exercise judicial functions and its power is limited to investigating the facts
and making findings in respect thereto. The Court laid down the test of determining
whether an administrative body is exercising judicial functions or merely investigatory
functions: Adjudication signifies the exercise of power and authority to adjudicate
upon the rights and obligations of the parties before it. Hence, if the only purpose for
investigation is to evaluate evidence submitted before it based on the facts and
circumstances presented to it, and if the agency is not authorized to make a final
pronouncement affecting the parties, then there is an absence of judicial discretion
and judgment.
The above description in Ruperto applies to an administrative body authorized to
evaluate extradition documents. The body has no power to adjudicate in regard to
the rights and obligations of both the Requesting State and the prospective
extraditee. Its only power is to determine whether the papers comply with the
requirements of the law and the treaty and, therefore, sufficient to be the basis of an
extradition petition. Such finding is thus merely initial and not final. The body has no
power to determine whether or not the extradition should be effected. That is the role
of the court. The body's power is limited to an initial finding of whether or not the
extradition petition can be filed in court.
It is to be noted, however, that in contrast to ordinary investigations, the evaluation
procedure is characterized by certain peculiarities. Primarily, it sets into motion the
wheels of the extradition process. Ultimately, it may result in the deprivation of liberty
of the prospective extraditee. This deprivation can be effected at two stages: First,
the provisional arrest of the prospective extraditee pending the submission of the
request. This is so because the Treaty provides that in case of urgency, a contracting
party may request the provisional arrest of the person sought pending presentation
of the request (Paragraph [1], Article 9, RP-US Extradition Treaty), but he shall be
automatically discharged after 60 days if no request is submitted (Paragraph 4).
Presidential Decree No. 1069 provides for a shorter period of 20 days after which the
arrested person could be discharged (Section 20[d]). Logically, although the
Extradition Law is silent on this respect, the provisions only mean that once a
request is forwarded to the Requested State, the prospective extraditee may be
continuously detained, or if not, subsequently rearrested (Paragraph [5], Article 9,
RP-US Extradition Treaty), for he will only be discharged if no request is submitted.
Practically, the purpose of this detention is to prevent his possible flight from the
Requested State. Second, the temporary arrest of the prospective extraditee during
the pendency of the extradition petition in court (Section 6, Presidential Decree No.
1069).
Clearly, there is an impending threat to a prospective extraditee's liberty as early as
during the evaluation stage. It is not only an imagined threat to his liberty, but a very
imminent one.
Because of these possible consequences, we conclude that the evaluation process
is akin to an administrative agency conducting an investigative proceeding, the
consequences of which are essentially criminal since such technical assessment
sets off or commences the procedure for, and ultimately, the deprivation of liberty of
a prospective extraditee. As described by petitioner himself, this is a "tool" for
criminal law enforcement (p. 78, Rollo). In essence, therefore, the evaluation process
partakes of the nature of a criminal investigation. In a number of cases, we had
occasion to make available to a respondent in an administrative case or investigation
certain constitutional rights that are ordinarily available only in criminal prosecutions.
Further, as pointed out by Mr. Justice Mendoza during the oral arguments, there are
rights formerly available only at the trial stage that had been advanced to an earlier
stage in the proceedings, such as the right to counsel and the right against self-
incrimination (tsn, August 31, 1999, p. 135; Escobedo vs. Illinois, 378 U.S. 478;
Gideon vs. Wainwright, 372 U.S. 335; Miranda vs. Arizona, 384 U.S. 436).
In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the
right against self-incrimination under Section 17, Article III of the 1987 Constitution
which is ordinarily available only in criminal prosecutions, extends to administrative
proceedings which possess a criminal or penal aspect, such as an administrative
investigation of a licensed physician who is charged with immorality, which could
result in his loss of the privilege to practice medicine if found guilty. The Court, citing
the earlier case of Cabal vs. Kapunan (6 SCRA 1059 [1962]), pointed out that the
revocation of one's license as a medical practitioner, is an even greater deprivation
than forfeiture of property.
Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth
against a respondent which was filed under Republic Act No. 1379, or the Anti-Graft
Law. Again, we therein ruled that since the investigation may result in forfeiture of
property, the administrative proceedings are deemed criminal or penal, and such
forfeiture partakes the nature of a penalty. There is also the earlier case of Almeda,
Sr. vs. Perez (5 SCRA 970 [1962]), where the Court, citing American jurisprudence,
laid down the test to determine whether a proceeding is civil or criminal: If the
proceeding is under a statute such that if an indictment is presented the forfeiture
can be included in the criminal case, such proceeding is criminal in nature, although
it may be civil in form; and where it must be gathered from the statute that the action
is meant to be criminal in its nature, it cannot be considered as civil. If, however, the
proceeding does not involve the conviction of the wrongdoer for the offense charged,
the proceeding is civil in nature.
The cases mentioned above refer to an impending threat of deprivation of one's
property or property right. No less is this true, but even more so in the case before
us, involving as it does the possible deprivation of liberty, which, based on the
hierarchy of constitutionally protected rights, is placed second only to life itself and
enjoys precedence over property, for while forfeited property can be returned or
replaced, the time spent in incarceration is irretrievable and beyond recompense.
By comparison, a favorable action in an extradition request exposes a person to
eventual extradition to a foreign country, thus saliently exhibiting the criminal or penal
aspect of the process. In this sense, the evaluation procedure is akin to a preliminary
investigation since both procedures may have the same result — the arrest and
imprisonment of the respondent or the person charged. Similar to the evaluation
stage of extradition proceedings, a preliminary investigation, which may result in the
filing of an information against the respondent, can possibly lead to his arrest, and to
the deprivation of his liberty.
Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8,
petitioner's Memorandum) that the extradition treaty is neither a piece of criminal
legislation nor a criminal procedural statute is not well-taken. Wright is not authority
for petitioner's conclusion that his preliminary processing is not akin to a preliminary
investigation. The characterization of a treaty in Wright was in reference to the
applicability of the prohibition against an ex post factolaw. It had nothing to do with
the denial of the right to notice, information, and hearing.
As early as 1884, the United States Supreme Court ruled that "any legal proceeding
enforced by public authority, whether sanctioned by age or custom, or newly devised
in the discretion of the legislative power, in furtherance of the general public good,
which regards and preserved these principles of liberty and justice, must be held to
be due process of law" (Hurtado vs. California, 110 U.S. 516). Compliance with due
process requirements cannot be deemed non-compliance with treaty commitments.
The United States and the Philippines share a mutual concern about the suppression
and punishment of crime in their respective jurisdictions. At the same time, both
States accord common due process protection to their respective citizens.
The due process clauses in the American and Philippine Constitutions are not only
worded in exactly identical language and terminology, but more importantly, they are
alike in what their respective Supreme Courts have expounded as the spirit with
which the provisions are informed and impressed, the elasticity in their interpretation,
their dynamic and resilient character which make them capable of meeting every
modern problem, and their having been designed from earliest time to the present to
meet the exigencies of an undefined and expanding future. The requirements of due
process are interpreted in both the United States and the Philippines as not denying
to the law the capacity for progress and improvement. Toward this effect and in order
to avoid the confines of a legal straitjacket, the courts instead prefer to have the
meaning of the due process clause "gradually ascertained by the process of
inclusion and exclusion in the course of the decisions of cases as they arise"
(Twining vs. New Jersey, 211 U.S. 78). Capsulized, it refers to "the embodiment of
the sporting idea of fair play" (Ermita-Malate Hotel and Motel Owner's Association vs.
City Mayor of Manila, 20 SCRA 849 [1967]). It relates to certain immutable principles
of justice which inhere in the very idea of free government (Holden vs. Hardy, 169
U.S. 366).
Due process is comprised of two components — substantive due process which
requires the intrinsic validity of the law in interfering with the rights of the person to
his life, liberty, or property, and procedural due process which consists of the two
basic rights of notice and hearing, as well as the guarantee of being heard by an
impartial and competent tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-106).
True to the mandate of the due process clause, the basic rights of notice and hearing
pervade not only in criminal and civil proceedings, but in administrative proceedings
as well. Non-observance of these rights will invalidate the proceedings. Individuals
are entitled to be notified of any pending case affecting their interests, and upon
notice, they may claim the right to appear therein and present their side and to refute
the position of the opposing parties (Cruz, Phil. Administrative Law, 1996 ed., p. 64).
In a preliminary investigation which is an administrative investigatory proceeding,
Section 3, Rule 112 of the Rules of Court guarantees the respondent's basic due
process rights, granting him the right to be furnished a copy of the complaint, the
affidavits, and other supporting documents, and the right to submit counter-affidavits
and other supporting documents within ten days from receipt thereof. Moreover, the
respondent shall have the right to examine all other evidence submitted by the
complainant.
These twin rights may, however, be considered dispensable in certain instances,
such as:
1. In proceeding where there is an urgent need for immediate action, like the
summary abatement of a nuisance per se (Article 704, Civil Code), the
preventive suspension of a public servant facing administrative charges
(Section 63, Local Government Code, B.P. Blg. 337), the padlocking of filthy
restaurants or theaters showing obscene movies or like establishments which
are immediate threats to public health and decency, and the cancellation of a
passport of a person sought for criminal prosecution;
2. Where there is tentativeness of administrative action, that is, where the
respondent is not precluded from enjoying the right to notice and hearing at a
later time without prejudice to the person affected, such as the summary
distraint and levy of the property of a delinquent taxpayer, and the
replacement of a temporary appointee; and
3. Where the twin rights have previously been offered but the right to exercise
them had not been claimed.
Applying the above principles to the case at bar, the query may be asked: Does the
evaluation stage of the extradition proceedings fall under any of the described
situations mentioned above?
Let us take a brief look at the nature of American extradition proceedings which are
quite noteworthy considering that the subject treaty involves the U.S. Government.
American jurisprudence distinguishes between interstate rendition or extradition
which is based on the Extradition Clause in the U.S. Constitution (Art. IV, §2 cl 2),
and international extradition proceedings. In interstate rendition or extradition, the
governor of the asylum state has the duty to deliver the fugitive to the demanding
state. The Extradition Clause and the implementing statute are given a liberal
construction to carry out their manifest purpose, which is to effect the return as
swiftly as possible of persons for trial to the state in which they have been charged
with crime (31A Am Jur 2d 754-755). In order to achieve extradition of an alleged
fugitive, the requisition papers or the demand must be in proper form, and all the
elements or jurisdictional facts essential to the extradition must appear on the face of
the papers, such as the allegation that the person demanded was in the demanding
state at the time the offense charged was committed, and that the person demanded
is charged with the commission of the crime or that prosecution has been begun in
the demanding state before some court or magistrate (35 C.J.S. 406-407). The
extradition documents are then filed with the governor of the asylum state, and must
contain such papers and documents prescribed by statute, which essentially include
a copy of the instrument charging the person demanded with a crime, such as an
indictment or an affidavit made before a magistrate. Statutory requirements with
respect to said charging instrument or papers are mandatory since said papers are
necessary in order to confer jurisdiction on the government of the asylum state to
effect extradition (35 C.J.S. 408-410). A statutory provision requiring duplicate copies
of the indictment, information, affidavit, or judgment of conviction or sentence and
other instruments accompanying the demand or requisitions be furnished and
delivered to the fugitive or his attorney is directory. However, the right being such a
basic one has been held to be a right mandatory on demand (Ibid., p. 410, citing Ex
parte Moore, 256 S.W. 2d 103, 158 Tex. Cr. 407 and Ex parte Tucker, Cr., 324,
S.W.2d 853).
In international proceedings, extradition treaties generally provide for the
presentation to the executive authority of the Requested State of a requisition or
demand for the return of the alleged offender, and the designation of the particular
officer having authority to act in behalf of the demanding nation (31A Am Jur 2d 815).
In petitioner's memorandum filed on September 15, 1999, he attached thereto a
letter dated September 13, 1999 from the Criminal Division of the U.S. Department of
Justice, summarizing the U.S. extradition procedures and principles, which are
basically governed by a combination of treaties (with special reference to the RP-US
Extradition Treaty), federal statutes, and judicial decisions, to wit:
1. All requests for extradition are transmitted through the diplomatic channel.
In urgent cases, requests for the provincial arrest of an individual may be
made directly by the Philippine Department of Justice to the U.S. Department
of Justice, and vice-versa. In the event of a provisional arrest, a formal
request for extradition is transmitted subsequently through the diplomatic
channel.
2. The Department of State forwards the incoming Philippine extradition
request to the Department of Justice. Before doing so, the Department of
State prepares a declaration confirming that a formal request has been made,
that the treaty is in full force and effect, that under Article 17 thereof the
parties provide reciprocal legal representation in extradition proceedings, that
the offenses are covered as extraditable offenses under Article 2 thereof, and
that the documents have been authenticated in accordance with the federal
statute that ensures admissibility at any subsequent extradition hearing.
3. A judge or magistrate judge is authorized to issue a warrant for the arrest
of the prospective extraditee (18 U.S.C. §3184). Said judge or magistrate is
authorized to hold a hearing to consider the evidence offered in support of the
extradition request (Ibid.)
4. At the hearing, the court must determine whether the person arrested is
extraditable to the foreign country. The court must also determine that (a) it
has jurisdiction over the defendant and jurisdiction to conduct the hearing; (b)
the defendant is being sought for offenses for which the applicable treaty
permits extradition; and (c) there is probable cause to believe that the
defendant is the person sought and that he committed the offenses charged
(Ibid.)
5. The judge or magistrate judge is vested with jurisdiction to certify
extraditability after having received a "complaint made under oath, charging
any person found within his jurisdiction" with having committed any of the
crimes provided for by the governing treaty in the country requesting
extradition (Ibid.) [In this regard, it is noted that a long line of American
decisions pronounce that international extradition proceedings partake of the
character of a preliminary examination before a committing magistrate, rather
than a trial of the guilt or innocence of the alleged fugitive (31A Am Jur 2d
826).]
6. If the court decides that the elements necessary for extradition are present,
it incorporates its determinations in factual findings and conclusions of law
and certifies the person's extraditability. The court then forwards this
certification of extraditability to the Department of State for disposition by the
Secretary of State. The ultimate decision whether to surrender an individual
rests with the Secretary of State (18 U.S.C. §3186).
7. The subject of an extradition request may not litigate questions concerning
the motives of the requesting government in seeking his extradition.
However, a person facing extradition may present whatever information he
 deems relevant to the Secretary of State, who makes the final determination
whether to surrender an individual to the foreign government concerned.
From the foregoing, it may be observed that in the United States, extradition begins
and ends with one entity — the Department of State — which has the power to
evaluate the request and the extradition documents in the beginning, and, in the
person of the Secretary of State, the power to act or not to act on the court's
determination of extraditability. In the Philippine setting, it is the Department of
Foreign Affairs which should make the initial evaluation of the request, and having
satisfied itself on the points earlier mentioned (see pp. 10-12), then forwards the
request to the Department of Justice for the preparation and filing of the petition for
extradition. Sadly, however, the Department of Foreign Affairs, in the instant case,
perfunctorily turned over the request to the Department of Justice which has taken
over the task of evaluating the request as well as thereafter, if so warranted,
preparing, filing, and prosecuting the petition for extradition.
Private respondent asks what prejudice will be caused to the U.S. Government
should the person sought to be extradited be given due process rights by the
Philippines in the evaluation stage. He emphasizes that petitioner's primary concern
is the possible delay in the evaluation process.
We agree with private respondent's citation of an American Supreme Court ruling:
The establishment of prompt efficacious procedures to achieve legitimate
state ends is a proper state interest worthy of cognizance in constitutional
adjudication. But the Constitution recognizes higher values than speed and
efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the
Due Process Clause, in particular, that they were designed to protect the
fragile values of a vulnerable citizenry from the overbearing concern for
efficiency and efficacy that may characterize praiseworthy government
officials no less, and perhaps more, than mediocre ones.
(Stanley vs. Illinois, 404 U.S. 645, 656)
The United States, no doubt, shares the same interest as the Philippine Government
that no right — that of liberty — secured not only by the Bills of Rights of the
Philippines Constitution but of the United States as well, is sacrificed at the altar of
expediency.
(pp. 40-41, Private Respondent's Memorandum.)
In the Philippine context, this Court's ruling is invoked:
One of the basic principles of the democratic system is that where the rights
of the individual are concerned, the end does not justify the means. It is not
enough that there be a valid objective; it is also necessary that the means
employed to pursue it be in keeping with the Constitution. Mere expediency
will not excuse constitutional shortcuts. There is no question that not even the
strongest moral conviction or the most urgent public need, subject only to a
few notable exceptions, will excuse the bypassing of an individual's rights. It
is no exaggeration to say that a person invoking a right guaranteed under
Article III of the Constitution is a majority of one even as against the rest of
the nation who would deny him that right (Association of Small Landowners in
the Philippines, Inc. vs. Secretary of Agrarian Reform, 175 SCRA 343, 375-
376 [1989]).
There can be no dispute over petitioner's argument that extradition is a tool of
criminal law enforcement. To be effective, requests for extradition or the surrender of
accused or convicted persons must be processed expeditiously. Nevertheless,
accelerated or fast-tracked proceedings and adherence to fair procedures are,
however, not always incompatible. They do not always clash in discord. Summary
does not mean precipitous haste. It does not carry a disregard of the basic principles
inherent in "ordered liberty."
Is there really an urgent need for immediate action at the evaluation stage? At that
point, there is no extraditee yet in the strict sense of the word. Extradition may or
may not occur. In interstate extradition, the governor of the asylum state may not, in
the absence of mandatory statute, be compelled to act favorably (37 C.J.S. 387)
since after a close evaluation of the extradition papers, he may hold that federal and
statutory requirements, which are significantly jurisdictional, have not been met
(31 Am Jur 2d 819). Similarly, under an extradition treaty, the executive authority of
the requested state has the power to deny the behest from the requesting state.
Accordingly, if after a careful examination of the extradition documents the Secretary
of Foreign Affairs finds that the request fails to meet the requirements of the law and
the treaty, he shall not forward the request to the Department of Justice for the filing
of the extradition petition since non-compliance with the aforesaid requirements will
not vest our government with jurisdiction to effect the extradition.
In this light, it should be observed that the Department of Justice exerted notable
efforts in assuring compliance with the requirements of the law and the treaty since it
even informed the U.S. Government of certain problems in the extradition papers
(such as those that are in Spanish and without the official English translation, and
those that are not properly authenticated). In fact, petitioner even admits that
consultation meetings are still supposed to take place between the lawyers in his
Department and those from the U.S. Justice Department. With the meticulous nature
of the evaluation, which cannot just be completed in an abbreviated period of time
due to its intricacies, how then can we say that it is a proceeding that urgently
necessitates immediate and prompt action where notice and hearing can be
dispensed with?
Worthy of inquiry is the issue of whether or not there is tentativeness of
administrative action. Is private respondent precluded from enjoying the right to
notice and hearing at a later time without prejudice to him? Here lies the peculiarity
and deviant characteristic of the evaluation procedure. On one hand there is yet no
extraditee, but ironically on the other, it results in an administrative if adverse to the
person involved, may cause his immediate incarceration. The grant of the request
shall lead to the filing of the extradition petition in court. The "accused" (as Section
2[c] of Presidential Decree No. 1069 calls him), faces the threat of arrest, not only
after the extradition petition is filed in court, but even during the evaluation
proceeding itself by virtue of the provisional arrest allowed under the treaty and the
implementing law. The prejudice to the "accused" is thus blatant and manifest.
Plainly, the notice and hearing requirements of administrative due process cannot be
dispensed with and shelved aside.
Apart from the due process clause of the Constitution, private respondent likewise
invokes Section 7 of Article III which reads:
Sec. 7. The right of the people to information on matters of public concern
shall be recognized. Access to official records, and to documents and papers
pertaining to official acts, transactions, or decisions, as well as to government
research data used as basis for policy development, shall be afforded the
citizen, subject to such limitations as may be provided by law.
The above provision guarantees political rights which are available to citizens of the
Philippines, namely: (1) the right to information on matters of public concern, and (2)
the corollary right of access to official records documents. The general right
guaranteed by said provision is the right to information on matters of public concern.
In its implementation, the right of access to official records is likewise conferred.
These cognate or related rights are "subject to limitations as may be provided by
law" (Bernas, The 1987 Phil. Constitution A Reviewer-Primer, 1997 ed., p. 104) and
rely on the premise that ultimately it is an informed and critical public opinion which
alone can protect the values of democratic government (Ibid.).
Petitioner argues that the matters covered by private respondent's letter-request
dated July 1, 1999 do not fall under the guarantee of the foregoing provision since
the matters contained in the documents requested are not of public concern. On the
other hand, private respondent argues that the distinction between matters vested
with public interest and matters which are of purely private interest only becomes
material when a third person, who is not directly affected by the matters requested,
invokes the right to information. However, if the person invoking the right is the one
directly affected thereby, his right to information becomes absolute.
The concept of matters of public concerns escapes exact definition. Strictly speaking,
every act of a public officer in the conduct of the governmental process is a matter of
public concern (Bernas, The 1987 Constitution of the Republic of the Philippines,
1996 ed., p. 336). This concept embraces a broad spectrum of subjects which the
public may want to know, either because these directly affect their lives or simply
because such matters arouse the interest of an ordinary citizen (Legaspi v. Civil
Service Commission, 150 SCRA 530 [1987]). Hence, the real party in interest is the
people and any citizen has "standing".
When the individual himself is involved in official government action because said
action has a direct bearing on his life, and may either cause him some kind of
deprivation or injury, he actually invokes the basic right to be notified under Section 1
of the Bill of Rights and not exactly the right to information on matters of public
concern. As to an accused in a criminal proceeding, he invokes Section 14,
particularly the right to be informed of the nature and cause of the accusation against
him.
The right to information is implemented by the right of access to information within
the control of the government (Bernas, The 1987 Constitution of the Republic of the
Philippines, 1996 ed., p. 337). Such information may be contained in official records,
and in documents and papers pertaining to official acts, transactions, or decisions.
In the case at bar, the papers requested by private respondent pertain to official
government action from the U.S. Government. No official action from our country has
yet been taken. Moreover, the papers have some relation to matters of foreign
relations with the U.S. Government. Consequently, if a third party invokes this
constitutional provision, stating that the extradition papers are matters of public
concern since they may result in the extradition of a Filipino, we are afraid that the
balance must be tilted, at such particular time, in favor of the interests necessary for
the proper functioning of the government. During the evaluation procedure, no official
governmental action of our own government has as yet been done; hence the
invocation of the right is premature. Later, and in contrast, records of the extradition
hearing would already fall under matters of public concern, because our government
by then shall have already made an official decision to grant the extradition request.
The extradition of a fellow Filipino would be forthcoming.
We now pass upon the final issue pertinent to the subject matter of the instant
controversy: Would private respondent's entitlement to notice and hearing during the
evaluation stage of the proceedings constitute a breach of the legal duties of the
Philippine Government under the RP-Extradition Treaty? Assuming the answer is in
the affirmative, is there really a conflict between the treaty and the due process
clause in the Constitution?
First and foremost, let us categorically say that this is not the proper time to pass
upon the constitutionality of the provisions of the RP-US Extradition Treaty nor the
Extradition Law implementing the same. We limit ourselves only to the effect of the
grant of the basic rights of notice and hearing to private respondent on foreign
relations.
The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of
international law, requires the parties to a treaty to keep their agreement therein in
good faith. The observance of our country's legal duties under a treaty is also
compelled by Section 2, Article II of the Constitution which provides that "[t]he
Philippines renounces war as an instrument of national policy, adopts the generally
accepted principles of international law as part of the law of the land, and adheres to
the policy of peace, equality, justice, freedom, cooperation and amity with nations."
Under the doctrine of incorporation, rules of international law form part of the law of
the and land no further legislative action is needed to make such rules applicable in
the domestic sphere (Salonga & Yap, Public International Law, 1992 ed., p. 12).
The doctrine of incorporation is applied whenever municipal tribunals (or local courts)
are confronted with situations in which there appears to be a conflict between a rule
of international law and the provisions of the constitution or statute of the local state.
Efforts should first be exerted to harmonize them, so as to give effect to both since it
is to be presumed that municipal law was enacted with proper regard for the
generally accepted principles of international law in observance of the observance of
the Incorporation Clause in the above-cited constitutional provision (Cruz, Philippine
Political Law, 1996 ed., p. 55). In a situation, however, where the conflict is
irreconcilable and a choice has to be made between a rule of international law and
municipal law, jurisprudence dictates that municipal law should be upheld by the
municipal courts (Ichong vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales vs.
Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2 SCRA 984 [1961]) for the reason
that such courts are organs of municipal law and are accordingly bound by it in all
circumstances (Salonga & Yap, op. cit., p. 13). The fact that international law has
been made part of the law of the land does not pertain to or imply the primacy of
international law over national or municipal law in the municipal sphere. The doctrine
of incorporation, as applied in most countries, decrees that rules of international law
are given equal standing with, but are not superior to, national legislative
enactments. Accordingly, the principle lex posterior derogat priori takes effect — a
treaty may repeal a statute and a statute may repeal a treaty. In states where the
constitution is the highest law of the land, such as the Republic of the Philippines,
both statutes and treaties may be invalidated if they are in conflict with the
constitution (Ibid.).
In the case at bar, is there really a conflict between international law and municipal or
national law? En contrario, these two components of the law of the land are not
pined against each other. There is no occasion to choose which of the two should be
upheld. Instead, we see a void in the provisions of the RP-US Extradition Treaty, as
implemented by Presidential Decree No. 1069, as regards the basic due process
rights of a prospective extraditee at the evaluation stage of extradition proceedings.
From the procedures earlier abstracted, after the filing of the extradition petition and
during the judicial determination of the propriety of extradition, the rights of notice
and hearing are clearly granted to the prospective extraditee. However, prior thereto,
the law is silent as to these rights. Reference to the U.S. extradition procedures also
manifests this silence.
Petitioner interprets this silence as unavailability of these rights. Consequently, he
describes the evaluation procedure as an "ex parte technical assessment" of the
sufficiency of the extradition request and the supporting documents.
We disagree.
In the absence of a law or principle of law, we must apply the rules of fair play. An
application of the basic twin due process rights of notice and hearing will not go
against the treaty or the implementing law. Neither the Treaty nor the Extradition Law
precludes these rights from a prospective extraditee. Similarly, American
jurisprudence and procedures on extradition pose no proscription. In fact, in
interstate extradition proceedings as explained above, the prospective extraditee
may even request for copies of the extradition documents from the governor of the
asylum state, and if he does, his right to be supplied the same becomes a
demandable right (35 C.J.S. 410).
Petitioner contends that the United States requested the Philippine Government to
prevent unauthorized disclosure of confidential information. Hence, the secrecy
surrounding the action of the Department of Justice Panel of Attorneys. The
confidentiality argument is, however, overturned by petitioner's revelation that
everything it refuses to make available at this stage would be obtainable during trial.
The Department of Justice states that the U.S. District Court concerned has
authorized the disclosure of certain grand jury information. If the information is truly
confidential, the veil of secrecy cannot be lifted at any stage of the extradition
proceedings. Not even during trial.
A libertarian approach is thus called for under the premises.
One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as
American jurisprudence and procedures on extradition, for any prohibition against
the conferment of the two basic due process rights of notice and hearing during the
evaluation stage of the extradition proceedings. We have to consider similar
situations in jurisprudence for an application by analogy.
Earlier, we stated that there are similarities between the evaluation process and a
preliminary investigation since both procedures may result in the arrest of the
respondent or the prospective extraditee. In the evaluation process, a provisional
arrest is even allowed by the Treaty and the Extradition Law (Article 9, RP-US
Extradition Treaty; Sec. 20, Presidential Decree No. 1069). Following petitioner's
theory, because there is no provision of its availability, does this imply that for a
period of time, the privilege of the writ of habeas corpus is suspended, despite
Section 15, Article III of the Constitution which states that "[t]he privilege of the writ
or habeas corpus shall not be suspended except in cases of invasion or rebellion
when the public safety requires it"? Petitioner's theory would also infer that bail is not
available during the arrest of the prospective extraditee when the extradition petition
has already been filed in court since Presidential Decree No. 1069 does not provide
therefor, notwithstanding Section 13, Article III of the Constitution which provides that
"[a]ll persons, except those charged with offenses punishable by reclusion
perpetua when evidence of guilt is strong, shall, before conviction, be bailable by
sufficient sureties, or be released on recognizance as may be provided by law. The
right to bail shall not be impaired even when the privilege of the writ of habeas
corpus is suspended. . ." Can petitioner validly argue that since these contraventions
are by virtue of a treaty and hence affecting foreign relations, the aforestated
guarantees in the Bill of Rights could thus be subservient thereto?
The basic principles of administrative law instruct us that "the essence of due
process in administrative proceeding is an opportunity to explain one's side or an
opportunity to seek reconsideration of the actions or ruling complained of (Mirano vs.
NLRC, 270 SCRA 96 [1997]; Padilla vs. NLRC, 273 SCRA 457 [1997]; PLDT vs.
NLRC, 276 SCRA 1 [1997]; Helpmate, Inc. vs. NLRC, 276 SCRA 315 [1997];
Aquinas School vs. Magnaye, 278 SCRA 602 [1997]; Jamer vs. NLRC, 278 SCRA
632 [1997]). In essence, procedural due process refers to the method or manner by
which the law is enforced (Corona vs. United Harbor Pilots Association of the Phils.,
283 SCRA 31 [1997]). This Court will not tolerate the least disregard of constitutional
guarantees in the enforcement of a law or treaty. Petitioner's fears that the
Requesting State may have valid objections to the Requested State's non-
performance of its commitments under the Extradition Treaty are insubstantial and
should not be given paramount consideration.
How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to
the four corners of Presidential Decree No. 1069?
Of analogous application are the rulings in Government Service Insurance System
vs. Court of Appeals (201 SCRA 661 [1991]) and Go vs. National Police
Commission (271 SCRA 447 [1997]) where we ruled that in summary proceedings
under Presidential Decree No. 807 (Providing for the Organization of the Civil
Service Commission in Accordance with Provisions of the Constitution, Prescribing
its Powers and Functions and for Other Purposes), and Presidential Decree No. 971
(Providing Legal Assistance for Members of the Integrated National Police who may
be charged for Service-Connected Offenses and Improving the Disciplinary System
in the Integrated National Police, Appropriating Funds Therefor and for other
purposes), as amended by Presidential Decree No. 1707, although summary
dismissals may be effected without the necessity of a formal investigation, the
minimum requirements of due process still operate. As held in GSIS vs. Court of
Appeals:
. . . [I]t is clear to us that what the opening sentence of Section 40 is saying is
that an employee may be removed or dismissed even without formal
investigation, in certain instances. It is equally clear to us that an employee
must be informed of the charges preferred against him, and that the normal
way by which the employee is so informed is by furnishing him with a copy of
the charges against him. This is a basic procedural requirement that a statute
cannot dispense with and still remain consistent with the constitutional
provision on due process. The second minimum requirement is that the
employee charged with some misfeasance or malfeasance must have a
reasonable opportunity to present his side of the matter, that is to say, his
defenses against the charges levelled against him and to present evidence in
support of his defenses. . . .
(at p. 671)
Said summary dismissal proceedings are also non-litigious in nature, yet we upheld
the due process rights of the respondent.
In the case at bar, private respondent does not only face a clear and present danger
of loss of property or employment, but of liberty itself, which may eventually lead to
his forcible banishment to a foreign land. The convergence of petitioner's favorable
action on the extradition request and the deprivation of private respondent's liberty is
easily comprehensible.

We have ruled time and again that this Court's equity jurisdiction, which is aptly
described as "justice outside legality," may be availed of only in the absence of, and
never against, statutory law or judicial pronouncements (Smith Bell & Co., Inc. vs.
Court of Appeals, 267 SCRA 530 [1997]; David-Chan vs. Court of Appeals, 268
SCRA 677 [1997]). The constitutional issue in the case at bar does not even call for
"justice outside legality," since private respondent's due process rights, although not
guaranteed by statute or by treaty, are protected by constitutional guarantees. We
would not be true to the organic law of the land if we choose strict construction over
guarantees against the deprivation of liberty. That would not be in keeping with the
principles of democracy on which our Constitution is premised.

Verily, as one traverses treacherous waters of conflicting and opposing currents of

liberty and government authority, he must ever hold the oar of freedom in the
stronger arm, lest an errant and wayward course be laid.

WHEREFORE, in view of the foregoing premises, the instant petition is hereby

DISMISSED for lack of merit. Petitioner is ordered to furnish private respondent
copies of the extradition request and its supporting papers, and to grant him a
reasonable period within which to file his comment with supporting evidence. The
incidents in Civil Case No. 99-94684 having been rendered moot and academic by
this decision, the same is hereby ordered dismissed.

SO ORDERED.