EN BANC

G.R. No. 160261 November 10, 2003

ERNESTO B. FRANCISCO, JR., petitioner,

NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA MANGGAGAWANG PILIPINO, INC., ITS
OFFICERS AND MEMBERS, petitioner-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER JOSE G. DE VENECIA, THE
SENATE, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON, REPRESENTATIVE
GILBERTO C. TEODORO, JR. AND REPRESENTATIVE FELIX WILLIAM B.
FUENTEBELLA, respondents.
JAIME N. SORIANO, respondent-in-Intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160262 November 10, 2003

SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA RAZON-ABAD, petitioners,

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

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

G.R. No. 160263 November 10, 2003

ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners,

WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioners-in-intervention,
vs.

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FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT, AND JOSE G. DE VENECIA, JR.,
IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF REPRESENTATIVES, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160277 November 10, 2003

FRANCISCO I. CHAVEZ, petitioner,

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

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

G.R. No. 160292 November 10, 2003

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

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SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES, AND THE HOUSE OF
REPRESENTATIVES,respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160295 November 10, 2003

SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. GONZALES, petitioners,

WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention,

vs.
THE HOUSE OF REPRESEN-TATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR
PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO,
JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES,
THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160310 November 10, 2003

LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN MATIBAG, RAMON

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

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G.R. No. 160318 November 10, 2003

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

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

G.R. No. 160342 November 10, 2003

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

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

G.R. No. 160343 November 10, 2003

INTEGRATED BAR OF THE PHILIPPINES, petitioner,

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

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

G.R. No. 160360 November 10, 2003

CLARO B. FLORES, petitioner,

vs.
THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER, AND THE SENATE OF THE
PHILIPPINES, THROUGH THE SENATE PRESIDENT, respondents.

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

G.R. No. 160365 November 10, 2003

U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C. PADERANGA, DANILO V. ORTIZ,
GLORIA C. ESTENZO-RAMOS, LIZA D. CORRO, LUIS V. DIORES, SR., BENJAMIN S. RALLON,
ROLANDO P. NONATO, DANTE T. RAMOS, ELSA R. DIVINAGRACIA, KAREN B. CAPARROS-
ARQUILLANO, SYLVA G. AGUIRRE-PADERANGA, FOR THEMSELVES AND IN BEHALF OF OTHER

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CITIZENS OF THE REPUBLIC OF THE PHILIPPINES, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, SPEAKER JOSE G. DE VENECIA, THE SENATE OF THE
PHILIPPINES, SENATE PRESIDENT FRANKLIN DRILON, HOUSE REPRESENTATIVES FELIX
FUENTEBELLA AND GILBERTO TEODORO, BY THEMSELVES AND AS REPRESENTATIVES OF THE
GROUP OF MORE THAN 80 HOUSE REPRESENTATIVES WHO SIGNED AND FILED THE
IMPEACHMENT COMPLAINT AGAINST SUPREME COURT CHIEF JUSTICE HILARIO G. DAVIDE,
JR. respondents.

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

G.R. No. 160370 November 10, 2003

FR. RANHILIO CALLANGAN AQUINO, petitioner,

vs.
THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE SPEAKER OF THE HOUSE OF
REPRESENTATIVES, respondents.

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

G.R. No. 160376 November 10, 2003

NILO A. MALANYAON, petitioner,

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

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

G.R. No. 160392 November 10, 2003

VENICIO S. FLORES AND HECTOR L. HOFILEÑA, petitioners,

vs.
THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G. DE VENECIA, AND THE SENATE
OF THE PHILIPPINES, THROUGH SENATE PRESIDENT FRANKLIN DRILON, respondents.

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

G.R. No. 160397 November 10, 2003

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

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

G.R. No. 160403 November 10, 2003

PHILIPPINE BAR ASSOCIATION, petitioner,

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

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

G.R. No. 160405 November 10, 2003

DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY CHAPTER, MANUEL M. MONZON,

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

CARPIO MORALES, J.:

There can be no constitutional crisis arising from a conflict, no matter how passionate and seemingly
irreconcilable it may appear to be, over the determination by the independent branches of government of the
nature, scope and extent of their respective constitutional powers where the Constitution itself provides for
the means and bases for its resolution.

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

There may indeed be some legitimacy to the characterization that the present controversy subject of the
instant petitions – whether the filing of the second impeachment complaint against Chief Justice Hilario G.

6 |C o n s t i t u t i o n a l L a w I P a g e 1
Davide, Jr. with the House of Representatives falls within the one year bar provided in the Constitution, and
whether the resolution thereof is a political question – has resulted in a political crisis. Perhaps even more
truth to the view that it was brought upon by a political crisis of conscience.

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

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

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

Taken together, these two fundamental doctrines of republican government, intended as they are to insure
that governmental power is wielded only for the good of the people, mandate a relationship of
interdependence and coordination among these branches where the delicate functions of enacting,
interpreting and enforcing laws are harmonized to achieve a unity of governance, guided only by what is in
the greater interest and well-being of the people. Verily, salus populi est suprema lex.

Article XI of our present 1987 Constitution provides:

ARTICLE XI

Accountability of Public Officers

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

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

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

7 |C o n s t i t u t i o n a l L a w I P a g e 1
 (2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which
shall be included in the Order of Business within ten session days, and referred to the proper
Committee within three session days thereafter. The Committee, after hearing, and by a majority
vote of all its Members, shall submit its report to the House within sixty session days from such
referral, together with the corresponding resolution. The resolution shall be calendared for
consideration by the House within ten session days from receipt thereof.

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

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

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

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

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

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

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

11TH CONGRESS RULES 12TH CONGRESS NEW RULES

RULE II RULE V

INITIATING IMPEACHMENT BAR AGAINST INITIATION OF

IMPEACHMENT PROCEEDINGS AGAINST

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 Section 2. Mode of Initiating THE SAME OFFICIAL
Impeachment. – Impeachment shall be
initiated only by a verified complaint for Section 16. – Impeachment Proceedings
impeachment filed by any Member of the Deemed Initiated. – In cases where a
House of Representatives or by any citizen Member of the House files a verified
upon a resolution of endorsement by any complaint of impeachment or a citizen files a
Member thereof or by a verified complaint or verified complaint that is endorsed by a
resolution of impeachment filed by at least Member of the House through a resolution of
one-third (1/3) of all the Members of the endorsement against an impeachable officer,
House. impeachment proceedings against such
official are deemed initiated on the day the
Committee on Justice finds that the verified
complaint and/or resolution against such
official, as the case may be, is sufficient in
substance, or on the date the House votes to
overturn or affirm the finding of the said
Committee that the verified complaint and/or
resolution, as the case may be, is not
sufficient in substance.

In cases where a verified complaint or a

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

RULE V Section 17. Bar Against Initiation Of

Impeachment Proceedings. – Within a
BAR AGAINST IMPEACHMENT period of one (1) year from the date
impeachment proceedings are deemed
Section 14. Scope of Bar. – No impeachment initiated as provided in Section 16 hereof, no
impeachment proceedings, as such, can be
proceedings shall be initiated against the same
initiated against the same official. (Italics in
official more than once within the period of one
the original; emphasis and underscoring
(1) year.
supplied)

On July 22, 2002, the House of Representatives adopted a Resolution,2 sponsored by Representative Felix
William D. Fuentebella, which directed the Committee on Justice "to conduct an investigation, in aid of

9 |C o n s t i t u t i o n a l L a w I P a g e 1
legislation, on the manner of disbursements and expenditures by the Chief Justice of the Supreme Court of
the Judiciary Development Fund (JDF)."3

On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint 4 (first impeachment
complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate Justices5 of this Court for
"culpable violation of the Constitution, betrayal of the public trust and other high crimes."6 The complaint was
endorsed by Representatives Rolex T. Suplico, Ronaldo B. Zamora and Didagen Piang Dilangalen, 7 and was
referred to the House Committee on Justice on August 5, 20038 in accordance with Section 3(2) of Article XI
of the Constitution which reads:

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

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

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

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

In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he has a duty as a member of the
Integrated Bar of the Philippines to use all available legal remedies to stop an unconstitutional impeachment,
that the issues raised in his petition for Certiorari, Prohibition and Mandamus are of transcendental
importance, and that he "himself was a victim of the capricious and arbitrary changes in the Rules of
Procedure in Impeachment Proceedings introduced by the 12th Congress," 14 posits that his right to bring an
impeachment complaint against then Ombudsman Aniano Desierto had been violated due to the capricious
and arbitrary changes in the House Impeachment Rules adopted and approved on November 28, 2001 by
the House of Representatives and prays that (1) Rule V, Sections 16 and 17 and Rule III, Sections 5, 6, 7, 8,
and 9 thereof be declared unconstitutional; (2) this Court issue a writ of mandamus directing respondents

10 |C o n s t i t u t i o n a l L a w I P a g e 1
House of Representatives et. al. to comply with Article IX, Section 3 (2), (3) and (5) of the Constitution, to
return the second impeachment complaint and/or strike it off the records of the House of Representatives,
and to promulgate rules which are consistent with the Constitution; and (3) this Court permanently enjoin
respondent House of Representatives from proceeding with the second impeachment complaint.

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

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

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

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

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

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

In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members are citizens and taxpayers, and
its co-petitioner Crispin T. Reyes, a citizen, taxpayer and a member of the Philippine Bar, both allege in their

11 |C o n s t i t u t i o n a l L a w I P a g e 1
petition, which does not state what its nature is, that the filing of the second impeachment complaint involves
paramount public interest and pray that Sections 16 and 17 of the House Impeachment Rules and the
second impeachment complaint/Articles of Impeachment be declared null and void.

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

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

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

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

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

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

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

In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging his locus standi, but alleging that
the second impeachment complaint is founded on the issue of whether or not the Judicial Development Fund

12 |C o n s t i t u t i o n a l L a w I P a g e 1
(JDF) was spent in accordance with law and that the House of Representatives does not have exclusive
jurisdiction in the examination and audit thereof, prays in his petition "To Declare Complaint Null and Void for
Lack of Cause of Action and Jurisdiction" that the second impeachment complaint be declared null and void.

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

In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and taxpayers, pray in their petition
for Certiorari/Prohibition that (1) the second impeachment complaint as well as the resolution of endorsement
and impeachment by the respondent House of Representatives be declared null and void and (2)
respondents Senate and Senate President Franklin Drilon be prohibited from accepting any Articles of
Impeachment against the Chief Justice or, in the event that they have accepted the same, that they be
prohibited from proceeding with the impeachment trial.

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

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

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

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

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

13 |C o n s t i t u t i o n a l L a w I P a g e 1
quo, enjoining all the parties and others acting for and in their behalf to refrain from committing acts that
would render the petitions moot.

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

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

On October 29, 2003, the Senate of the Philippines, through Senate President Franklin M. Drilon, filed a
Manifestation stating that insofar as it is concerned, the petitions are plainly premature and have no basis in
law or in fact, adding that as of the time of the filing of the petitions, no justiciable issue was presented before
it since (1) its constitutional duty to constitute itself as an impeachment court commences only upon its
receipt of the Articles of Impeachment, which it had not, and (2) the principal issues raised by the petitions
pertain exclusively to the proceedings in the House of Representatives.

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

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

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

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

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

14 |C o n s t i t u t i o n a l L a w I P a g e 1
 Whether the certiorari jurisdiction of the Supreme Court may be invoked; who can invoke it; on
what issues and at what time; and whether it should be exercised by this Court at this time.

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

a) locus standi of petitioners;

b) ripeness(prematurity; mootness);

c) political question/justiciability;

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

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

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

of the Constitution; and

g) judicial restraint (Italics in the original)

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

Judicial Review

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

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

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

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

15 |C o n s t i t u t i o n a l L a w I P a g e 1
Such power of judicial review was early on exhaustively expounded upon by Justice Jose P. Laurel in the
definitive 1936 case of Angara v. Electoral Commission23 after the effectivity of the 1935 Constitution whose
provisions, unlike the present Constitution, did not contain the present provision in Article VIII, Section 1, par.
2 on what judicial power includes. Thus, Justice Laurel discoursed:

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

As any human production, our Constitution is of course lacking perfection and perfectibility, but as
much as it was within the power of our people, acting through their delegates to so provide, that
instrument which is the expression of their sovereignty however limited, has established a
republican government intended to operate and function as a harmonious whole, under a system of
checks and balances, and subject to specific limitations and restrictions provided in the said
instrument. The Constitution sets forth in no uncertain language the restrictions and
limitations upon governmental powers and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution had not provided for a mechanism
by which to direct the course of government along constitutional channels,for then the
distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and
the principles of good government mere political apothegms. Certainly, the limitations and
restrictions embodied in our Constitution are real as they should be in any living constitution. In the
United States where no express constitutional grant is found in their constitution, the possession
of this moderating power of the courts, not to speak of its historical origin and development
there, has been set at rest by popular acquiescence for a period of more than one and a half
centuries. In our case, this moderating power is granted, if not expressly, by clear implication
from section 2 of article VIII of our Constitution.

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

16 |C o n s t i t u t i o n a l L a w I P a g e 1
 controversies must reflect the wisdom and justice of the people as expressed through their
representatives in the executive and legislative departments of the government. 24 (Italics in the
original; emphasis and underscoring supplied)

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

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

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

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

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

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

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

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

As indicated in Angara v. Electoral Commission,31 judicial review is indeed an integral component of the
delicate system of checks and balances which, together with the corollary principle of separation of powers,
forms the bedrock of our republican form of government and insures that its vast powers are utilized only for
the benefit of the people for which it serves.

17 |C o n s t i t u t i o n a l L a w I P a g e 1
 The separation of powers is a fundamental principle in our system of government. It obtains
not through express provision but by actual division in our Constitution. Each department of the
government has exclusive cognizance of matters within its jurisdiction, and is supreme within its
own sphere. But it does not follow from the fact that the three powers are to be kept separate and
distinct that the Constitution intended them to be absolutely unrestrained and independent of each
other. The Constitution has provided for an elaborate system of checks and balances to
secure coordination in the workings of the various departments of the government. x x
x And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks
the other departments in the exercise of its power to determine the law, and hence to
declare executive and legislative acts void if violative of the Constitution.32 (Emphasis and
underscoring supplied)

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

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

xxx

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

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

I suppose nobody can question it.

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

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

Fellow Members of this Commission, this is actually a product of our experience during
martial law. As a matter of fact, it has some antecedents in the past, but the role of the judiciary
during the deposed regime was marred considerably by the circumstance that in a number
of cases against the government, which then had no legal defense at all, the solicitor
general set up the defense of political questions and got away with it. As a consequence,

18 |C o n s t i t u t i o n a l L a w I P a g e 1
 certain principles concerning particularly the writ of habeas corpus, that is, the authority of courts to
order the release of political detainees, and other matters related to the operation and effect of
martial law failed because the government set up the defense of political question. And the
Supreme Court said: "Well, since it is political, we have no authority to pass upon it." The
Committee on the Judiciary feels that this was not a proper solution of the questions
involved. It did not merely request an encroachment upon the rights of the people, but it, in
effect, encouraged further violations thereof during the martial law regime. x x x

xxx

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

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

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

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

We look to the language of the document itself in our search for its meaning. We do not of
course stop there, but that is where we begin. It is to be assumed that the words in which
constitutional provisions are couched express the objective sought to be attained. They are
to be given their ordinary meaning except where technical terms are employed in which
case the significance thus attached to them prevails. As the Constitution is not primarily a
lawyer's document, it being essential for the rule of law to obtain that it should ever be present in
the people's consciousness, its language as much as possible should be understood in the sense
they have in common use. What it says according to the text of the provision to be construed
compels acceptance and negates the power of the courts to alter it, based on the postulate that
the framers and the people mean what they say. Thus these are the cases where the need for
construction is reduced to a minimum.37 (Emphasis and underscoring supplied)

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

19 |C o n s t i t u t i o n a l L a w I P a g e 1
 A foolproof yardstick in constitutional construction is the intention underlying the provision under
consideration. Thus, it has been held that the Court in construing a Constitution should bear in
mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be
prevented or remedied. A doubtful provision will be examined in the light of the history of the times,
and the condition and circumstances under which the Constitution was framed. The object is to
ascertain the reason which induced the framers of the Constitution to enact the particular
provision and the purpose sought to be accomplished thereby, in order to construe the
whole as to make the words consonant to that reason and calculated to effect that
purpose.39 (Emphasis and underscoring supplied)

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

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

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

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

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

It is a well-established rule in constitutional construction that no one provision of the

Constitution is to be separated from all the others, to be considered alone, but that all the
provisions bearing upon a particular subject are to be brought into view and to be so
interpreted as to effectuate the great purposes of the instrument. Sections bearing on a
particular subject should be considered and interpreted together as to effectuate the whole
purpose of the Constitution and one section is not to be allowed to defeat another, if by any
reasonable construction, the two can be made to stand together.

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

20 |C o n s t i t u t i o n a l L a w I P a g e 1
If, however, the plain meaning of the word is not found to be clear, resort to other aids is available. In still the
same case of Civil Liberties Union v. Executive Secretary, this Court expounded:

While it is permissible in this jurisdiction to consult the debates and proceedings of the
constitutional convention in order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other guides fail as said proceedings are
powerless to vary the terms of the Constitution when the meaning is clear. Debates in the
constitutional convention "are of value as showing the views of the individual members, and as
indicating the reasons for their votes, but they give us no light as to the views of the large majority
who did not talk, much less of the mass of our fellow citizens whose votes at the polls gave that
instrument the force of fundamental law. We think it safer to construe the constitution from
what appears upon its face." The proper interpretation therefore depends more on how it
was understood by the people adopting it than in the framers's understanding
thereof.46 (Emphasis and underscoring supplied)

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

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

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

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

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

21 |C o n s t i t u t i o n a l L a w I P a g e 1
Said American jurisprudence and authorities, much less the American Constitution, are of dubious
application for these are no longer controlling within our jurisdiction and have only limited persuasive merit
insofar as Philippine constitutional law is concerned. As held in the case of Garcia vs. COMELEC,52 "[i]n
resolving constitutional disputes, [this Court] should not be beguiled by foreign jurisprudence some of which
are hardly applicable because they have been dictated by different constitutional settings and
needs."53 Indeed, although the Philippine Constitution can trace its origins to that of the United States, their
paths of development have long since diverged. In the colorful words of Father Bernas, "[w]e have cut the
umbilical cord."

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

There are also glaring distinctions between the U.S. Constitution and the Philippine Constitution with respect
to the power of the House of Representatives over impeachment proceedings. While the U.S. Constitution
bestows sole power of impeachment to the House of Representatives without limitation, 54 our Constitution,
though vesting in the House of Representatives the exclusive power to initiate impeachment
cases,55 provides for several limitations to the exercise of such power as embodied in Section 3(2), (3), (4)
and (5), Article XI thereof. These limitations include the manner of filing, required vote to impeach, and the
one year bar on the impeachment of one and the same official.

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

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

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

There is indeed a plethora of cases in which this Court exercised the power of judicial review over
congressional action. Thus, in Santiago v. Guingona, Jr.,60 this Court ruled that it is well within the power and
jurisdiction of the Court to inquire whether the Senate or its officials committed a violation of the Constitution
or grave abuse of discretion in the exercise of their functions and prerogatives. In Tanada v. Angara,61 in
seeking to nullify an act of the Philippine Senate on the ground that it contravened the Constitution, it held

22 |C o n s t i t u t i o n a l L a w I P a g e 1
that the petition raises a justiciable controversy and that when an action of the legislative branch is seriously
alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to
settle the dispute. In Bondoc v. Pineda,62 this Court declared null and void a resolution of the House of
Representatives withdrawing the nomination, and rescinding the election, of a congressman as a member of
the House Electoral Tribunal for being violative of Section 17, Article VI of the Constitution. In Coseteng v.
Mitra,63 it held that the resolution of whether the House representation in the Commission on Appointments
was based on proportional representation of the political parties as provided in Section 18, Article VI of the
Constitution is subject to judicial review. In Daza v. Singson,64 it held that the act of the House of
Representatives in removing the petitioner from the Commission on Appointments is subject to judicial
review. In Tanada v. Cuenco,65 it held that although under the Constitution, the legislative power is vested
exclusively in Congress, this does not detract from the power of the courts to pass upon the constitutionality
of acts of Congress. In Angara v. Electoral Commission,66 it ruled that confirmation by the National Assembly
of the election of any member, irrespective of whether his election is contested, is not essential before such
member-elect may discharge the duties and enjoy the privileges of a member of the National Assembly.

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

Essential Requisites for Judicial Review

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

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

Standing

Locus standi or legal standing or has been defined as a personal and substantial interest in the case such
that the party has sustained or will sustain direct injury as a result of the governmental act that is being

23 |C o n s t i t u t i o n a l L a w I P a g e 1
challenged. The gist of the question of standing is whether a party alleges such personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court depends for illumination of difficult constitutional questions. 69

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

Upon the other hand, the Solicitor General asserts that petitioners have standing since this Court had, in the
past, accorded standing to taxpayers, voters, concerned citizens, legislators in cases involving paramount
public interest70 and transcendental importance,71 and that procedural matters are subordinate to the need to
determine whether or not the other branches of the government have kept themselves within the limits of the
Constitution and the laws and that they have not abused the discretion given to them.72 Amicus curiae Dean
Raul Pangalangan of the U.P. College of Law is of the same opinion, citing transcendental importance and
the well-entrenched rule exception that, when the real party in interest is unable to vindicate his rights by
seeking the same remedies, as in the case of the Chief Justice who, for ethical reasons, cannot himself
invoke the jurisdiction of this Court, the courts will grant petitioners standing.

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

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

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

xxx

On the other hand, the question as to "real party in interest" is whether he is "the party who would
be benefited or injured by the judgment, or the 'party entitled to the avails of the suit.'"76 (Citations
omitted)

24 |C o n s t i t u t i o n a l L a w I P a g e 1
While rights personal to the Chief Justice may have been injured by the alleged unconstitutional acts of the
House of Representatives, none of the petitioners before us asserts a violation of the personal rights of the
Chief Justice. On the contrary, they invariably invoke the vindication of their own rights – as taxpayers;
members of Congress; citizens, individually or in a class suit; and members of the bar and of the legal
profession – which were supposedly violated by the alleged unconstitutional acts of the House of
Representatives.

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

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

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

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

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

While an association has legal personality to represent its members,84 especially when it is composed of
substantial taxpayers and the outcome will affect their vital interests,85 the mere invocation by the Integrated
Bar of the Philippines or any member of the legal profession of the duty to preserve the rule of law and
nothing more, although undoubtedly true, does not suffice to clothe it with standing. Its interest is too general.
It is shared by other groups and the whole citizenry. However, a reading of the petitions shows that it has
advanced constitutional issues which deserve the attention of this Court in view of their seriousness, novelty
and weight as precedents.86 It, therefore, behooves this Court to relax the rules on standing and to resolve
the issues presented by it.

25 |C o n s t i t u t i o n a l L a w I P a g e 1
In the same vein, when dealing with class suits filed in behalf of all citizens, persons intervening must be
sufficiently numerous to fully protect the interests of all concerned87 to enable the court to deal properly with
all interests involved in the suit,88 for a judgment in a class suit, whether favorable or unfavorable to the
class, is, under the res judicata principle, binding on all members of the class whether or not they were
before the court.89 Where it clearly appears that not all interests can be sufficiently represented as shown by
the divergent issues raised in the numerous petitions before this Court, G.R. No. 160365 as a class suit
ought to fail. Since petitioners additionallyallege standing as citizens and taxpayers, however, their petition
will stand.

The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground of transcendental importance,
while Atty. Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his standing.

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

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

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

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

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

Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262, 160263, 160277, 160292,
160295, and 160310 were of transcendental importance, World War II Veterans Legionnaires of the

26 |C o n s t i t u t i o n a l L a w I P a g e 1
Philippines, Inc. filed a "Petition-in-Intervention with Leave to Intervene" to raise the additional issue of
whether or not the second impeachment complaint against the Chief Justice is valid and based on any of the
grounds prescribed by the Constitution.

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

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

Lastly, as to Jaime N. Soriano's motion to intervene, the same must be denied for, while he asserts an
interest as a taxpayer, he failed to meet the standing requirement for bringing taxpayer's suits as set forth
in Dumlao v. Comelec,93 to wit:

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

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

Ripeness and Prematurity

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

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

27 |C o n s t i t u t i o n a l L a w I P a g e 1
Related to the issue of ripeness is the question of whether the instant petitions are premature. Amicus
curiae former Senate President Jovito R. Salonga opines that there may be no urgent need for this Court to
render a decision at this time, it being the final arbiter on questions of constitutionality anyway. He thus
recommends that all remedies in the House and Senate should first be exhausted.

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

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

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

Justiciability

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

[T]he term "political question" connotes, in legal parlance, what it means in ordinary parlance,
namely, a question of policy. In other words, in the language of Corpus Juris Secundum, it refers to
"those questions which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to the Legislature or
executive branch of the Government." It is concerned with issues dependent upon the wisdom, not
legality, of a particular measure.99(Italics in the original)

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

28 |C o n s t i t u t i o n a l L a w I P a g e 1
question doctrine and took cognizance thereof. Ratification by the people of a Constitution is a political
question, it being a question decided by the people in their sovereign capacity.

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

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

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

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

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

I suppose nobody can question it.

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

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

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

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

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

xxx

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

30 |C o n s t i t u t i o n a l L a w I P a g e 1
 residence, much less did they participate in the alleged referendum. None of them saw any
referendum proceeding.

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

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

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

xxx

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

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

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

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

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

Briefly stated, courts of justice determine the limits of power of the agencies and offices of
the government as well as those of its officers. In other words, the judiciary is the final
arbiter on the question whether or not a branch of government or any of its officials has

31 |C o n s t i t u t i o n a l L a w I P a g e 1
 acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an
abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not
only a judicial power but a duty to pass judgment on matters of this nature.

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

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

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

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

MR. CONCEPCION. Yes.

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

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

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

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

xxx

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

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

MR. CONCEPCION. No.

FR. BERNAS. It is not.

32 |C o n s t i t u t i o n a l L a w I P a g e 1
 MR. CONCEPCION. No, because whenever there is an abuse of discretion, amounting to a
lack of jurisdiction. . .

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

MR. CONCEPCION. No, certainly not.

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

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

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

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

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

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

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

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

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

The "allocation of constitutional boundaries" is a task that this Court must perform under the
Constitution. Moreover, as held in a recent case, "(t)he political question doctrine neither
interposes an obstacle to judicial determination of the rival claims. The jurisdiction

33 |C o n s t i t u t i o n a l L a w I P a g e 1
 to delimit constitutional boundaries has been given to this Court. It cannot abdicate that
obligation mandated by the 1987 Constitution, although said provision by no means does
away with the applicability of the principle in appropriate cases."108 (Emphasis and
underscoring supplied)

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

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

Section 1, Article VIII, of the Court does not define what are justiciable political questions and non-justiciable
political questions, however. Identification of these two species of political questions may be problematic.
There has been no clear standard. The American case of Baker v. Carr111 attempts to provide some:

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

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

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

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

These petitions raise five substantial issues:

34 |C o n s t i t u t i o n a l L a w I P a g e 1
 I. Whether the offenses alleged in the Second impeachment complaint constitute valid
impeachable offenses under the Constitution.

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

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

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

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

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

Although Section 2 of Article XI of the Constitution enumerates six grounds for impeachment, two of these,
namely, other high crimes and betrayal of public trust, elude a precise definition. In fact, an examination of
the records of the 1986 Constitutional Commission shows that the framers could find no better way to
approximate the boundaries of betrayal of public trust and other high crimes than by alluding to both positive
and negative examples of both, without arriving at their clear cut definition or even a standard
therefor.114 Clearly, the issue calls upon this court to decide a non-justiciable political question which is
beyond the scope of its judicial power under Section 1, Article VIII.

Lis Mota

It is a well-settled maxim of adjudication that an issue assailing the constitutionality of a governmental act
should be avoided whenever possible. Thus, in the case of Sotto v. Commission on Elections,115 this Court
held:

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

35 |C o n s t i t u t i o n a l L a w I P a g e 1
The same principle was applied in Luz Farms v. Secretary of Agrarian Reform,117 where this Court
invalidated Sections 13 and 32 of Republic Act No. 6657 for being confiscatory and violative of due process,
to wit:

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

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

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

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

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

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

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

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

36 |C o n s t i t u t i o n a l L a w I P a g e 1
 The power of both houses of Congress to conduct inquiries in aid of legislation is not, therefore
absolute or unlimited. Its exercise is circumscribed by the afore-quoted provision of the
Constitution. Thus, as provided therein, the investigation must be "in aid of legislation in
accordance with its duly published rules of procedure" and that "the rights of persons appearing in
or affected by such inquiries shall be respected." It follows then that the right rights of persons
under the Bill of Rights must be respected, including the right to due process and the right not be
compelled to testify against one's self.123

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

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

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

"We are the proponents/sponsors of the Resolution of Endorsement of the abovementioned

Complaint of Representatives Gilberto Teodoro and Felix William B. Fuentebella x x x"124

Intervenors Macalintal and Quadra further claim that what the Constitution requires in order for said second
impeachment complaint to automatically become the Articles of Impeachment and for trial in the Senate to
begin "forthwith," is that the verified complaint be "filed," not merely endorsed, by at least one-third of the
Members of the House of Representatives. Not having complied with this requirement, they concede that the
second impeachment complaint should have been calendared and referred to the House Committee on
Justice under Section 3(2), Article XI of the Constitution, viz:

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

Intervenors' foregoing position is echoed by Justice Maambong who opined that for Section 3 (4), Article XI
of the Constitution to apply, there should be 76 or more representatives who signed and verified the second
impeachment complaint as complainants, signed and verified the signatories to a resolution of impeachment.

37 |C o n s t i t u t i o n a l L a w I P a g e 1
Justice Maambong likewise asserted that the Resolution of Endorsement/Impeachment signed by at least
one-third of the members of the House of Representatives as endorsers is not the resolution of impeachment
contemplated by the Constitution, such resolution of endorsement being necessary only from at least one
Member whenever a citizen files a verified impeachment complaint.

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

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

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

Judicial Restraint

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

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

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

38 |C o n s t i t u t i o n a l L a w I P a g e 1
Even in cases where it is an interested party, the Court under our system of government cannot inhibit itself
and must rule upon the challenge because no other office has the authority to do so. 128 On the occasion that
this Court had been an interested party to the controversy before it, it has acted upon the matter "not with
officiousness but in the discharge of an unavoidable duty and, as always, with detachment and
fairness."129 After all, "by [his] appointment to the office, the public has laid on [a member of the judiciary]
their confidence that [he] is mentally and morally fit to pass upon the merits of their varied contentions. For
this reason, they expect [him] to be fearless in [his] pursuit to render justice, to be unafraid to displease any
person, interest or power and to be equipped with a moral fiber strong enough to resist the temptations
lurking in [his] office."130

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

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

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

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

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

39 |C o n s t i t u t i o n a l L a w I P a g e 1
 membership of Senators and that no amendment of its Rules can confer on the three Justices-
Members alone the power of valid adjudication of a senatorial election contest.

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

Moreover, to disqualify any of the members of the Court, particularly a majority of them, is nothing
short of pro tanto depriving the Court itself of its jurisdiction as established by the fundamental law.
Disqualification of a judge is a deprivation of his judicial power. And if that judge is the one
designated by the Constitution to exercise the jurisdiction of his court, as is the case with the
Justices of this Court, the deprivation of his or their judicial power is equivalent to the deprivation of
the judicial power of the court itself. It affects the very heart of judicial independence. The proposed
mass disqualification, if sanctioned and ordered, would leave the Court no alternative but to
abandon a duty which it cannot lawfully discharge if shorn of the participation of its entire
membership of Justices.133 (Italics in the original)

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

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

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

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

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

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

5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show
that he is injured by its operation. Among the many applications of this rule, none is more striking

40 |C o n s t i t u t i o n a l L a w I P a g e 1
 than the denial of the right of challenge to one who lacks a personal or property right. Thus, the
challenge by a public official interested only in the performance of his official duty will not be
entertained . . . In Fairchild v. Hughes, the Court affirmed the dismissal of a suit brought by a
citizen who sought to have the Nineteenth Amendment declared unconstitutional.
In Massachusetts v. Mellon, the challenge of the federal Maternity Act was not entertained
although made by the Commonwealth on behalf of all its citizens.

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

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

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

1. that there be absolute necessity of deciding a case

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

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

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

5. that the parties are not in estoppel

6. that the Court upholds the presumption of constitutionality.

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

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

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

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

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

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

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

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

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

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

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

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

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

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Constitutionality of the Rules of Procedure
for Impeachment Proceedings
adopted by the 12th Congress

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

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

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

"Initiate" of course is understood by ordinary men to mean, as dictionaries do, to begin, to commence, or set
going. As Webster's Third New International Dictionary of the English Language concisely puts it, it means
"to perform or facilitate the first action," which jibes with Justice Regalado's position, and that of Father
Bernas, who elucidated during the oral arguments of the instant petitions on November 5, 2003 in this wise:

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

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

43 |C o n s t i t u t i o n a l L a w I P a g e 1
As stated earlier, one of the means of interpreting the Constitution is looking into the intent of the law.
Fortunately, the intent of the framers of the 1987 Constitution can be pried from its records:

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

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

xxx

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

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

xxx

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

44 |C o n s t i t u t i o n a l L a w I P a g e 1
 I am proposing, Madam President, without doing damage to any of this provision, that on page 2,
Section 3 (3), from lines 17 to 18, we delete the words which read: "to initiate impeachment
proceedings" and the comma (,) and insert on line 19 after the word "resolution" the phrase WITH
THE ARTICLES, and then capitalize the letter "i" in "impeachment" and replace the word "by" with
OF, so that the whole section will now read: "A vote of at least one-third of all the Members of the
House shall be necessary either to affirm a resolution WITH THE ARTICLES of Impeachment OF
the Committee or to override its contrary resolution. The vote of each Member shall be recorded."

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

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

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

Amicus curiae Constitutional Commissioner Regalado is of the same view as is Father Bernas, who was also
a member of the 1986 Constitutional Commission, that the word "initiate" as used in Article XI, Section 3(5)
means to file, both adding, however, that the filing must be accompanied by an action to set the complaint
moving.

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

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

xxx

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

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

45 |C o n s t i t u t i o n a l L a w I P a g e 1
Father Bernas explains that in these two provisions, the common verb is "to initiate." The object in the first
sentence is "impeachment case." The object in the second sentence is "impeachment proceeding." Following
the principle of reddendo singuala sinuilis, the term "cases" must be distinguished from the term
"proceedings." An impeachment case is the legal controversy that must be decided by the Senate. Above-
quoted first provision provides that the House, by a vote of one-third of all its members, can bring a case to
the Senate. It is in that sense that the House has "exclusive power" to initiate all cases of impeachment. No
other body can do it. However, before a decision is made to initiate a case in the Senate, a "proceeding"
must be followed to arrive at a conclusion. A proceeding must be "initiated." To initiate, which comes from the
Latin word initium, means to begin. On the other hand, proceeding is a progressive noun. It has a beginning,
a middle, and an end. It takes place not in the Senate but in the House and consists of several steps: (1)
there is the filing of a verified complaint either by a Member of the House of Representatives or by a private
citizen endorsed by a Member of the House of the Representatives; (2) there is the processing of this
complaint by the proper Committee which may either reject the complaint or uphold it; (3) whether the
resolution of the Committee rejects or upholds the complaint, the resolution must be forwarded to the House
for further processing; and (4) there is the processing of the same complaint by the House of
Representatives which either affirms a favorable resolution of the Committee or overrides a contrary
resolution by a vote of one-third of all the members. If at least one third of all the Members upholds the
complaint, Articles of Impeachment are prepared and transmitted to the Senate. It is at this point that the
House "initiates an impeachment case." It is at this point that an impeachable public official is successfully
impeached. That is, he or she is successfully charged with an impeachment "case" before the Senate as
impeachment court.

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

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

Father Bernas concludes that when Section 3 (5) says, "No impeachment proceeding shall be initiated
against the same official more than once within a period of one year," it means that no second verified
complaint may be accepted and referred to the Committee on Justice for action. By his explanation, this
interpretation is founded on the common understanding of the meaning of "to initiate" which means to begin.
He reminds that the Constitution is ratified by the people, both ordinary and sophisticated, as they
understand it; and that ordinary people read ordinary meaning into ordinary words and not abstruse meaning,
they ratify words as they understand it and not as sophisticated lawyers confuse it.

To the argument that only the House of Representatives as a body can initiate impeachment proceedings
because Section 3 (1) says "The House of Representatives shall have the exclusive power to initiate all

46 |C o n s t i t u t i o n a l L a w I P a g e 1
cases of impeachment," This is a misreading of said provision and is contrary to the principle of reddendo
singula singulis by equating "impeachment cases" with "impeachment proceeding."

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

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

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

In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could not use contemporaneous
construction as an aid in the interpretation of Sec.3 (5) of Article XI, citing Vera v. Avelino147 wherein this
Court stated that "their personal opinions (referring to Justices who were delegates to the Constitution
Convention) on the matter at issue expressed during this Court's our deliberations stand on a different footing
from the properly recorded utterances of debates and proceedings." Further citing said case, he states that
this Court likened the former members of the Constitutional Convention to actors who are so absorbed in
their emotional roles that intelligent spectators may know more about the real meaning because of the latter's
balanced perspectives and disinterestedness.148

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

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

Section 3 (8) of Article XI provides that "The Congress shall promulgate its rules on impeachment to
effectively carry out the purpose of this section." Clearly, its power to promulgate its rules on impeachment is
limited by the phrase "to effectively carry out the purpose of this section." Hence, these rules cannot

47 |C o n s t i t u t i o n a l L a w I P a g e 1
contravene the very purpose of the Constitution which said rules were intended to effectively carry out.
Moreover, Section 3 of Article XI clearly provides for other specific limitations on its power to make rules, viz:

Section 3. (1) x x x

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

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

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

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

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

In Osmeña v. Pendatun,149 this Court held that it is within the province of either House of Congress to
interpret its rules and that it was the best judge of what constituted "disorderly behavior" of its members.
However, in Paceta v. Secretary of the Commission on Appointments,150 Justice (later Chief Justice) Enrique
Fernando, speaking for this Court and quoting Justice Brandeis in United States v. Smith,151 declared that
where the construction to be given to a rule affects persons other than members of the Legislature, the
question becomes judicial in nature. In Arroyo v. De Venecia,152 quoting United States v. Ballin, Joseph &
Co.,153 Justice Vicente Mendoza, speaking for this Court, held that while the Constitution empowers each
house to determine its rules of proceedings, it may not by its rules ignore constitutional restraints or violate
fundamental rights, and further that there should be a reasonable relation between the mode or method of
proceeding established by the rule and the result which is sought to be attained. It is only within these
limitations that all matters of method are open to the determination of the Legislature. In the same case
of Arroyo v. De Venecia, Justice Reynato S. Puno, in his Concurring and Dissenting Opinion, was even more
emphatic as he stressed that in the Philippine setting there is even more reason for courts to inquire into the
validity of the Rules of Congress, viz:

With due respect, I do not agree that the issues posed by the petitioner are non-justiciable.
Nor do I agree that we will trivialize the principle of separation of power if we assume

48 |C o n s t i t u t i o n a l L a w I P a g e 1
jurisdiction over he case at bar. Even in the United States, the principle of separation of power is
no longer an impregnable impediment against the interposition of judicial power on cases involving
breach of rules of procedure by legislators.

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

"x x x

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

Rule XV

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

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

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

49 |C o n s t i t u t i o n a l L a w I P a g e 1
 xxx

In the Philippine setting, there is a more compelling reason for courts to categorically reject
the political question defense when its interposition will cover up abuse of power. For
section 1, Article VIII of our Constitution was intentionally cobbled to empower courts "x x x
to determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the government." This
power is new and was not granted to our courts in the 1935 and 1972 Constitutions. It was not
also xeroxed from the US Constitution or any foreign state constitution. The CONCOM
granted this enormous power to our courts in view of our experience under martial law
where abusive exercises of state power were shielded from judicial scrutiny by the misuse
of the political question doctrine. Led by the eminent former Chief Justice Roberto Concepcion,
the CONCOM expanded and sharpened the checking powers of the judiciary vis-à-vis the
Executive and the Legislative departments of government.155

xxx

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

xxx

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

xxx

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

50 |C o n s t i t u t i o n a l L a w I P a g e 1
 I urge my brethren in the Court to give due and serious consideration to this new constitutional
provision as the case at bar once more calls us to define the parameters of our power to review
violations of the rules of the House. We will not be true to our trust as the last bulwark against
government abuses if we refuse to exercise this new power or if we wield it with timidity. To
be sure, it is this exceeding timidity to unsheathe the judicial sword that has increasingly
emboldened other branches of government to denigrate, if not defy, orders of our
courts. In Tolentino, I endorsed the view of former Senator Salonga that this novel provision
stretching the latitude of judicial power is distinctly Filipino and its interpretation should not be
depreciated by undue reliance on inapplicable foreign jurisprudence. In resolving the case at bar,
the lessons of our own history should provide us the light and not the experience of
foreigners.157 (Italics in the original emphasis and underscoring supplied)

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

Neither may respondent House of Representatives' rely on Nixon v. US158 as basis for arguing that this Court
may not decide on the constitutionality of Sections 16 and 17 of the House Impeachment Rules. As already
observed, the U.S. Federal Constitution simply provides that "the House of Representatives shall have the
sole power of impeachment." It adds nothing more. It gives no clue whatsoever as to how this "sole power" is
to be exercised. No limitation whatsoever is given. Thus, the US Supreme Court concluded that there was a
textually demonstrable constitutional commitment of a constitutional power to the House of Representatives.
This reasoning does not hold with regard to impeachment power of the Philippine House of Representatives
since our Constitution, as earlier enumerated, furnishes several provisions articulating how that "exclusive
power" is to be exercised.

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

Validity of the Second Impeachment Complaint

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

In fine, considering that the first impeachment complaint, was filed by former President Estrada against Chief
Justice Hilario G. Davide, Jr., along with seven associate justices of this Court, on June 2, 2003 and referred
to the House Committee on Justice on August 5, 2003, the second impeachment complaint filed by

51 |C o n s t i t u t i o n a l L a w I P a g e 1
Representatives Gilberto C. Teodoro, Jr. and Felix William Fuentebella against the Chief Justice on October
23, 2003 violates the constitutional prohibition against the initiation of impeachment proceedings against the
same impeachable officer within a one-year period.

Conclusion

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

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

This Court did not heed the call to adopt a hands-off stance as far as the question of the constitutionality of
initiating the impeachment complaint against Chief Justice Davide is concerned. To reiterate what has been
already explained, the Court found the existence in full of all the requisite conditions for its exercise of its
constitutionally vested power and duty of judicial review over an issue whose resolution precisely called for
the construction or interpretation of a provision of the fundamental law of the land. What lies in here is an
issue of a genuine constitutional material which only this Court can properly and competently address and
adjudicate in accordance with the clear-cut allocation of powers under our system of government. Face-to-
face thus with a matter or problem that squarely falls under the Court's jurisdiction, no other course of action
can be had but for it to pass upon that problem head on.

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

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

52 |C o n s t i t u t i o n a l L a w I P a g e 1
legislative of their own powers to bring about ultimately the beneficent effects of having founded and ordered
our society upon the rule of law.

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

The institution that is the Supreme Court together with all other courts has long held and been entrusted with
the judicial power to resolve conflicting legal rights regardless of the personalities involved in the suits or
actions. This Court has dispensed justice over the course of time, unaffected by whomsoever stood to benefit
or suffer therefrom, unfraid by whatever imputations or speculations could be made to it, so long as it
rendered judgment according to the law and the facts. Why can it not now be trusted to wield judicial power
in these petitions just because it is the highest ranking magistrate who is involved when it is an
incontrovertible fact that the fundamental issue is not him but the validity of a government branch's official act
as tested by the limits set by the Constitution? Of course, there are rules on the inhibition of any member of
the judiciary from taking part in a case in specified instances. But to disqualify this entire institution now from
the suit at bar is to regard the Supreme Court as likely incapable of impartiality when one of its members is a
party to a case, which is simply a non sequitur.

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

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

WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment Proceedings which
were approved by the House of Representatives on November 28, 2001 are unconstitutional. Consequently,
the second impeachment complaint against Chief Justice Hilario G. Davide, Jr. which was filed by
Representatives Gilberto C. Teodoro, Jr. and Felix William B. Fuentebella with the Office of the Secretary
General of the House of Representatives on October 23, 2003 is barred under paragraph 5, section 3 of
Article XI of the Constitution.

SO ORDERED.

53 |C o n s t i t u t i o n a l L a w I P a g e 1
Bellosillo and Tinga, JJ., see separate opinion.
Puno, and Ynares-Santiago, J., see concurring and dissenting opinion.
Vitug, Panganiban, Sandoval-Gutierrez and Callejo, Sr., JJ., see separate concurring opinion.
Quisumbing, J., concurring separate opinion received.
Carpio, J., concur.
Austria-Martinez, J., concur in the majority opinion and in the separate opinion of J. Vitug.
Corona, J., will write a separate concurring opinion.
Azcuna, J., concur in the separate opinion.

54 |C o n s t i t u t i o n a l L a w I P a g e 1
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-28196 November 9, 1967

RAMON A. GONZALES, petitioner,

vs.
COMMISSION ON ELECTIONS, DIRECTOR OF PRINTING and AUDITOR GENERAL, respondents.

G.R. No. L-28224 November 9, 1967

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.

No. 28196:
Ramon A. Gonzales for and in his own behalf as petitioner.
Juan T. David as amicus curiae
Office of the Solicitor General for respondents.

No. 28224:
Salvador Araneta for petitioner.
Office of the Solicitor General for respondent.

CONCEPCION, C.J.:

G. R. No. L-28196 is an original action for prohibition, with preliminary injunction.

Petitioner therein prays for judgment:

1) Restraining: (a) the Commission on Elections from enforcing Republic Act No. 4913, or from performing
any act that will result in the holding of the plebiscite for the ratification of the constitutional amendments
proposed in Joint Resolutions Nos. 1 and 3 of the two Houses of Congress of the Philippines, approved on
March 16, 1967; (b) the Director of Printing from printing ballots, pursuant to said Act and Resolutions; and
(c) the Auditor General from passing in audit any disbursement from the appropriation of funds made in said
Republic Act No. 4913; and

2) declaring said Act unconstitutional and void.

The main facts are not disputed. On March 16, 1967, the Senate and the House of Representatives passed
the following resolutions:

55 |C o n s t i t u t i o n a l L a w I P a g e 1
1. R. B. H. (Resolution of Both Houses) No. 1, proposing that Section 5, Article VI, of the Constitution of the
Philippines, be amended so as to increase the membership of the House of Representatives from a
maximum of 120, as provided in the present Constitution, to a maximum of 180, to be apportioned among the
several provinces as nearly as may be according to the number of their respective inhabitants, although each
province shall have, at least, one (1) member;

2. R. B. H. No. 2, calling a convention to propose amendments to said Constitution, the convention to be

composed of two (2) elective delegates from each representative district, to be "elected in the general
elections to be held on the second Tuesday of November, 1971;" and

3. R. B. H. No. 3, proposing that Section 16, Article VI, of the same Constitution, be amended so as to
authorize Senators and members of the House of Representatives to become delegates to the
aforementioned constitutional convention, without forfeiting their respective seats in Congress.

Subsequently, Congress passed a bill, which, upon approval by the President, on June 17, 1967, became
Republic Act No. 4913, providing that the amendments to the Constitution proposed in the aforementioned
Resolutions No. 1 and 3 be submitted, for approval by the people, at the general elections which shall be
held on November 14, 1967.

The petition in L-28196 was filed on October 21, 1967. At the hearing thereof, on October 28, 1967, the
Solicitor General appeared on behalf of respondents. Moreover, Atty. Juan T. David and counsel for the
Philippine Constitution Association — hereinafter referred to as the PHILCONSA — were allowed to argue
as amici curiae. Said counsel for the PHILCONSA, Dr. Salvador Araneta, likewise prayed that the decision in
this case be deferred until after a substantially identical case brought by said organization before the
Commission on Elections,1 which was expected to decide it any time, and whose decision would, in all
probability, be appealed to this Court — had been submitted thereto for final determination, for a joint
decision on the identical issues raised in both cases. In fact, on October 31, 1967, the PHILCONSA filed with
this Court the petition in G. R. No. L-28224, for review by certiorari of the resolution of the Commission on
Elections2 dismissing the petition therein. The two (2) cases were deemed submitted for decision on
November 8, 1967, upon the filing of the answer of respondent, the memorandum of the petitioner and the
reply memorandum of respondent in L-28224.

Ramon A. Gonzales, the petitioner in L-28196, is admittedly a Filipino citizen, a taxpayer, and a voter. He
claims to have instituted case L-28196 as a class unit, for and in behalf of all citizens, taxpayers, and voters
similarly situated. Although respondents and the Solicitor General have filed an answer denying the truth of
this allegation, upon the ground that they have no knowledge or information to form a belief as to the truth
thereof, such denial would appear to be a perfunctory one. In fact, at the hearing of case L-28196, the
Solicitor General expressed himself in favor of a judicial determination of the merits of the issued raised in
said case.

The PHILCONSA, petitioner in L-28224, is admittedly a corporation duly organized and existing under the
laws of the Philippines, and a civic, non-profit and non-partisan organization the objective of which is to
uphold the rule of law in the Philippines and to defend its Constitution against erosions or onslaughts from
whatever source. Despite his aforementioned statement in L-28196, in his answer in L-28224 the Solicitor
General maintains that this Court has no jurisdiction over the subject-matter of L-28224, upon the ground that

56 |C o n s t i t u t i o n a l L a w I P a g e 1
the same is "merely political" as held in Mabanag vs. Lopez Vito.3 Senator Arturo M. Tolentino, who
appeared before the Commission on Elections and filed an opposition to the PHILCONSA petition therein,
was allowed to appear before this Court and objected to said petition upon the ground: a) that the Court has
no jurisdiction either to grant the relief sought in the petition, or to pass upon the legality of the composition of
the House of Representatives; b) that the petition, if granted, would, in effect, render in operational the
legislative department; and c) that "the failure of Congress to enact a valid reapportionment law . . . does not
have the legal effect of rendering illegal the House of Representatives elected thereafter, nor of rendering its
acts null and void."

JURISDICTION

As early as Angara vs. Electoral Commission,4 this Court — speaking through one of the leading members of
the Constitutional Convention and a respected professor of Constitutional Law, Dr. Jose P. Laurel —
declared that "the judicial department is the only constitutional organ which can be called upon to determine
the proper allocation of powers between the several departments and among the integral or constituent units
thereof." It is true that in Mabanag vs. Lopez Vito,5 this Court characterizing the issue submitted thereto as a
political one, declined to pass upon the question whether or not a given number of votes cast in Congress in
favor of a proposed amendment to the Constitution — which was being submitted to the people for
ratification — satisfied the three-fourths vote requirement of the fundamental law. The force of this precedent
has been weakened, however, by Suanes vs. Chief Accountant of the Senate,6 Avelino vs. Cuenco,7 Tañada
vs. Cuenco,8 and Macias vs. Commission on Elections.9In the first, we held that the officers and employees
of the Senate Electoral Tribunal are under its supervision and control, not of that of the Senate President, as
claimed by the latter; in the second, this Court proceeded to determine the number of Senators necessary for
a quorum in the Senate; in the third, we nullified the election, by Senators belonging to the party having the
largest number of votes in said chamber, purporting to act on behalf of the party having the second largest
number of votes therein, of two (2) Senators belonging to the first party, as members, for the second party, of
the, Senate Electoral Tribunal; and in the fourth, we declared unconstitutional an act of Congress purporting
to apportion the representative districts for the House of Representatives, upon the ground that the
apportionment had not been made as may be possible according to the number of inhabitants of each
province. Thus we rejected the theory, advanced in these four (4) cases, that the issues therein raised were
political questions the determination of which is beyond judicial review.

Indeed, the power to amend the Constitution or to propose amendments thereto is not included in the
general grant of legislative powers to Congress.10 It is part of the inherent powers of the people — as the
repository of sovereignty in a republican state, such as ours11 — to make, and, hence, to amend their own
Fundamental Law. Congress may propose amendments to the Constitution merely because the same
explicitly grants such power.12 Hence, when exercising the same, it is said that Senators and Members of the
House of Representatives act, not as members of Congress, but as component elements of a constituent
assembly. When acting as such, the members of Congress derive their authority from the Constitution, unlike
the people, when performing the same function,13 for their authority does not emanate from the Constitution
— they are the very source of all powers of government, including the Constitution itself .

Since, when proposing, as a constituent assembly, amendments to the Constitution, the members of
Congress derive their authority from the Fundamental Law, it follows, necessarily, that they do not have the
final say on whether or not their acts are within or beyond constitutional limits. Otherwise, they could brush
aside and set the same at naught, contrary to the basic tenet that ours is a government of laws, not of men,

57 |C o n s t i t u t i o n a l L a w I P a g e 1
and to the rigid nature of our Constitution. Such rigidity is stressed by the fact that, the Constitution expressly
confers upon the Supreme Court,14 the power to declare a treaty unconstitutional,15 despite the eminently
political character of treaty-making power.

In short, the issue whether or not a Resolution of Congress — acting as a constituent assembly — violates
the Constitution essentially justiciable, not political, and, hence, subject to judicial review, and, to the extent
that this view may be inconsistent with the stand taken in Mabanag vs. Lopez Vito,16 the latter should be
deemed modified accordingly. The Members of the Court are unanimous on this point.

THE MERITS

Section 1 of Article XV of the Constitution, as amended, reads:

The Congress in joint session assembled by a vote of three-fourths of all the Members of the
Senate and of the House of Representatives voting separately, may propose amendments to this
Constitution or call a convention for that purpose. Such amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast at an election at which the amendments
are submitted to the people for their ratification.

Pursuant to this provision, amendments to the Constitution may be proposed, either by Congress, or by a
convention called by Congress for that purpose. In either case, the vote of "three-fourths of all the members
of the Senate and of the House of Representatives voting separately" is necessary. And, "such amendments
shall be valid as part of" the "Constitution when approved by a majority of the votes cast at an election at
which the amendments are submitted to the people for their ratification."

In the cases at bar, it is conceded that the R. B. H. Nos. 1 and 3 have been approved by a vote of three-
fourths of all the members of the Senate and of the House of Representatives voting separately. This,
notwithstanding, it is urged that said resolutions are null and void because:

1. The Members of Congress, which approved the proposed amendments, as well as the resolution calling a
convention to propose amendments, are, at best, de facto Congressmen;

2. Congress may adopt either one of two alternatives propose — amendments or call a convention therefore
but may not avail of both — that is to say, propose amendment and call a convention — at the same time;

3. The election, in which proposals for amendment to the Constitution shall be submitted for ratification, must
be a special election, not a general election, in which officers of the national and local governments — such
as the elections scheduled to be held on November 14, 1967 — will be chosen; and

4. The spirit of the Constitution demands that the election, in which proposals for amendment shall be
submitted to the people for ratification, must be held under such conditions — which, allegedly, do not exist
— as to give the people a reasonable opportunity to have a fair grasp of the nature and implications of said
amendments.

58 |C o n s t i t u t i o n a l L a w I P a g e 1
Legality of Congress and Legal Status of the Congressmen

The first objection is based upon Section 5, Article VI, of the Constitution, which provides:

The House of Representatives shall be composed of not more than one hundred and twenty
Members who shall be apportioned among the several provinces as nearly as may be according to
the number of their respective inhabitants, but each province shall have at least one Member. The
Congress shall by law make an apportionment within three years after the return of every
enumeration, and not otherwise. Until such apportionment shall have been made, the House of
Representatives shall have the same number of Members as that fixed by law for the National
Assembly, who shall be elected by the qualified electors from the present Assembly districts. Each
representative district shall comprise, as far as practicable, contiguous and compact territory.

It is urged that the last enumeration or census took place in 1960; that, no apportionment having been made
within three (3) years thereafter, the Congress of the Philippines and/or the election of its Members became
illegal; that Congress and its Members, likewise, became a de facto Congress and/or de facto congressmen,
respectively; and that, consequently, the disputed Resolutions, proposing amendments to the Constitution,
as well as Republic Act No. 4913, are null and void.

It is not true, however, that Congress has not made an apportionment within three years after the
enumeration or census made in 1960. It did actually pass a bill, which became Republic Act No.
3040,17 purporting to make said apportionment. This Act was, however, declared unconstitutional, upon the
ground that the apportionment therein undertaken had not been made according to the number of inhabitants
of the different provinces of the Philippines.18

Moreover, we are unable to agree with the theory that, in view of the failure of Congress to make a valid
apportionment within the period stated in the Constitution, Congress became an "unconstitutional Congress"
and that, in consequence thereof, the Members of its House of Representatives are de facto officers. The
major premise of this process of reasoning is that the constitutional provision on "apportionment within three
years after the return of every enumeration, and not otherwise," is mandatory. The fact that Congress is
under legal obligation to make said apportionment does not justify, however, the conclusion that failure to
comply with such obligation rendered Congress illegal or unconstitutional, or that its Members have
become de facto officers.

It is conceded that, since the adoption of the Constitution in 1935, Congress has not made a valid
apportionment as required in said fundamental law. The effect of this omission has been envisioned in the
Constitution, pursuant to which:

. . . Until such apportionment shall have been made, the House of Representatives shall have the
same number of Members as that fixed by law for the National Assembly, who shall be elected by
the qualified electors from the present Assembly districts. . . . .

The provision does not support the view that, upon the expiration of the period to make the apportionment, a
Congress which fails to make it is dissolved or becomes illegal. On the contrary, it implies necessarily that

59 |C o n s t i t u t i o n a l L a w I P a g e 1
Congress shall continue to function with the representative districts existing at the time of the expiration of
said period.

It is argued that the above-quoted provision refers only to the elections held in 1935. This theory assumes
that an apportionment had to be made necessarily before the first elections to be held after the inauguration
of the Commonwealth of the Philippines, or in 1938.19 The assumption, is, however, unwarranted, for there
had been no enumeration in 1935, and nobody could foretell when it would be made. Those who drafted and
adopted the Constitution in 1935 could be certain, therefore, that the three-year period, after the earliest
possible enumeration, would expire after the elections in 1938.

What is more, considering that several provisions of the Constitution, particularly those on the legislative
department, were amended in 1940, by establishing a bicameral Congress, those who drafted and adopted
said amendment, incorporating therein the provision of the original Constitution regarding the apportionment
of the districts for representatives, must have known that the three-year period therefor would expire after the
elections scheduled to be held and actually held in 1941.

Thus, the events contemporaneous with the framing and ratification of the original Constitution in 1935 and of
the amendment thereof in 1940 strongly indicate that the provision concerning said apportionment and the
effect of the failure to make it were expected to be applied to conditions obtaining after the elections in 1935
and 1938, and even after subsequent elections.

Then again, since the report of the Director of the Census on the last enumeration was submitted to the
President on November 30, 1960, it follows that the three-year period to make the apportionment did not
expire until 1963, or after the Presidential elections in 1961. There can be no question, therefore, that the
Senate and the House of Representatives organized or constituted on December 30, 1961, were de
jure bodies, and that the Members thereof were de jure officers. Pursuant to the theory of petitioners herein,
upon expiration of said period of three years, or late in 1963, Congress became illegal and its Members, or at
least, those of the House of Representatives, became illegal holder of their respective offices, and were de
facto officers.

Petitioners do not allege that the expiration of said three-year period without a reapportionment, had the
effect of abrogating or repealing the legal provision creating Congress, or, at least, the House of
Representatives, and are not aware of any rule or principle of law that would warrant such conclusion.
Neither do they allege that the term of office of the members of said House automatically expired or that
they ipso facto forfeited their seats in Congress, upon the lapse of said period for reapportionment. In fact,
neither our political law, nor our law on public officers, in particular, supports the view that failure to discharge
a mandatory duty, whatever it may be, would automatically result in the forfeiture of an office, in the absence
of a statute to this effect.

Similarly, it would seem obvious that the provision of our Election Law relative to the election of Members of
Congress in 1965 were not repealed in consequence of the failure of said body to make an apportionment
within three (3) years after the census of 1960. Inasmuch as the general elections in 1965 were presumably
held in conformity with said Election Law, and the legal provisions creating Congress — with a House of
Representatives composed of members elected by qualified voters of representative districts as they existed
at the time of said elections — remained in force, we can not see how said Members of the House of

60 |C o n s t i t u t i o n a l L a w I P a g e 1
Representatives can be regarded as de facto officers owing to the failure of their predecessors in office to
make a reapportionment within the period aforementioned.

Upon the other hand, the Constitution authorizes the impeachment of the President, the Vice-President, the
Justices of the Supreme Court and the Auditor General for, inter alia, culpable violation of the
Constitution,20 the enforcement of which is, not only their mandatory duty, but also, their main function. This
provision indicates that, despite the violation of such mandatory duty, the title to their respective offices
remains unimpaired, until dismissal or ouster pursuant to a judgment of conviction rendered in accordance
with Article IX of the Constitution. In short, the loss of office or the extinction of title thereto is not automatic.

Even if we assumed, however, that the present Members of Congress are merely de facto officers, it would
not follow that the contested resolutions and Republic Act No. 4913 are null and void. In fact, the main
reasons for the existence of the de facto doctrine is that public interest demands that acts of persons holding,
under color of title, an office created by a valid statute be, likewise, deemed valid insofar as the public — as
distinguished from the officer in question — is concerned.21 Indeed, otherwise, those dealing with officers
and employees of the Government would be entitled to demand from them satisfactory proof of their title to
the positions they hold, before dealing with them, or before recognizing their authority or obeying their
commands, even if they should act within the limits of the authority vested in their respective offices,
positions or employments.22 One can imagine this great inconvenience, hardships and evils that would result
in the absence of the de facto doctrine.

As a consequence, the title of a de facto officer cannot be assailed collaterally.23 It may not be contested
except directly, by quo warranto proceedings. Neither may the validity of his acts be questioned upon the
ground that he is merely a de facto officer.24 And the reasons are obvious: (1) it would be an indirect inquiry
into the title to the office; and (2) the acts of a de facto officer, if within the competence of his office, are valid,
insofar as the public is concerned.

It is argued that the foregoing rules do not apply to the cases at bar because the acts therein involved have
not been completed and petitioners herein are not third parties. This pretense is untenable. It is inconsistent
with Tayko vs. Capistrano.25 In that case, one of the parties to a suit being heard before Judge Capistrano
objected to his continuing to hear the case, for the reason that, meanwhile, he had reached the age of
retirement. This Court held that the objection could not be entertained, because the Judge was at least, a de
facto Judge, whose title can not be assailed collaterally. It should be noted that Tayko was not a third party
insofar as the Judge was concerned. Tayko was one of the parties in the aforementioned suit. Moreover,
Judge Capistrano had not, as yet, finished hearing the case, much less rendered decision therein. No rights
had vested in favor of the parties, in consequence of the acts of said Judge. Yet, Tayko's objection was
overruled. Needless to say, insofar as Congress is concerned, its acts, as regards the Resolutions herein
contested and Republic Act No. 4913, are complete. Congress has nothing else to do in connection
therewith.

The Court is, also, unanimous in holding that the objection under consideration is untenable.

Available Alternatives to Congress

61 |C o n s t i t u t i o n a l L a w I P a g e 1
Atty. Juan T. David, as amicus curiae, maintains that Congress may either propose amendments to the
Constitution or call a convention for that purpose, but it can not do both, at the same time. This theory is
based upon the fact that the two (2) alternatives are connected in the Constitution by the disjunctive "or."
Such basis is, however, a weak one, in the absence of other circumstances — and none has brought to our
attention — supporting the conclusion drawn by the amicus curiae. In fact, the term "or" has, oftentimes,
been held to mean "and," or vice-versa, when the spirit or context of the law warrants it.26

It is, also, noteworthy that R. B. H. Nos. 1 and 3 propose amendments to the constitutional provision on
Congress, to be submitted to the people for ratification on November 14, 1967, whereas R. B. H. No. 2 calls
for a convention in 1971, to consider proposals for amendment to the Constitution, in general. In other words,
the subject-matter of R. B. H. No. 2 is different from that of R B. H. Nos. 1 and 3. Moreover, the amendments
proposed under R. B. H. Nos. 1 and 3, will be submitted for ratification several years before those that may
be proposed by the constitutional convention called in R. B. H. No. 2. Again, although the three (3)
resolutions were passed on the same date, they were taken up and put to a vote separately, or one after the
other. In other words, they were not passed at the same time.

In any event, we do not find, either in the Constitution, or in the history thereof anything that would negate the
authority of different Congresses to approve the contested Resolutions, or of the same Congress to pass the
same in, different sessions or different days of the same congressional session. And, neither has any
plausible reason been advanced to justify the denial of authority to adopt said resolutions on the same day.

Counsel ask: Since Congress has decided to call a constitutional convention to propose amendments, why
not let the whole thing be submitted to said convention, instead of, likewise, proposing some specific
amendments, to be submitted for ratification before said convention is held? The force of this argument must
be conceded. but the same impugns the wisdom of the action taken by Congress, not its authority to take it.
One seeming purpose thereof to permit Members of Congress to run for election as delegates to the
constitutional convention and participate in the proceedings therein, without forfeiting their seats in Congress.
Whether or not this should be done is a political question, not subject to review by the courts of justice.

On this question there is no disagreement among the members of the Court.

May Constitutional Amendments Be Submitted for Ratification in a General Election?

Article XV of the Constitution provides:

. . . The Congress in joint session assembled, by a vote of three-fourths of all the Members of the
Senate and of the House of Representatives voting separately, may propose amendments to this
Constitution or call a contention for that purpose. Such amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast at an election at which the amendments
are submitted to the people for their ratification.

There is in this provision nothing to indicate that the "election" therein referred to is a "special," not a general,
election. The circumstance that three previous amendments to the Constitution had been submitted to the
people for ratification in special elections merely shows that Congress deemed it best to do so under the

62 |C o n s t i t u t i o n a l L a w I P a g e 1
circumstances then obtaining. It does not negate its authority to submit proposed amendments for ratification
in general elections.

It would be better, from the viewpoint of a thorough discussion of the proposed amendments, that the same
be submitted to the people's approval independently of the election of public officials. And there is no denying
the fact that an adequate appraisal of the merits and demerits proposed amendments is likely to be
overshadowed by the great attention usually commanded by the choice of personalities involved in general
elections, particularly when provincial and municipal officials are to be chosen. But, then, these
considerations are addressed to the wisdom of holding a plebiscite simultaneously with the election of public
officer. They do not deny the authority of Congress to choose either alternative, as implied in the term
"election" used, without qualification, in the abovequoted provision of the Constitution. Such authority
becomes even more patent when we consider: (1) that the term "election," normally refers to the choice or
selection of candidates to public office by popular vote; and (2) that the word used in Article V of the
Constitution, concerning the grant of suffrage to women is, not "election," but "plebiscite."

Petitioners maintain that the term "election," as used in Section 1 of Art. XV of the Constitution, should be
construed as meaning a special election. Some members of the Court even feel that said term ("election")
refers to a "plebiscite," without any "election," general or special, of public officers. They opine that
constitutional amendments are, in general, if not always, of such important, if not transcendental and vital
nature as to demand that the attention of the people be focused exclusively on the subject-matter thereof, so
that their votes thereon may reflect no more than their intelligent, impartial and considered view on the merits
of the proposed amendments, unimpaired, or, at least, undiluted by extraneous, if not insidious factors, let
alone the partisan political considerations that are likely to affect the selection of elective officials.

This, certainly, is a situation to be hoped for. It is a goal the attainment of which should be promoted. The
ideal conditions are, however, one thing. The question whether the Constitution forbids the submission of
proposals for amendment to the people except under such conditions, is another thing. Much as the writer
and those who concur in this opinion admire the contrary view, they find themselves unable to subscribe
thereto without, in effect, reading into the Constitution what they believe is not written thereon and can not
fairly be deduced from the letter thereof, since the spirit of the law should not be a matter of sheer
speculation.

The majority view — although the votes in favor thereof are insufficient to declare Republic Act No. 4913
unconstitutional — as ably set forth in the opinion penned by Mr. Justice Sanchez, is, however, otherwise.

Would the Submission now of the Contested Amendments to the People Violate the Spirit of the
Constitution?

It should be noted that the contested Resolutions were approved on March 16, 1967, so that, by November
14, 1967, our citizenry shall have had practically eight (8) months to be informed on the amendments in
question. Then again, Section 2 of Republic Act No. 4913 provides:

(1) that "the amendments shall be published in three consecutive issues of the Official Gazette, at least
twenty days prior to the election;"

63 |C o n s t i t u t i o n a l L a w I P a g e 1
(2) that "a printed copy of the proposed amendments shall be posted in a conspicuous place in every
municipality, city and provincial office building and in every polling place not later than October 14, 1967,"
and that said copy "shall remain posted therein until after the election;"

(3) that "at least five copies of said amendment shall be kept in each polling place, to be made available for
examination by the qualified electors during election day;"

(4) that "when practicable, copies in the principal native languages, as may be determined by the
Commission on Elections, shall be kept in each polling place;"

(5) that "the Commission on Elections shall make available copies of said amendments in English, Spanish
and, whenever practicable, in the principal native languages, for free distributing:" and

(6) that the contested Resolutions "shall be printed in full" on the back of the ballots which shall be used on
November 14, 1967.

We are not prepared to say that the foregoing measures are palpably inadequate to comply with the
constitutional requirement that proposals for amendment be "submitted to the people for their ratification,"
and that said measures are manifestly insufficient, from a constitutional viewpoint, to inform the people of the
amendment sought to be made.

These were substantially the same means availed of to inform the people of the subject submitted to them for
ratification, from the original Constitution down to the Parity Amendment. Thus, referring to the original
Constitution, Section 1 of Act No. 4200, provides:

Said Constitution, with the Ordinance appended thereto, shall be published in the Official Gazette,
in English and in Spanish, for three consecutive issues at least fifteen days prior to said election,
and a printed copy of said Constitution, with the Ordinance appended thereto, shall be posted in a
conspicuous place in each municipal and provincial government office building and in each polling
place not later than the twenty-second day of April, nineteen hundred and thirty-five, and shall
remain posted therein continually until after the termination of the election. At least ten copies of
the Constitution with the Ordinance appended thereto, in English and in Spanish, shall be kept at
each polling place available for examination by the qualified electors during election day.
Whenever practicable, copies in the principal local dialects as may be determined by the Secretary
of the Interior shall also be kept in each polling place.

The provision concerning woman's suffrage is Section 1 of Commonwealth Act No. 34, reading:

Said Article V of the Constitution shall be published in the Official Gazette, in English and in
Spanish, for three consecutive issues at least fifteen days prior to said election, and the said Article
V shall be posted in a conspicuous place in each municipal and provincial office building and in
each polling place not later than the twenty-second day of April, nineteen and thirty-seven, and
shall remain posted therein continually until after the termination of the plebiscite. At least ten
copies of said Article V of the Constitution, in English and in Spanish, shall be kept at each polling
place available for examination by the qualified electors during the plebiscite. Whenever

64 |C o n s t i t u t i o n a l L a w I P a g e 1
 practicable, copies in the principal native languages, as may be determined by the Secretary of the
Interior, shall also be kept in each polling place.

Similarly, Section 2, Commonwealth Act No. 517, referring to the 1940 amendments, is of the following tenor:

The said amendments shall be published in English and Spanish in three consecutive issues of the
Official Gazette at least twenty days prior to the election. A printed copy thereof shall be posted in
a conspicuous place in every municipal, city, and provincial government office building and in every
polling place not later than May eighteen, nineteen hundred and forty, and shall remain posted
therein until after the election. At least ten copies of said amendments shall be kept in each polling
place to be made available for examination by the qualified electors during election day. When
practicable, copies in the principal native languages, as may be determined by the Secretary of the
Interior, shall also be kept therein.

As regards the Parity Amendment, Section 2 of Republic Act No. 73 is to the effect that:

The said amendment shall be published in English and Spanish in three consecutive issues of the
Official Gazette at least twenty days prior to the election. A printed copy thereof shall be posted in
a conspicuous place in every municipal, city, and provincial government office building and in every
polling place not later than February eleven, nineteen hundred and forty-seven, and shall remain
posted therein until after the election. At least, ten copies of the said amendment shall be kept in
each polling place to be made available for examination by the qualified electors during election
day. When practicable, copies in the principal native languages, as may be determined by the
Commission on Elections, shall also be kept in each polling place.

The main difference between the present situation and that obtaining in connection with the former proposals
does not arise from the law enacted therefor. The difference springs from the circumstance that the major
political parties had taken sides on previous amendments to the Constitution — except, perhaps, the
woman's suffrage — and, consequently, debated thereon at some length before the plebiscite took place.
Upon the other hand, said political parties have not seemingly made an issue on the amendments now being
contested and have, accordingly, refrained from discussing the same in the current political campaign. Such
debates or polemics as may have taken place — on a rather limited scale — on the latest proposals for
amendment, have been due principally to the initiative of a few civic organizations and some militant
members of our citizenry who have voiced their opinion thereon. A legislation cannot, however, be nullified
by reason of the failure of certain sectors of the community to discuss it sufficiently. Its constitutionality or
unconstitutionality depends upon no other factors than those existing at the time of the enactment thereof,
unaffected by the acts or omissions of law enforcing agencies, particularly those that take place
subsequently to the passage or approval of the law.

Referring particularly to the contested proposals for amendment, the sufficiency or insufficiency, from a
constitutional angle, of the submission thereof for ratification to the people on November 14, 1967, depends
— in the view of those who concur in this opinion, and who, insofar as this phase of the case, constitute the
minority — upon whether the provisions of Republic Act No. 4913 are such as to fairly apprise the people of
the gist, the main idea or the substance of said proposals, which is — under R. B. H. No. 1 — the increase of
the maximum number of seats in the House of Representatives, from 120 to 180, and — under R. B. H. No.

65 |C o n s t i t u t i o n a l L a w I P a g e 1
3 — the authority given to the members of Congress to run for delegates to the Constitutional Convention
and, if elected thereto, to discharge the duties of such delegates, without forfeiting their seats in Congress.
We — who constitute the minority — believe that Republic Act No. 4913 satisfies such requirement and that
said Act is, accordingly, constitutional.

A considerable portion of the people may not know how over 160 of the proposed maximum of
representative districts are actually apportioned by R. B. H. No. 1 among the provinces in the Philippines. It is
not improbable, however, that they are not interested in the details of the apportionment, or that a careful
reading thereof may tend in their simple minds, to impair a clear vision thereof. Upon the other hand, those
who are more sophisticated, may enlighten themselves sufficiently by reading the copies of the proposed
amendments posted in public places, the copies kept in the polling places and the text of contested
resolutions, as printed in full on the back of the ballots they will use.

It is, likewise, conceivable that as many people, if not more, may fail to realize or envisage the effect of R. B.
H. No. 3 upon the work of the Constitutional Convention or upon the future of our Republic. But, then, nobody
can foretell such effect with certainty. From our viewpoint, the provisions of Article XV of the Constitution are
satisfied so long as the electorate knows that R. B. H. No. 3 permits Congressmen to retain their seats as
legislators, even if they should run for and assume the functions of delegates to the Convention.

We are impressed by the factors considered by our distinguished and esteemed brethren, who opine
otherwise, but, we feel that such factors affect the wisdom of Republic Act No. 4913 and that of R. B. H. Nos.
1 and 3, not the authority of Congress to approve the same.

The system of checks and balances underlying the judicial power to strike down acts of the Executive or of
Congress transcending the confines set forth in the fundamental laws is not in derogation of the principle of
separation of powers, pursuant to which each department is supreme within its own sphere. The
determination of the conditions under which the proposed amendments shall be submitted to the people is
concededly a matter which falls within the legislative sphere. We do not believe it has been satisfactorily
shown that Congress has exceeded the limits thereof in enacting Republic Act No. 4913. Presumably, it
could have done something better to enlighten the people on the subject-matter thereof. But, then, no law is
perfect. No product of human endeavor is beyond improvement. Otherwise, no legislation would be
constitutional and valid. Six (6) Members of this Court believe, however, said Act and R. B. H. Nos. 1 and 3
violate the spirit of the Constitution.

Inasmuch as there are less than eight (8) votes in favor of declaring Republic Act 4913 and R. B. H. Nos. 1
and 3 unconstitutional and invalid, the petitions in these two (2) cases must be, as they are hereby, dismiss
and the writs therein prayed for denied, without special pronouncement as to costs. It is so ordered.

Makalintal and Bengzon, J.P., JJ., concur.

Fernando, J., concurs fully with the above opinion, adding a few words on the question of jurisdiction.

66 |C o n s t i t u t i o n a l L a w I P a g e 1
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 127325 March 19, 1997

MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA ISABEL ONGPIN, petitioners,
vs.
COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA & CARMEN PEDROSA, in their
capacities as founding members of the People's Initiative for Reforms, Modernization and Action
(PIRMA), respondents.

SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG KONSTITUSYON (DIK), MOVEMENT

OF ATTORNEYS FOR BROTHERHOOD INTEGRITY AND NATIONALISM, INC. (MABINI), INTEGRATED
BAR OF THE PHILIPPINES (IBP), and LABAN NG DEMOKRATIKONG PILIPINO (LABAN), petitioners-
intervenors.

DAVIDE, JR., J.:

The heart of this controversy brought to us by way of a petition for prohibition under Rule 65 of the Rules of
Court is the right of the people to directly propose amendments to the Constitution through the system
of initiative under Section 2 of Article XVII of the 1987 Constitution. Undoubtedly, this demands special
attention, as this system of initiative was unknown to the people of this country, except perhaps to a few
scholars, before the drafting of the 1987 Constitution. The 1986 Constitutional Commission itself, through the
original proponent1 and the main sponsor2 of the proposed Article on Amendments or Revision of the
Constitution, characterized this system as "innovative".3 Indeed it is, for both under the 1935 and 1973
Constitutions, only two methods of proposing amendments to, or revision of, the Constitution were
recognized, viz., (1) by Congress upon a vote of three-fourths of all its members and (2) by a constitutional
convention.4 For this and the other reasons hereafter discussed, we resolved to give due course to this
petition.

On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public respondent Commission on
Elections (hereafter, COMELEC) a "Petition to Amend the Constitution, to Lift Term Limits of Elective
Officials, by People's Initiative" (hereafter, Delfin Petition)5 wherein Delfin asked the COMELEC for an order

1. Fixing the time and dates for signature gathering all over the country;

67 |C o n s t i t u t i o n a l L a w I P a g e 1
 2. Causing the necessary publications of said Order and the attached "Petition for
Initiative on the 1987 Constitution, in newspapers of general and local circulation;

3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist

Petitioners and volunteers, in establishing signing stations at the time and on the dates
designated for the purpose.

Delfin alleged in his petition that he is a founding member of the Movement for People's Initiative, 6 a group of
citizens desirous to avail of the system intended to institutionalize people power; that he and the members of
the Movement and other volunteers intend to exercise the power to directly propose amendments to the
Constitution granted under Section 2, Article XVII of the Constitution; that the exercise of that power shall be
conducted in proceedings under the control and supervision of the COMELEC; that, as required in
COMELEC Resolution No. 2300, signature stations shall be established all over the country, with the
assistance of municipal election registrars, who shall verify the signatures affixed by individual signatories;
that before the Movement and other volunteers can gather signatures, it is necessary that the time and dates
to be designated for the purpose be first fixed in an order to be issued by the COMELEC; and that to
adequately inform the people of the electoral process involved, it is likewise necessary that the said order, as
well as the Petition on which the signatures shall be affixed, be published in newspapers of general and local
circulation, under the control and supervision of the COMELEC.

The Delfin Petition further alleged that the provisions sought to be amended are Sections 4 and 7 of Article
VI,7Section 4 of Article VII,8 and Section 8 of Article X9 of the Constitution. Attached to the petition is a copy
of a "Petition for Initiative on the 1987 Constitution" 10 embodying the proposed amendments which consist in
the deletion from the aforecited sections of the provisions concerning term limits, and with the following
proposition:

DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE

GOVERNMENT OFFICIALS, AMENDING FOR THE PURPOSE SECTIONS 4 AND 7 OF
ARTICLE VI, SECTION 4 OF ARTICLE VII, AND SECTION 8 OF ARTICLE X OF THE
1987 PHILIPPINE CONSTITUTION?

According to Delfin, the said Petition for Initiative will first be submitted to the people, and after it is signed by
at least twelve per cent of the total number of registered voters in the country it will be formally filed with the
COMELEC.

Upon the filing of the Delfin Petition, which was forthwith given the number UND 96-037 (INITIATIVE), the
COMELEC, through its Chairman, issued an Order 11 (a) directing Delfin "to cause the publication of the
petition, together with the attached Petition for Initiative on the 1987 Constitution (including the proposal,
proposed constitutional amendment, and the signature form), and the notice of hearing in three (3) daily
newspapers of general circulation at his own expense" not later than 9 December 1996; and (b) setting the
case for hearing on 12 December 1996 at 10:00 a.m.

At the hearing of the Delfin Petition on 12 December 1996, the following appeared: Delfin and Atty. Pete Q.
Quadra; representatives of the People's Initiative for Reforms, Modernization and Action (PIRMA);
intervenor-oppositor Senator Raul S. Roco, together with his two other lawyers, and representatives of, or

68 |C o n s t i t u t i o n a l L a w I P a g e 1
counsel for, the Integrated Bar of the Philippines (IBP), Demokrasya-Ipagtanggol ang Konstitusyon (DIK),
Public Interest Law Center, and Laban ng Demokratikong Pilipino (LABAN). 12 Senator Roco, on that same
day, filed a Motion to Dismiss the Delfin Petition on the ground that it is not the initiatory petition properly
cognizable by the COMELEC.

After hearing their arguments, the COMELEC directed Delfin and the oppositors to file their "memoranda
and/or oppositions/memoranda" within five days. 13

On 18 December 1996, the petitioners herein — Senator Miriam Defensor Santiago, Alexander Padilla, and
Maria Isabel Ongpin — filed this special civil action for prohibition raising the following arguments:

(1) The constitutional provision on people's initiative to amend the Constitution can only
be implemented by law to be passed by Congress. No such law has been passed; in
fact, Senate Bill No. 1290 entitled An Act Prescribing and Regulating Constitution
Amendments by People's Initiative, which petitioner Senator Santiago filed on 24
November 1995, is still pending before the Senate Committee on Constitutional
Amendments.

(2) It is true that R.A. No. 6735 provides for three systems of initiative, namely, initiative
on the Constitution, on statutes, and on local legislation. However, it failed to provide any
subtitle on initiative on the Constitution, unlike in the other modes of initiative, which are
specifically provided for in Subtitle II and Subtitle III. This deliberate omission indicates
that the matter of people's initiative to amend the Constitution was left to some future law.
Former Senator Arturo Tolentino stressed this deficiency in the law in his privilege
speech delivered before the Senate in 1994: "There is not a single word in that law which
can be considered as implementing [the provision on constitutional initiative]. Such
implementing provisions have been obviously left to a separate law.

(3) Republic Act No. 6735 provides for the effectivity of the law after publication in print
media. This indicates that the Act covers only laws and not constitutional amendments
because the latter take effect only upon ratification and not after publication.

(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern "the conduct
of initiative on the Constitution and initiative and referendum on national and local laws,
is ultra vires insofar as initiative on amendments to the Constitution is concerned, since
the COMELEC has no power to provide rules and regulations for the exercise of the right
of initiative to amend the Constitution. Only Congress is authorized by the Constitution to
pass the implementing law.

(5) The people's initiative is limited to amendments to the Constitution, not

to revision thereof. Extending or lifting of term limits constitutes a revision and is,
therefore, outside the power of the people's initiative.

69 |C o n s t i t u t i o n a l L a w I P a g e 1
 (6) Finally, Congress has not yet appropriated funds for people's initiative; neither the
COMELEC nor any other government department, agency, or office has realigned funds
for the purpose.

To justify their recourse to us via the special civil action for prohibition, the petitioners allege that in the event
the COMELEC grants the Delfin Petition, the people's initiative spearheaded by PIRMA would entail
expenses to the national treasury for general re-registration of voters amounting to at least P180 million, not
to mention the millions of additional pesos in expenses which would be incurred in the conduct of the
initiative itself. Hence, the transcendental importance to the public and the nation of the issues raised
demands that this petition for prohibition be settled promptly and definitely, brushing aside technicalities of
procedure and calling for the admission of a taxpayer's and legislator's suit. 14 Besides, there is no other
plain, speedy, and adequate remedy in the ordinary course of law.

On 19 December 1996, this Court (a) required the respondents to comment on the petition within a non-
extendible period of ten days from notice; and (b) issued a temporary restraining order, effective immediately
and continuing until further orders, enjoining public respondent COMELEC from proceeding with the Delfin
Petition, and private respondents Alberto and Carmen Pedrosa from conducting a signature drive for
people's initiative to amend the Constitution.

On 2 January 1997, private respondents, through Atty Quadra, filed their Comment 15 on the petition. They
argue therein that:

1. IT IS NOT TRUE THAT "IT WOULD ENTAIL EXPENSES TO THE NATIONAL

TREASURY FOR GENERAL REGISTRATION OF VOTERS AMOUNTING TO AT
LEAST PESOS: ONE HUNDRED EIGHTY MILLION (P180,000,000.00)" IF THE
"COMELEC GRANTS THE PETITION FILED BY RESPONDENT DELFIN BEFORE THE
COMELEC.

2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL GOVERNMENT

IF THE COMELEC GRANTS THE PETITION OF RESPONDENT DELFIN. ALL
EXPENSES IN THE SIGNATURE GATHERING ARE ALL FOR THE ACCOUNT OF
RESPONDENT DELFIN AND HIS VOLUNTEERS PER THEIR PROGRAM OF
ACTIVITIES AND EXPENDITURES SUBMITTED TO THE COMELEC. THE
ESTIMATED COST OF THE DAILY PER DIEM OF THE SUPERVISING SCHOOL
TEACHERS IN THE SIGNATURE GATHERING TO BE DEPOSITED and TO BE PAID
BY DELFIN AND HIS VOLUNTEERS IS P2,571,200.00;

3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE SIGNATURE

GATHERING WHICH BY LAW COMELEC IS DUTY BOUND "TO SUPERVISE
CLOSELY" PURSUANT TO ITS "INITIATORY JURISDICTION" UPHELD BY THE
HONORABLE COURT IN ITS RECENT SEPTEMBER 26, 1996 DECISION IN THE
CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO.
125416;

70 |C o n s t i t u t i o n a l L a w I P a g e 1
 4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING LAW
IMPLEMENTING THE POWER OF PEOPLE INITIATIVE TO PROPOSE AMENDMENTS
TO THE CONSTITUTION. SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO.
1290 IS A DUPLICATION OF WHAT ARE ALREADY PROVIDED FOR IN REP. ACT
NO. 6735;

5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991

PURSUANT TO REP. ACT 6735 WAS UPHELD BY THE HONORABLE COURT IN THE
RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY
METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416 WHERE THE
HONORABLE COURT SAID: "THE COMMISSION ON ELECTIONS CAN DO NO LESS
BY SEASONABLY AND JUDICIOUSLY PROMULGATING GUIDELINES AND RULES
FOR BOTH NATIONAL AND LOCAL USE, IN IMPLEMENTING OF THESE LAWS."

6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 CONTAINS A

PROVISION DELEGATING TO THE COMELEC THE POWER TO "PROMULGATE
SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE
PURPOSES OF THIS ACT." (SEC. 12, S.B. NO. 1290, ENCLOSED AS ANNEX E,
PETITION);

7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF ELECTIVE

OFFICIALS PROVIDED UNDER THE 1987 CONSTITUTION IS NOT A "REVISION" OF
THE CONSTITUTION. IT IS ONLY AN AMENDMENT. "AMENDMENT ENVISAGES AN
ALTERATION OF ONE OR A FEW SPECIFIC PROVISIONS OF THE CONSTITUTION.
REVISION CONTEMPLATES A RE-EXAMINATION OF THE ENTIRE DOCUMENT TO
DETERMINE HOW AND TO WHAT EXTENT IT SHOULD BE ALTERED." (PP. 412-413,
2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY JOAQUIN G. BERNAS, S.J.).

Also on 2 January 1997, private respondent Delfin filed in his own behalf a Comment 16 which starts off with
an assertion that the instant petition is a "knee-jerk reaction to a draft 'Petition for Initiative on the 1987
Constitution'. . . which is not formally filed yet." What he filed on 6 December 1996 was an "Initiatory
Pleading" or "Initiatory Petition," which was legally necessary to start the signature campaign to amend the
Constitution or to put the movement to gather signatures under COMELEC power and function. On the
substantive allegations of the petitioners, Delfin maintains as follows:

(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735, which governs
the conduct of initiative to amend the Constitution. The absence therein of a subtitle for
such initiative is not fatal, since subtitles are not requirements for the validity or
sufficiency of laws.

(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in
an initiative to amend the Constitution approved by the majority of the votes cast in the
plebiscite shall become effective as of the day of the plebiscite.

71 |C o n s t i t u t i o n a l L a w I P a g e 1
 (3) The claim that COMELEC Resolution No. 2300 is ultra vires is contradicted by (a)
Section 2, Article IX-C of the Constitution, which grants the COMELEC the power to
enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall; and (b) Section 20 of R.A. 6735, which
empowers the COMELEC to promulgate such rules and regulations as may be
necessary to carry out the purposes of the Act.

(4) The proposed initiative does not involve a revision of, but mere amendment to, the
Constitution because it seeks to alter only a few specific provisions of the Constitution, or
more specifically, only those which lay term limits. It does not seek to reexamine or
overhaul the entire document.

As to the public expenditures for registration of voters, Delfin considers petitioners' estimate of P180 million
as unreliable, for only the COMELEC can give the exact figure. Besides, if there will be a plebiscite it will be
simultaneous with the 1997 Barangay Elections. In any event, fund requirements for initiative will be a priority
government expense because it will be for the exercise of the sovereign power of the people.

In the Comment 17 for the public respondent COMELEC, filed also on 2 January 1997, the Office of the
Solicitor General contends that:

(1) R.A. No. 6735 deals with, inter alia, people's initiative to amend the Constitution. Its
Section 2 on Statement of Policy explicitly affirms, recognizes, and guarantees that
power; and its Section 3, which enumerates the three systems of initiative, includes
initiative on the Constitution and defines the same as the power to propose amendments
to the Constitution. Likewise, its Section 5 repeatedly mentions initiative on the
Constitution.

(2) A separate subtitle on initiative on the Constitution is not necessary in R.A. No. 6735
because, being national in scope, that system of initiative is deemed included in the
subtitle on National Initiative and Referendum; and Senator Tolentino simply overlooked
pertinent provisions of the law when he claimed that nothing therein was provided
for initiative on the Constitution.

(3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A. No. 6735
does not deal with initiative on the Constitution.

(4) Extension of term limits of elected officials constitutes a mere amendment to the
Constitution, not a revision thereof.

(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of R.A. No.
6735 and under the Omnibus Election Code. The rule-making power of the COMELEC to
implement the provisions of R.A. No. 6735 was in fact upheld by this Court in Subic Bay
Metropolitan Authority vs. COMELEC.

72 |C o n s t i t u t i o n a l L a w I P a g e 1
On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary restraining order; (b) noted the
aforementioned Comments and the Motion to Lift Temporary Restraining Order filed by private respondents
through Atty. Quadra, as well as the latter's Manifestation stating that he is the counsel for private
respondents Alberto and Carmen Pedrosa only and the Comment he filed was for the Pedrosas; and (c)
granted the Motion for Intervention filed on 6 January 1997 by Senator Raul Roco and allowed him to file his
Petition in Intervention not later than 20 January 1997; and (d) set the case for hearing on 23 January 1997
at 9:30 a.m.

On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the Movement of Attorneys
for Brotherhood Integrity and Nationalism, Inc. (MABINI), filed a Motion for Intervention. Attached to the
motion was their Petition in Intervention, which was later replaced by an Amended Petition in Intervention
wherein they contend that:

(1) The Delfin proposal does not involve a mere amendment to, but a revision of, the
Constitution because, in the words of Fr. Joaquin Bernas, S.J., 18 it would involve a
change from a political philosophy that rejects unlimited tenure to one that accepts
unlimited tenure; and although the change might appear to be an isolated one, it can
affect other provisions, such as, on synchronization of elections and on the State policy
of guaranteeing equal access to opportunities for public service and prohibiting political
dynasties. 19 A revision cannot be done by initiative which, by express provision of
Section 2 of Article XVII of the Constitution, is limited to amendments.

(2) The prohibition against reelection of the President and the limits provided for all other
national and local elective officials are based on the philosophy of governance, "to open
up the political arena to as many as there are Filipinos qualified to handle the demands
of leadership, to break the concentration of political and economic powers in the hands of
a few, and to promote effective proper empowerment for participation in policy and
decision-making for the common good"; hence, to remove the term limits is to negate and
nullify the noble vision of the 1987 Constitution.

(3) The Delfin proposal runs counter to the purpose of initiative, particularly in a conflict-
of-interest situation. Initiative is intended as a fallback position that may be availed of by
the people only if they are dissatisfied with the performance of their elective officials, but
not as a premium for good performance. 20

(4) R.A. No. 6735 is deficient and inadequate in itself to be called the enabling law that
implements the people's initiative on amendments to the Constitution. It fails to state (a)
the proper parties who may file the petition, (b) the appropriate agency before whom the
petition is to be filed, (c) the contents of the petition, (d) the publication of the same, (e)
the ways and means of gathering the signatures of the voters nationwide and 3% per
legislative district, (f) the proper parties who may oppose or question the veracity of the
signatures, (g) the role of the COMELEC in the verification of the signatures and the
sufficiency of the petition, (h) the appeal from any decision of the COMELEC, (I) the
holding of a plebiscite, and (g) the appropriation of funds for such people's initiative.

73 |C o n s t i t u t i o n a l L a w I P a g e 1
 Accordingly, there being no enabling law, the COMELEC has no jurisdiction to hear
Delfin's petition.

(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by COMELEC
Resolution No. 2300, since the COMELEC is without authority to legislate the procedure
for a people's initiative under Section 2 of Article XVII of the Constitution. That function
exclusively pertains to Congress. Section 20 of R.A. No. 6735 does not constitute a legal
basis for the Resolution, as the former does not set a sufficient standard for a valid
delegation of power.

On 20 January 1997, Senator Raul Roco filed his Petition in

Intervention. 21 He avers that R.A. No. 6735 is the enabling law that implements the people's right to initiate
constitutional amendments. This law is a consolidation of Senate Bill No. 17 and House Bill No. 21505; he
co-authored the House Bill and even delivered a sponsorship speech thereon. He likewise submits that the
COMELEC was empowered under Section 20 of that law to promulgate COMELEC Resolution No. 2300.
Nevertheless, he contends that the respondent Commission is without jurisdiction to take cognizance of the
Delfin Petition and to order its publication because the said petition is not the initiatory pleading contemplated
under the Constitution, Republic Act No. 6735, and COMELEC Resolution No. 2300. What vests jurisdiction
upon the COMELEC in an initiative on the Constitution is the filing of a petition for initiative which is signed by
the required number of registered voters. He also submits that the proponents of a constitutional amendment
cannot avail of the authority and resources of the COMELEC to assist them is securing the required number
of signatures, as the COMELEC's role in an initiative on the Constitution is limited to the determination of the
sufficiency of the initiative petition and the call and supervision of a plebiscite, if warranted.

On 20 January 1997, LABAN filed a Motion for Leave to Intervene.

The following day, the IBP filed a Motion for Intervention to which it attached a Petition in Intervention raising
the following arguments:

(1) Congress has failed to enact an enabling law mandated under Section 2, Article XVII
of the 1987 Constitution.

(2) COMELEC Resolution No. 2300 cannot substitute for the required implementing law
on the initiative to amend the Constitution.

(3) The Petition for Initiative suffers from a fatal defect in that it does not have the
required number of signatures.

(4) The petition seeks, in effect a revision of the Constitution, which can be proposed
only by Congress or a constitutional convention. 22

On 21 January 1997, we promulgated a Resolution (a) granting the Motions for Intervention filed by the DIK
and MABINI and by the IBP, as well as the Motion for Leave to Intervene filed by LABAN; (b) admitting the
Amended Petition in Intervention of DIK and MABINI, and the Petitions in Intervention of Senator Roco and
of the IBP; (c) requiring the respondents to file within a nonextendible period of five days their Consolidated

74 |C o n s t i t u t i o n a l L a w I P a g e 1
Comments on the aforesaid Petitions in Intervention; and (d) requiring LABAN to file its Petition in
Intervention within a nonextendible period of three days from notice, and the respondents to comment
thereon within a nonextendible period of five days from receipt of the said Petition in Intervention.

At the hearing of the case on 23 January 1997, the parties argued on the following pivotal issues, which the
Court formulated in light of the allegations and arguments raised in the pleadings so far filed:

1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and
Referendum and Appropriating Funds Therefor, was intended to include or
cover initiative on amendments to the Constitution; and if so, whether the Act, as worded,
adequately covers such initiative.

2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and Regulations
Governing the Conduct of Initiative on the Constitution, and Initiative and Referendum on
National and Local Laws) regarding the conduct of initiative on amendments to the
Constitution is valid, considering the absence in the law of specific provisions on the
conduct of such initiative.

3. Whether the lifting of term limits of elective national and local officials, as proposed in
the draft "Petition for Initiative on the 1987 Constitution," would constitute a revision of, or
an amendment to, the Constitution.

4. Whether the COMELEC can take cognizance of, or has jurisdiction over, a petition
solely intended to obtain an order (a) fixing the time and dates for signature gathering; (b)
instructing municipal election officers to assist Delfin's movement and volunteers in
establishing signature stations; and (c) directing or causing the publication of, inter alia,
the unsigned proposed Petition for Initiative on the 1987 Constitution.

5. Whether it is proper for the Supreme Court to take cognizance of the petition when
there is a pending case before the COMELEC.

After hearing them on the issues, we required the parties to submit simultaneously their respective
memoranda within twenty days and requested intervenor Senator Roco to submit copies of the deliberations
on House Bill No. 21505.

On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the allegations and arguments
in the main Petition. It further submits that the COMELEC should have dismissed the Delfin Petition for
failure to state a sufficient cause of action and that the Commission's failure or refusal to do so constituted
grave abuse of discretion amounting to lack of jurisdiction.

On 28 January 1997, Senator Roco submitted copies of portions of both the Journal and the Record of the
House of Representatives relating to the deliberations of House Bill No. 21505, as well as the transcripts of
stenographic notes on the proceedings of the Bicameral Conference Committee, Committee on Suffrage and
Electoral Reforms, of 6 June 1989 on House Bill No. 21505 and Senate Bill No. 17.

75 |C o n s t i t u t i o n a l L a w I P a g e 1
Private respondents Alberto and Carmen Pedrosa filed their Consolidated Comments on the Petitions in
Intervention of Senator Roco, DIK and MABINI, and IBP. 23 The parties thereafter filed, in due time, their
separate memoranda. 24

As we stated in the beginning, we resolved to give due course to this special civil action.

For a more logical discussion of the formulated issues, we shall first take up the fifth issue which appears to
pose a prejudicial procedural question.

THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN THE COMELEC OF THE
DELFIN PETITION.

Except for the petitioners and intervenor Roco, the parties paid no serious attention to the fifth issue, i.e.,
whether it is proper for this Court to take cognizance of this special civil action when there is a pending case
before the COMELEC. The petitioners provide an affirmative answer. Thus:

28. The Comelec has no jurisdiction to take cognizance of the petition filed by private
respondent Delfin. This being so, it becomes imperative to stop the Comelec from
proceeding any further, and under the Rules of Court, Rule 65, Section 2, a petition for
prohibition is the proper remedy.

29. The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior
jurisdiction and directed to an inferior court, for the purpose of preventing the inferior
tribunal from usurping a jurisdiction with which it is not legally vested. (People v.
Vera, supra., p. 84). In this case the writ is an urgent necessity, in view of the highly
divisive and adverse environmental consequences on the body politic of the questioned
Comelec order. The consequent climate of legal confusion and political instability begs
for judicial statesmanship.

30. In the final analysis, when the system of constitutional law is threatened by the
political ambitions of man, only the Supreme Court
can save a nation in peril and uphold the paramount majesty of the Constitution. 25

It must be recalled that intervenor Roco filed with the COMELEC a motion to dismiss the Delfin Petition on
the ground that the COMELEC has no jurisdiction or authority to entertain the petition. 26 The COMELEC
made no ruling thereon evidently because after having heard the arguments of Delfin and the oppositors at
the hearing on 12 December 1996, it required them to submit within five days their memoranda or
oppositions/memoranda. 27 Earlier, or specifically on 6 December 1996, it practically gave due course to the
Delfin Petition by ordering Delfin to cause the publication of the petition, together with the attached Petition
for Initiative, the signature form, and the notice of hearing; and by setting the case for hearing. The
COMELEC's failure to act on Roco's motion to dismiss and its insistence to hold on to the petition rendered
ripe and viable the instant petition under Section 2 of Rule 65 of the Rules of Court, which provides:

76 |C o n s t i t u t i o n a l L a w I P a g e 1
 Sec. 2. Petition for prohibition. — Where the proceedings of any tribunal, corporation,
board, or person, whether exercising functions judicial or ministerial, are without or in
excess of its or his jurisdiction, or with grave abuse of discretion, and there is no appeal
or any other 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 commanding the defendant to desist
from further proceedings in the action or matter specified therein.

It must also be noted that intervenor Roco claims that the COMELEC has no jurisdiction over the Delfin
Petition because the said petition is not supported by the required minimum number of signatures of
registered voters. LABAN also asserts that the COMELEC gravely abused its discretion in refusing to dismiss
the Delfin Petition, which does not contain the required number of signatures. In light of these claims, the
instant case may likewise be treated as a special civil action for certiorari under Section I of Rule 65 of the
Rules of Court.

In any event, as correctly pointed out by intervenor Roco in his Memorandum, this Court may brush aside
technicalities of procedure in
cases of transcendental importance. As we stated in Kilosbayan, Inc. v. Guingona, Jr. 28

A party's standing before this Court is a procedural technicality which it may, in the
exercise of its discretion, set aside in view of the importance of issues raised. In the
landmark Emergency Powers Cases, this Court brushed aside this technicality because
the transcendental importance to the public of these cases demands that they be settled
promptly and definitely, brushing aside, if we must, technicalities of procedure.

II

R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE ON AMENDMENTS TO

THE CONSTITUTION, BUT IS, UNFORTUNATELY, INADEQUATE TO COVER THAT SYSTEM.

Section 2 of Article XVII of the Constitution provides:

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be represented by at least
three per centum of the registered voters therein. No amendment under this section shall
be authorized within five years following the ratification of this Constitution nor oftener
than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

This provision is not self-executory. In his book, 29 Joaquin Bernas, a member of the 1986 Constitutional
Commission, stated:

77 |C o n s t i t u t i o n a l L a w I P a g e 1
 Without implementing legislation Section 2 cannot operate. Thus, although this mode of
amending the Constitution is a mode of amendment which bypasses congressional
action, in the last analysis it still is dependent on congressional action.

Bluntly stated, the right of the people to directly propose amendments to the Constitution through
the system of initiative would remain entombed in the cold niche of the Constitution until Congress
provides for its implementation. Stated otherwise, while the Constitution has recognized or granted
that right, the people cannot exercise it if Congress, for whatever reason, does not provide for its
implementation.

This system of initiative was originally included in Section 1 of the draft Article on Amendment or Revision
proposed by the Committee on Amendments and Transitory Provisions of the 1986 Constitutional
Commission in its Committee Report No. 7 (Proposed Resolution No. 332). 30 That section reads as follows:

Sec. 1. Any amendment to, or revision of, this Constitution may be proposed:

(a) by the National Assembly upon a vote of three-fourths of all its members; or

(b) by a constitutional convention; or

(c) directly by the people themselves thru initiative as provided for in Article___ Section
___of the Constitution. 31

After several interpellations, but before the period of amendments, the Committee submitted a new
formulation of the concept of initiative which it denominated as Section 2; thus:

MR. SUAREZ. Thank you, Madam President. May we respectfully

call attention of the Members of the Commission that pursuant to the
mandate given to us last night, we submitted this afternoon a
complete Committee Report No. 7 which embodies the proposed
provision governing the matter of initiative. This is now covered by
Section 2 of the complete committee report. With the permission of
the Members, may I quote Section 2:

The people may, after five years from the date of the last plebiscite held, directly propose
amendments to this Constitution thru initiative upon petition of at least ten percent of the
registered voters.

This completes the blanks appearing in the original Committee Report No. 7. 32

The interpellations on Section 2 showed that the details for carrying out Section 2 are left to the legislature.
Thus:

78 |C o n s t i t u t i o n a l L a w I P a g e 1
FR. BERNAS. Madam President, just two simple, clarificatory
questions.

First, on Section 1 on the matter of initiative upon petition of at least

10 percent, there are no details in the provision on how to carry this
out. Do we understand, therefore, that we are leaving this matter to
the legislature?

MR. SUAREZ. That is right, Madam President.

FR. BERNAS. And do we also understand, therefore, that for as long

as the legislature does not pass the necessary implementing law on
this, this will not operate?

MR. SUAREZ. That matter was also taken up during the committee
hearing, especially with respect to the budget appropriations which
would have to be legislated so that the plebiscite could be called. We
deemed it best that this matter be left to the legislature. The
Gentleman is right. In any event, as envisioned, no amendment
through the power of initiative can be called until after five years from
the date of the ratification of this Constitution. Therefore, the first
amendment that could be proposed through the exercise of this
initiative power would be after five years. It is reasonably expected
that within that five-year period, the National Assembly can come up
with the appropriate rules governing the exercise of this power.

FR. BERNAS. Since the matter is left to the legislature — the details
on how this is to be carried out — is it possible that, in effect, what
will be presented to the people for ratification is the work of the
legislature rather than of the people? Does this provision exclude that
possibility?

MR. SUAREZ. No, it does not exclude that possibility because even
the legislature itself as a body could propose that amendment,
maybe individually or collectively, if it fails to muster the three-fourths
vote in order to constitute itself as a constituent assembly and submit
that proposal to the people for ratification through the process of an
initiative.

xxx xxx xxx

MS. AQUINO. Do I understand from the sponsor that the intention in

the proposal is to vest constituent power in the people to amend the
Constitution?

79 |C o n s t i t u t i o n a l L a w I P a g e 1
 MR. SUAREZ. That is absolutely correct, Madam President.

MS. AQUINO. I fully concur with the underlying precept of the

proposal in terms of institutionalizing popular participation in the
drafting of the Constitution or in the amendment thereof, but I would
have a lot of difficulties in terms of accepting the draft of Section 2,
as written. Would the sponsor agree with me that in the hierarchy of
legal mandate, constituent power has primacy over all other legal
mandates?

MR. SUAREZ. The Commissioner is right, Madam President.

MS. AQUINO. And would the sponsor agree with me that in the
hierarchy of legal values, the Constitution is source of all legal
mandates and that therefore we require a great deal of
circumspection in the drafting and in the amendments of the
Constitution?

MR. SUAREZ. That proposition is nondebatable.

MS. AQUINO. Such that in order to underscore the primacy of

constituent power we have a separate article in the constitution that
would specifically cover the process and the modes of amending the
Constitution?

MR. SUAREZ. That is right, Madam President.

MS. AQUINO. Therefore, is the sponsor inclined, as the provisions

are drafted now, to again concede to the legislature the process or
the requirement of determining the mechanics of amending the
Constitution by people's initiative?

MR. SUAREZ. The matter of implementing this could very well be

placed in the hands of the National Assembly, not unless we can
incorporate into this provision the mechanics that would adequately
cover all the conceivable situations. 33

It was made clear during the interpellations that the aforementioned Section 2 is limited to proposals to
AMEND — not to REVISE — the Constitution; thus:

MR. SUAREZ. . . . This proposal was suggested on the theory that

this matter of initiative, which came about because of the
extraordinary developments this year, has to be separated from the
traditional modes of amending the Constitution as embodied in

80 |C o n s t i t u t i o n a l L a w I P a g e 1
 Section 1. The committee members felt that this system of initiative
should not extend to the revision of the entire Constitution, so we
removed it from the operation of Section 1 of the proposed Article on
Amendment or Revision. 34

xxx xxx xxx

MS. AQUINO. In which case, I am seriously bothered by providing

this process of initiative as a separate section in the Article on
Amendment. Would the sponsor be amenable to accepting an
amendment in terms of realigning Section 2 as another
subparagraph (c) of Section 1, instead of setting it up as another
separate section as if it were a self-executing provision?

MR. SUAREZ. We would be amenable except that, as we clarified a

while ago, this process of initiative is limited to the matter of
amendment and should not expand into a revision which
contemplates a total overhaul of the Constitution. That was the sense
that was conveyed by the Committee.

MS. AQUINO. In other words, the Committee was attempting to

distinguish the coverage of modes (a) and (b) in Section 1 to include
the process of revision; whereas the process of initiation to amend,
which is given to the public, would only apply to amendments?

MR. SUAREZ. That is right. Those were the terms envisioned in the
Committee. 35

Amendments to the proposed Section 2 were thereafter introduced by then Commissioner Hilario G. Davide,
Jr., which the Committee accepted. Thus:

MR. DAVIDE. Thank you Madam President. I propose to substitute

the entire Section 2 with the following:

MR. DAVIDE. Madam President, I have modified the proposed

amendment after taking into account the modifications submitted by
the sponsor himself and the honorable Commissioners Guingona,
Monsod, Rama, Ople, de los Reyes and Romulo. The modified
amendment in substitution of the proposed Section 2 will now read
as follows: "SECTION 2. — AMENDMENTS TO THIS
CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY
THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT
LEAST TWELVE PERCENT OF THE TOTAL NUMBER Of
REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE
DISTRICT MUST BE REPRESENTED BY AT LEAST THREE

81 |C o n s t i t u t i o n a l L a w I P a g e 1
 PERCENT OF THE REGISTERED VOTERS THEREOF. NO
AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED
WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS
CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE
YEARS THEREAFTER.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE

IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.

MR. SUAREZ. Madam President, considering that the proposed

amendment is reflective of the sense contained in Section 2 of our
completed Committee Report No. 7, we accept the proposed
amendment. 36

The interpellations which ensued on the proposed modified amendment to Section 2 clearly showed that it
was a legislative act which must implement the exercise of the right. Thus:

MR. ROMULO. Under Commissioner Davide's amendment, is it

possible for the legislature to set forth certain procedures to carry out
the initiative. . .?

MR. DAVIDE. It can.

xxx xxx xxx

MR. ROMULO. But the Commissioner's amendment does not

prevent the legislature from asking another body to set the
proposition in proper form.

MR. DAVIDE. The Commissioner is correct. In other words, the

implementation of this particular right would be subject to legislation,
provided the legislature cannot determine anymore the percentage of
the requirement.

MR. ROMULO. But the procedures, including the determination of

the proper form for submission to the people, may be subject to
legislation.

MR. DAVIDE. As long as it will not destroy the substantive right to

initiate. In other words, none of the procedures to be proposed by the
legislative body must diminish or impair the right conceded here.

MR. ROMULO. In that provision of the Constitution can the

procedures which I have discussed be legislated?

82 |C o n s t i t u t i o n a l L a w I P a g e 1
 MR. DAVIDE. Yes. 37

Commissioner Davide also reaffirmed that his modified amendment strictly confines initiative to
AMENDMENTS to — NOT REVISION of — the Constitution. Thus:

MR. DAVIDE. With pleasure, Madam President.

MR. MAAMBONG. My first question: Commissioner Davide's

proposed amendment on line 1 refers to "amendment." Does it not
cover the word "revision" as defined by Commissioner Padilla when
he made the distinction between the words "amendments" and
"revision"?

MR. DAVIDE. No, it does not, because "amendments" and "revision"

should be covered by Section 1. So insofar as initiative is concerned,
it can only relate to "amendments" not "revision." 38

Commissioner Davide further emphasized that the process of proposing amendments through initiative must
be more rigorous and difficult than the initiative on legislation. Thus:

MR. DAVIDE. A distinction has to be made that under this proposal,

what is involved is an amendment to the Constitution. To amend a
Constitution would ordinarily require a proposal by the National
Assembly by a vote of three-fourths; and to call a constitutional
convention would require a higher number. Moreover, just to submit
the issue of calling a constitutional convention, a majority of the
National Assembly is required, the import being that the process of
amendment must be made more rigorous and difficult than probably
initiating an ordinary legislation or putting an end to a law proposed
by the National Assembly by way of a referendum. I cannot agree to
reducing the requirement approved by the Committee on the
Legislative because it would require another voting by the
Committee, and the voting as precisely based on a requirement of 10
percent. Perhaps, I might present such a proposal, by way of an
amendment, when the Commission shall take up the Article on the
Legislative or on the National Assembly on plenary sessions. 39

The Davide modified amendments to Section 2 were subjected to amendments, and the final version, which
the Commission approved by a vote of 31 in favor and 3 against, reads as follows:

MR. DAVIDE. Thank you Madam President. Section 2, as amended,

reads as follows: "AMENDMENT TO THIS CONSTITUTION MAY
LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE
THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE
PERCENT OF THE TOTAL NUMBER OF REGISTERED VOTERS,

83 |C o n s t i t u t i o n a l L a w I P a g e 1
 OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE
REPRESENTED BY AT LEAST THREE PERCENT OF THE
REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER
THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS
FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR
OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE

FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS
RIGHT. 40

The entire proposed Article on Amendments or Revisions was approved on second reading on 9
July 1986. 41Thereafter, upon his motion for reconsideration, Commissioner Gascon was allowed to
introduce an amendment to Section 2 which, nevertheless, was withdrawn. In view thereof, the
Article was again approved on Second and Third Readings on 1 August 1986. 42

However, the Committee on Style recommended that the approved Section 2 be amended by changing
"percent" to "per centum" and "thereof" to "therein" and deleting the phrase "by law" in the second paragraph
so that said paragraph reads: The Congress 43 shall provide for the implementation of the exercise of this
right. 44 This amendment was approved and is the text of the present second paragraph of Section 2.

The conclusion then is inevitable that, indeed, the system of initiative on the Constitution under Section 2 of
Article XVII of the Constitution is not self-executory.

Has Congress "provided" for the implementation of the exercise of this right? Those who answer the question
in the affirmative, like the private respondents and intervenor Senator Roco, point to us R.A. No. 6735.

There is, of course, no other better way for Congress to implement the exercise of the right than through the
passage of a statute or legislative act. This is the essence or rationale of the last minute amendment by the
Constitutional Commission to substitute the last paragraph of Section 2 of Article XVII then reading:

The Congress 45 shall by law provide for the implementation of the exercise of this right.

with

The Congress shall provide for the implementation of the exercise of this right.

This substitute amendment was an investiture on Congress of a power to provide for the rules
implementing the exercise of the right. The "rules" means "the details on how [the right] is to be
carried out." 46

We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative to propose amendments
to the Constitution. The Act is a consolidation of House Bill No. 21505 and Senate Bill No. 17. The former
was prepared by the Committee on Suffrage and Electoral Reforms of the House of Representatives on the

84 |C o n s t i t u t i o n a l L a w I P a g e 1
basis of two House Bills referred to it, viz., (a) House Bill No. 497, 47 which dealt with the initiative and
referendum mentioned
in Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No. 988, 48 which dealt with the
subject matter of House Bill No. 497, as well as with initiative and referendum under Section 3 of Article X
(Local Government) and initiative provided for in Section 2 of Article XVII of the Constitution. Senate Bill No.
17 49 solely dealt with initiative and referendum concerning ordinances or resolutions of local government
units. The Bicameral Conference Committee consolidated Senate Bill No. 17 and House Bill No. 21505 into a
draft bill, which was subsequently approved on 8 June 1989 by the Senate 50 and by the House of
Representatives. 51 This approved bill is now R.A. No. 6735.

But is R.A. No. 6735 a full compliance with the power and duty of Congress to "provide for the
implementation of the exercise of the right?"

A careful scrutiny of the Act yields a negative answer.

First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act does not suggest an
initiative on amendments to the Constitution. The said section reads:

Sec. 2. Statement and Policy. — The power of the people under a system of initiative
and referendum to directly propose, enact, approve or reject, in whole or in part, the
Constitution, laws, ordinances, or resolutions passed by any legislative body upon
compliance with the requirements of this Act is hereby affirmed, recognized and
guaranteed. (Emphasis supplied).

The inclusion of the word "Constitution" therein was a delayed afterthought. That word is neither
germane nor relevant to said section, which exclusively relates to initiative and referendum on
national laws and local laws, ordinances, and resolutions. That section is silent as
to amendments on the Constitution. As pointed out earlier, initiative on the Constitution is confined
only to proposals to AMEND. The people are not accorded the power to "directly propose, enact,
approve, or reject, in whole or in part, the Constitution" through the system of initiative. They can
only do so with respect to "laws, ordinances, or resolutions."

The foregoing conclusion is further buttressed by the fact that this section was lifted from Section 1 of Senate
Bill No. 17, which solely referred to a statement of policy on local initiative and referendum and appropriately
used the phrases "propose and enact," "approve or reject" and "in whole or in part." 52

Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on amendments to the
Constitution and mentions it as one of the three systems of initiative, and that Section 5 (Requirements)
restates the constitutional requirements as to the percentage of the registered voters who must submit the
proposal. But unlike in the case of the other systems of initiative, the Act does not provide for the contents of
a petition for initiative on the Constitution. Section 5, paragraph (c) requires, among other things, statement
of the proposed law sought to be enacted, approved or rejected, amended or repealed, as the case may be.
It does not include, as among the contents of the petition, the provisions of the Constitution sought to be
amended, in the case of initiative on the Constitution. Said paragraph (c) reads in full as follows:

85 |C o n s t i t u t i o n a l L a w I P a g e 1
 (c) The petition shall state the following:

c.1 contents or text of the proposed law sought to be enacted, approved or rejected,
amended or repealed, as the case may be;

c.2 the proposition;

c.3 the reason or reasons therefor;

c.4 that it is not one of the exceptions provided therein;

c.5 signatures of the petitioners or registered voters; and

c.6 an abstract or summary proposition is not more than one hundred (100) words which
shall be legibly written or printed at the top of every page of the petition. (Emphasis
supplied).

The use of the clause "proposed laws sought to be enacted, approved or rejected, amended or
repealed" only strengthens the conclusion that Section 2, quoted earlier, excludes initiative on
amendments to the Constitution.

Third. While the Act provides subtitles for National Initiative and Referendum (Subtitle II) and for Local
Initiative and Referendum (Subtitle III), no subtitle is provided for initiative on the Constitution. This
conspicuous silence as to the latter simply means that the main thrust of the Act is initiative and referendum
on national and local laws. If Congress intended R.A. No. 6735 to fully provide for the implementation of
the initiative on amendments to the Constitution, it could have provided for a subtitle therefor, considering
that in the order of things, the primacy of interest, or hierarchy of values, the right of the people to directly
propose amendments to the Constitution is far more important than the initiative on national and local laws.

We cannot accept the argument that the initiative on amendments to the Constitution is subsumed under the
subtitle on National Initiative and Referendum because it is national in scope. Our reading of Subtitle II
(National Initiative and Referendum) and Subtitle III (Local Initiative and Referendum) leaves no room for
doubt that the classification is not based on the scope of the initiative involved, but on
its nature and character. It is "national initiative," if what is proposed to be adopted or enacted is a national
law, or a law which only Congress can pass. It is "local initiative" if what is proposed to be adopted or
enacted is a law, ordinance, or resolution which only the legislative bodies of the governments of the
autonomous regions, provinces, cities, municipalities, and barangays can pass. This classification of initiative
into national and local is actually based on Section 3 of the Act, which we quote for emphasis and clearer
understanding:

Sec. 3. Definition of terms —

xxx xxx xxx

86 |C o n s t i t u t i o n a l L a w I P a g e 1
There are three (3) systems of initiative, namely:

a.1 Initiative on the Constitution which refers to a petition proposing amendments to the
Constitution;

a.2 Initiative on Statutes which refers to a petition proposing to enact a national

legislation; and

a.3 Initiative on local legislation which refers to a petition proposing to enact a regional,
provincial, city, municipal, or barangay law, resolution or ordinance. (Emphasis supplied).

Hence, to complete the classification under subtitles there should have been a subtitle on initiative on
amendments to the Constitution. 53

A further examination of the Act even reveals that the subtitling is not accurate. Provisions not germane to
the subtitle on National Initiative and Referendum are placed therein, like (1) paragraphs (b) and (c) of
Section 9, which reads:

(b) The proposition in an initiative on the Constitution approved by the majority of the
votes cast in the plebiscite shall become effective as to the day of the plebiscite.

(c) A national or local initiative proposition approved by majority of the votes cast in an
election called for the purpose shall become effective fifteen (15) days after certification
and proclamation of the Commission. (Emphasis supplied).

(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the legislative bodies of
local governments; thus:

Sec. 11. Indirect Initiative. — Any duly accredited people's organization, as defined by
law, may file a petition for indirect initiative with the House of Representatives, and other
legislative bodies. . . .

and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the findings of
sufficiency or insufficiency of the petition for initiative or referendum, which could be petitions for
both national and local initiative and referendum.

Upon the other hand, Section 18 on "Authority of Courts" under subtitle III on Local Initiative and Referendum
is misplaced, 54 since the provision therein applies to both national and local initiative and referendum. It
reads:

Sec. 18. Authority of Courts. — Nothing in this Act shall prevent or preclude the proper
courts from declaring null and void any proposition approved pursuant to this Act for
violation of the Constitution or want of capacity of the local legislative body to enact the
said measure.

87 |C o n s t i t u t i o n a l L a w I P a g e 1
Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing for the details in the
implementation of initiative and referendum on national and local legislation thereby giving them special
attention, it failed, rather intentionally, to do so on the system of initiative on amendments to the Constitution.
Anent the initiative on national legislation, the Act provides for the following:

(a) The required percentage of registered voters to sign the petition and the contents of the petition;

(b) The conduct and date of the initiative;

(c) The submission to the electorate of the proposition and the required number of votes for its approval;

(d) The certification by the COMELEC of the approval of the proposition;

(e) The publication of the approved proposition in the Official Gazette or in a newspaper of general circulation
in the Philippines; and

(f) The effects of the approval or rejection of the proposition. 55

As regards local initiative, the Act provides for the following:

(a) The preliminary requirement as to the number of signatures of registered voters for the petition;

(b) The submission of the petition to the local legislative body concerned;

(c) The effect of the legislative body's failure to favorably act thereon, and the invocation of the power of
initiative as a consequence thereof;

(d) The formulation of the proposition;

(e) The period within which to gather the signatures;

(f) The persons before whom the petition shall be signed;

(g) The issuance of a certification by the COMELEC through its official in the local government unit
concerned as to whether the required number of signatures have been obtained;

(h) The setting of a date by the COMELEC for the submission of the proposition to the registered voters for
their approval, which must be within the period specified therein;

(i) The issuance of a certification of the result;

(j) The date of effectivity of the approved proposition;

88 |C o n s t i t u t i o n a l L a w I P a g e 1
(k) The limitations on local initiative; and

(l) The limitations upon local legislative bodies. 56

Upon the other hand, as to initiative on amendments to the Constitution, R.A. No. 6735, in all of its twenty-
three sections, merely (a) mentions, the word "Constitution" in Section 2; (b) defines "initiative on the
Constitution" and includes it in the enumeration of the three systems of initiative in Section 3; (c) speaks of
"plebiscite" as the process by which the proposition in an initiative on the Constitution may be approved or
rejected by the people; (d) reiterates the constitutional requirements as to the number of voters who should
sign the petition; and (e) provides for the date of effectivity of the approved proposition.

There was, therefore, an obvious downgrading of the more important or the paramount system of initiative.
RA. No. 6735 thus delivered a humiliating blow to the system of initiative on amendments to the Constitution
by merely paying it a reluctant lip service. 57

The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete, inadequate, or wanting in
essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. Its
lacunae on this substantive matter are fatal and cannot be cured by "empowering" the COMELEC "to
promulgate such rules and regulations as may be necessary to carry out the purposes of [the] Act. 58

The rule is that what has been delegated, cannot be delegated or as expressed in a Latin maxim: potestas
delegata non delegari potest. 59 The recognized exceptions to the rule are as follows:

(1) Delegation of tariff powers to the President under Section 28(2) of Article VI of the Constitution;

(2) Delegation of emergency powers to the President under Section 23(2) of Article VI of the Constitution;

(3) Delegation to the people at large;

(4) Delegation to local governments; and

(5) Delegation to administrative bodies. 60

Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to promulgate rules
and regulations is a form of delegation of legislative authority under no. 5 above. However, in every case of
permissible delegation, there must be a showing that the delegation itself is valid. It is valid only if the law (a)
is complete in itself, setting forth therein the policy to be executed, carried out, or implemented by the
delegate; and (b) fixes a standard — the limits of which are sufficiently determinate and determinable — to
which the delegate must conform in the performance of his functions. 61 A sufficient standard is one which
defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it.
It indicates the circumstances under which the legislative command is to be effected. 62

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Insofar as initiative to propose amendments to the Constitution is concerned, R.A. No. 6735 miserably failed
to satisfy both requirements in subordinate legislation. The delegation of the power to the COMELEC is then
invalid.

III

COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND

REGULATIONS ON THE CONDUCT OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, IS VOID.

It logically follows that the COMELEC cannot validly promulgate rules and regulations to implement the
exercise of the right of the people to directly propose amendments to the Constitution through the system of
initiative. It does not have that power under R.A. No. 6735. Reliance on the COMELEC's power under
Section 2(1) of Article IX-C of the Constitution is misplaced, for the laws and regulations referred to therein
are those promulgated by the COMELEC under (a) Section 3 of Article IX-C of the Constitution, or (b) a law
where subordinate legislation is authorized and which satisfies the "completeness" and the "sufficient
standard" tests.

IV

COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN

ENTERTAINING THE DELFIN PETITION.

Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the power of Congress to
implement the right to initiate constitutional amendments, or that it has validly vested upon the COMELEC
the power of subordinate legislation and that COMELEC Resolution No. 2300 is valid, the COMELEC acted
without jurisdiction or with grave abuse of discretion in entertaining the Delfin Petition.

Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No. 6735, a petition for initiative
on the Constitution must be signed by at least 12% of the total number of registered voters of which every
legislative district is represented by at least 3% of the registered voters therein. The Delfin Petition does not
contain signatures of the required number of voters. Delfin himself admits that he has not yet gathered
signatures and that the purpose of his petition is primarily to obtain assistance in his drive to gather
signatures. Without the required signatures, the petition cannot be deemed validly initiated.

The COMELEC acquires jurisdiction over a petition for initiative only after its filing. The petition then is
the initiatory pleading. Nothing before its filing is cognizable by the COMELEC, sitting en banc. The only
participation of the COMELEC or its personnel before the filing of such petition are (1) to prescribe the form
of the petition; 63 (2) to issue through its Election Records and Statistics Office a certificate on the total
number of registered voters in each legislative district; 64 (3) to assist, through its election registrars, in the
establishment of signature stations; 65 and (4) to verify, through its election registrars, the signatures on the
basis of the registry list of voters, voters' affidavits, and voters' identification cards used in the immediately
preceding election. 66

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Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and COMELEC Resolution No.
2300, it cannot be entertained or given cognizance of by the COMELEC. The respondent Commission must
have known that the petition does not fall under any of the actions or proceedings under the COMELEC
Rules of Procedure or under Resolution No. 2300, for which reason it did not assign to the petition a docket
number. Hence, the said petition was merely entered as UND, meaning, undocketed. That petition was
nothing more than a mere scrap of paper, which should not have been dignified by the Order of 6 December
1996, the hearing on 12 December 1996, and the order directing Delfin and the oppositors to file their
memoranda or oppositions. In so dignifying it, the COMELEC acted without jurisdiction or with grave abuse
of discretion and merely wasted its time, energy, and resources.

The foregoing considered, further discussion on the issue of whether the proposal to lift the term limits of
elective national and local officials is an amendment to, and not a revision of, the Constitution is rendered
unnecessary, if not academic.

CONCLUSION

This petition must then be granted, and the COMELEC should be permanently enjoined from entertaining or
taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall
have been validly enacted to provide for the implementation of the system.

We feel, however, that the system of initiative to propose amendments to the Constitution should no longer
be kept in the cold; it should be given flesh and blood, energy and strength. Congress should not tarry any
longer in complying with the constitutional mandate to provide for the implementation of the right of the
people under that system.

WHEREFORE, judgment is hereby rendered

a) GRANTING the instant petition;

b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the
Constitution, and to have failed to provide sufficient standard for subordinate legislation;

c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections prescribing rules
and regulations on the conduct of initiative or amendments to the Constitution; and

d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-037).

The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the
Commission on Elections, but is LIFTED as against private respondents.

Resolution on the matter of contempt is hereby reserved.

SO ORDERED.

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Narvasa, C.J., Regalado, Romero, Bellosillo, Kapunan, Hermosisima, Jr. and Torres, Jr., JJ., concur.

Padilla, J., took no part.

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 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-34150 October 16, 1971

ARTURO M. TOLENTINO, petitioner,

vs.
COMMISSION ON ELECTIONS, and THE CHIEF ACCOUNTANT, THE AUDITOR, and THE DISBURSING
OFFICER OF THE 1971 CONSTITUTIONAL CONVENTION, respondents, RAUL S. MANGLAPUS, JESUS
G. BARRERA, PABLO S. TRILLANA III, VICTOR DE LA SERNA, MARCELO B. FERNAN, JOSE Y.
FERIA, LEONARDO SIGUION REYNA, VICTOR F. ORTEGA, and JUAN V. BORRA, Intervenors.

Arturo M. Tolentino in his own behalf.

Ramon A. Gonzales for respondents Chief Accountant and Auditor of the 1971 Constitutional Convention.

Emmanuel Pelaez, Jorge M. Juco and Tomas L. Echivarre for respondent Disbursing Officer of the 1971
Constitutional Convention.

Intervenors in their own behalf.

BARREDO, J.:

Petition for prohibition principally to restrain the respondent Commission on Elections "from undertaking to
hold a plebiscite on November 8, 1971," at which the proposed constitutional amendment "reducing the
voting age" in Section 1 of Article V of the Constitution of the Philippines to eighteen years "shall be,
submitted" for ratification by the people pursuant to Organic Resolution No. 1 of the Constitutional
Convention of 1971, and the subsequent implementing resolutions, by declaring said resolutions to be
without the force and effect of law in so far as they direct the holding of such plebiscite and by also declaring
the acts of the respondent Commission (COMELEC) performed and to be done by it in obedience to the
aforesaid Convention resolutions to be null and void, for being violative of the Constitution of the Philippines.

As a preliminary step, since the petition named as respondent only the COMELEC, the Count required that
copies thereof be served on the Solicitor General and the Constitutional Convention, through its President,
for such action as they may deem proper to take. In due time, respondent COMELEC filed its answer joining
issues with petitioner. To further put things in proper order, and considering that the fiscal officers of the
Convention are indispensable parties in a proceeding of this nature, since the acts sought to be enjoined

93 |C o n s t i t u t i o n a l L a w I P a g e 1
involve the expenditure of funds appropriated by law for the Convention, the Court also ordered that the
Disbursing Officer, Chief Accountant and Auditor of the Convention be made respondents. After the petition
was so amended, the first appeared thru Senator Emmanuel Pelaez and the last two thru Delegate Ramon
Gonzales. All said respondents, thru counsel, resist petitioner's action.

For reasons of orderliness and to avoid unnecessary duplication of arguments and even possible confusion,
and considering that with the principal parties being duly represented by able counsel, their interests would
be adequately protected already, the Court had to limit the number of intervenors from the ranks of the
delegates to the Convention who, more or less, have legal interest in the success of the respondents, and
so, only Delegates Raul S. Manglapus, Jesus G. Barrera, Pablo S. Trillana III, Victor de la Serna, Marcelo B.
Fernan, Jose Y. Feria, Leonardo Siguion Reyna, Victor Ortega and Juan B. Borra, all distinguished lawyers
in their own right, have been allowed to intervene jointly. The Court feels that with such an array of brilliant
and dedicated counsel, all interests involved should be duly and amply represented and protected. At any
rate, notwithstanding that their corresponding motions for leave to intervene or to appear as amicus curiae 1
have been denied, the pleadings filed by the other delegates and some private parties, the latter in
representation of their minor children allegedly to be affected by the result of this case with the records and
the Court acknowledges that they have not been without value as materials in the extensive study that has
been undertaken in this case.

The background facts are beyond dispute. The Constitutional Convention of 1971 came into being by virtue
of two resolutions of the Congress of the Philippines approved in its capacity as a constituent assembly
convened for the purpose of calling a convention to propose amendments to the Constitution namely,
Resolutions 2 and 4 of the joint sessions of Congress held on March 16, 1967 and June 17, 1969
respectively. The delegates to the said Convention were all elected under and by virtue of said resolutions
and the implementing legislation thereof, Republic Act 6132. The pertinent portions of Resolution No 2 read
as follows:

SECTION 1. There is hereby called a convention to propose amendments to the

Constitution of the Philippines, to be composed of two elective Delegates from each
representative district who shall have the same qualifications as those required of
Members of the House of Representatives.

xxx xxx xxx

SECTION 7. The amendments proposed by the Convention shall be valid and

considered part of the Constitution when approved by a majority of the votes cast in an
election at which they are submitted to the people for their ratification pursuant to Article
XV of the Constitution.

Resolution No. 4 merely modified the number of delegates to represent the different cities and provinces
fixed originally in Resolution No 2.

After the election of the delegates held on November 10, 1970, the Convention held its inaugural session on
June 1, 1971. Its preliminary labors of election of officers, organization of committees and other preparatory
works over, as its first formal proposal to amend the Constitution, its session which began on September 27,

94 |C o n s t i t u t i o n a l L a w I P a g e 1
1971, or more accurately, at about 3:30 in the morning of September 28, 1971, the Convention approved
Organic Resolution No. 1 reading thus: .

CC ORGANIC RESOLUTION NO. 1

A RESOLUTION AMENDING SECTION ONE OF ARTICLE V OF THE CONSTITUTION

OF THE PHILIPPINES SO AS TO LOWER THE VOTING AGE TO 18

BE IT RESOLVED as it is hereby resolved by the 1971 Constitutional Convention:

Section 1. Section One of Article V of the Constitution of the Philippines is amended to as

follows:

Section 1. Suffrage may be exercised by (male) citizens of the

Philippines not otherwise disqualified by law, who are (twenty-one)
EIGHTEEN years or over and are able to read and write, and who
shall have resided in the Philippines for one year and in the
municipality wherein they propose to vote for at least six months
preceding the election.

Section 2. This amendment shall be valid as part of the Constitution of the Philippines
when approved by a majority of the votes cast in a plebiscite to coincide with the local
elections in November 1971.

Section 3. This partial amendment, which refers only to the age qualification for the
exercise of suffrage shall be without prejudice to other amendments that will be proposed
in the future by the 1971 Constitutional Convention on other portions of the amended
Section or on other portions of the entire Constitution.

Section 4. The Convention hereby authorizes the use of the sum of P75,000.00 from its
savings or from its unexpended funds for the expense of the advanced plebiscite;
provided, however that should there be no savings or unexpended sums, the Delegates
waive P250.00 each or the equivalent of 2-1/2 days per diem.

By a letter dated September 28, 1971, President Diosdado Macapagal, called upon respondent Comelec "to
help the Convention implement (the above) resolution." The said letter reads:

September 28, 1971

The Commission on Elections Manila

Thru the Chairman

Gentlemen:

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 Last night the Constitutional Convention passed Resolution No. 1 quoted as follows:

xxx xxx xxx

(see above)

Pursuant to the provision of Section 14, Republic Act No. 6132 otherwise known as the
Constitutional Convention Act of 1971, may we call upon you to help the Convention
implement this resolution:

Sincerely,

(Sgd.) DIOSDADO P. MACAPAGAL

DIOSDADO P. MACAPAGAL
President

On September 30, 1971, COMELEC "RESOLVED to inform the Constitutional Convention that it will hold the
plebiscite on condition that:

(a) The Constitutional Convention will undertake the printing of separate official ballots,
election returns and tally sheets for the use of said plebiscite at its expense;

(b) The Constitutional Convention will adopt its own security measures for the printing
and shipment of said ballots and election forms; and

(c) Said official ballots and election forms will be delivered to the Commission in time so
that they could be distributed at the same time that the Commission will distribute its
official and sample ballots to be used in the elections on November 8, 1971.

What happened afterwards may best be stated by quoting from intervenors' Governors' statement of the
genesis of the above proposal:

The President of the Convention also issued an order forming an Ad Hoc Committee to
implement the Resolution.

This Committee issued implementing guidelines which were approved by the President
who then transmitted them to the Commission on Elections.

The Committee on Plebiscite and Ratification filed a report on the progress of the
implementation of the plebiscite in the afternoon of October 7,1971, enclosing copies of
the order, resolution and letters of transmittal above referred to (Copy of the report is
hereto attached as Annex 8-Memorandum).

96 |C o n s t i t u t i o n a l L a w I P a g e 1
RECESS RESOLUTION

In its plenary session in the evening of October 7, 1971, the Convention approved a
resolution authored by Delegate Antonio Olmedo of Davao Oriental, calling for a recess
of the Convention from November 1, 1971 to November 9, 1971 to permit the delegates
to campaign for the ratification of Organic Resolution No. 1. (Copies of the resolution and
the transcript of debate thereon are hereto attached as Annexes 9 and 9-A
Memorandum, respectively).

RESOLUTION CONFIRMING IMPLEMENTATION

On October 12, 1971, the Convention passed Resolution No. 24 submitted by Delegate
Jose Ozamiz confirming the authority of the President of the Convention to implement
Organic Resolution No. 1, including the creation of the Ad Hoc Committee ratifying all
acts performed in connection with said implementation.

Upon these facts, the main thrust of the petition is that Organic Resolution No. 1 and the other implementing
resolutions thereof subsequently approved by the Convention have no force and effect as laws in so far as
they provide for the holding of a plebiscite co-incident with the elections of eight senators and all city,
provincial and municipal officials to be held on November 8, 1971, hence all of Comelec's acts in obedience
thereof and tending to carry out the holding of the plebiscite directed by said resolutions are null and void, on
the ground that the calling and holding of such a plebiscite is, by the Constitution, a power lodged exclusively
in Congress, as a legislative body, and may not be exercised by the Convention, and that, under Section 1,
Article XV of the Constitution, the proposed amendment in question cannot be presented to the people for
ratification separately from each and all of the other amendments to be drafted and proposed by the
Convention. On the other hand, respondents and intervenors posit that the power to provide for, fix the date
and lay down the details of the plebiscite for the ratification of any amendment the Convention may deem
proper to propose is within the authority of the Convention as a necessary consequence and part of its power
to propose amendments and that this power includes that of submitting such amendments either individually
or jointly at such time and manner as the Convention may direct in discretion. The Court's delicate task now
is to decide which of these two poses is really in accord with the letter and spirit of the Constitution.

As a preliminary and prejudicial matter, the intervenors raise the question of jurisdiction. They contend that
the issue before Us is a political question and that the Convention being legislative body of the highest order
is sovereign, and as such, its acts impugned by petitioner are beyond the control of the Congress and the
courts. In this connection, it is to be noted that none of the respondent has joined intervenors in this posture.
In fact, respondents Chief Accountant and Auditor of the convention expressly concede the jurisdiction of this
Court in their answer acknowledging that the issue herein is a justifiable one.

Strangely, intervenors cite in support of this contention portions of the decision of this Court in the case of
Gonzales v. Comelec, 21 SCRA 774, wherein the members of the Court, despite their being divided in their
opinions as to the other matters therein involved, were precisely unanimous in upholding its jurisdiction.
Obviously, distinguished counsel have either failed to grasp the full impact of the portions of Our decision
they have quoted or would misapply them by taking them out of context.

97 |C o n s t i t u t i o n a l L a w I P a g e 1
There should be no more doubt as to the position of this Court regarding its jurisdiction vis-a-vis the
constitutionality of the acts of the Congress, acting as a constituent assembly, and, for that matter, those of a
constitutional convention called for the purpose of proposing amendments to the Constitution, which
concededly is at par with the former. A simple reading of Our ruling in that very case of Gonzales relied upon
by intervenors should dispel any lingering misgivings as regards that point. Succinctly but comprehensively,
Chief Justice Concepcion held for the Court thus: .

As early as Angara vs. Electoral Commission (63 Phil. 139, 157), this Court — speaking
through one of the leading members of the Constitutional Convention and a respected
professor of Constitutional Law, Dr. Jose P. Laurel — declared that "the judicial
department is the only constitutional organ which can be called upon to determine the
proper allocation of powers between the several departments and among the integral or
constituent units thereof."

It is true that in Mabanag v. Lopez Vito (supra), this Court characterizing the issue
submitted thereto as a political one declined to pass upon the question whether or not a
given number of votes cast in Congress in favor of a proposed amendment to the
Constitution — which was being submitted to the people for ratification — satisfied the
three-fourths vote requirement of the fundamental law. The force of this precedent has
been weakened, however, by Suanes v. Chief Accountant of the Senate (81 Phil.
818), Avelino v. Cuenco, (L-2851, March 4 & 14, 1949), Tañada v. Cuenco, (L-10520,
Feb. 28, 1957) and Macias v. Commission on Elections, (L-18684, Sept. 14, 1961). In the
first we held that the officers and employees of the Senate Electoral Tribunal are under
its supervision and control, not of that of the Senate President, as claimed by the latter; in
the second, this Court proceeded to determine the number of Senators necessary
for quorum in the Senate; in the third, we nullified the election, by Senators belonging to
the party having the largest number of votes in said chamber, purporting to act, on behalf
of the party having the second largest number of votes therein of two (2) Senators
belonging to the first party, as members, for the second party, of the Senate Electoral
Tribunal; and in the fourth, we declared unconstitutional an act of Congress purporting to
apportion the representatives districts for the House of Representatives, upon the ground
that the apportionment had not been made as may be possible according to the number
of inhabitants of each province. Thus we rejected the theory, advanced in these four (4)
cases that the issues therein raised were political questions the determination of which is
beyond judicial review.

Indeed, the power to amend the Constitution or to propose amendments thereto is not
included in the general grant of legislative powers to Congress (Section 1, Art. VI,
Constitution of the Philippines). It is part of the inherent powers of the people — as the
repository sovereignty in a republican state, such as ours (Section 1, Art. 11, Constitution
of the Philippines) — to make, and, hence, to amend their own Fundamental Law.
Congress may propose amendments to the Constitution merely because the same
explicitly grants such power. (Section 1, Art. XV, Constitution of the Philippines) Hence,
when exercising the same, it is said that Senators and members of the House of
Representatives act, not as members of Congress, but as component elements of
a constituent assembly. When acting as such, the members of Congress derive their

98 |C o n s t i t u t i o n a l L a w I P a g e 1
 authority from the Constitution, unlike the people, when performing the same function,
(Of amending the Constitution) for their authority does not emanate from the Constitution
— they are the very source of all powers of government including the Constitution itself.

Since, when proposing, as a constituent assembly, amendments to the Constitution, the

members of Congress derive their authority from the Fundamental Law, it follows,
necessarily, that they do not have the final say on whether or not their acts are within or
beyond constitutional limits. Otherwise, they could brush aside and set the same at
naught, contrary to the basic tenet that ours is a government of laws, not of men, and to
the rigid nature of our Constitution. Such rigidity is stressed by the fact that the
Constitution expressly confers upon the Supreme Court, (And, inferentially, to lower
courts.) the power to declare a treaty unconstitutional. (Sec. 2(1), Art. VIII of the
Constitution), despite the eminently political character of treaty-making power.

In short, the issue whether or not a Resolution of Congress — acting as a constituent

assembly — violates the Constitution is essentially justiciable not political, and, hence,
subject to judicial review, and, to the extent that this view may be inconsistent with the
stand taken in Mabanag v. Lopez Vito, (supra) the latter should be deemed modified
accordingly. The Members of the Court are unanimous on this point.

No one can rightly claim that within the domain of its legitimate authority, the Convention is not supreme.
Nowhere in his petition and in his oral argument and memoranda does petitioner point otherwise. Actually,
what respondents and intervenors are seemingly reluctant to admit is that the Constitutional Convention of
1971, as any other convention of the same nature, owes its existence and derives all its authority and power
from the existing Constitution of the Philippines. This Convention has not been called by the people directly
as in the case of a revolutionary convention which drafts the first Constitution of an entirely new government
born of either a war of liberation from a mother country or of a revolution against an existing government or of
a bloodless seizure of power a la coup d'etat. As to such kind of conventions, it is absolutely true that the
convention is completely without restrain and omnipotent all wise, and it is as to such conventions that the
remarks of Delegate Manuel Roxas of the Constitutional Convention of 1934 quoted by Senator Pelaez refer.
No amount of rationalization can belie the fact that the current convention came into being only because it
was called by a resolution of a joint session of Congress acting as a constituent assembly by authority of
Section 1, Article XV of the present Constitution which provides:

ARTICLE XV — AMENDMENTS

SECTION 1. The Congress in joint session assembled, by a vote of three-fourths of all

the Members of the Senate and of the House of Representatives voting separately, may
propose amendments to this Constitution or call a convention for the purpose. Such
amendments shall be valid as part of this Constitution when approved by a majority of
the votes cast at an election at which the amendments are submitted to the people for
their ratification.

True it is that once convened, this Convention became endowed with extra ordinary powers generally
beyond the control of any department of the existing government, but the compass of such powers can be

99 |C o n s t i t u t i o n a l L a w I P a g e 1
co-extensive only with the purpose for which the convention was called and as it may propose cannot have
any effect as part of the Constitution until the same are duly ratified by the people, it necessarily follows that
the acts of convention, its officers and members are not immune from attack on constitutional grounds. The
present Constitution is in full force and effect in its entirety and in everyone of its parts the existence of the
Convention notwithstanding, and operates even within the walls of that assembly. While it is indubitable that
in its internal operation and the performance of its task to propose amendments to the Constitution it is not
subject to any degree of restraint or control by any other authority than itself, it is equally beyond cavil that
neither the Convention nor any of its officers or members can rightfully deprive any person of life, liberty or
property without due process of law, deny to anyone in this country the equal protection of the laws or the
freedom of speech and of the press in disregard of the Bill of Rights of the existing Constitution. Nor, for that
matter, can such Convention validly pass any resolution providing for the taking of private property without
just compensation or for the imposition or exacting of any tax, impost or assessment, or declare war or call
the Congress to a special session, suspend the privilege of the writ of habeas corpus, pardon a convict or
render judgment in a controversy between private individuals or between such individuals and the state, in
violation of the distribution of powers in the Constitution.

It being manifest that there are powers which the Convention may not and cannot validly assert, much less
exercise, in the light of the existing Constitution, the simple question arises, should an act of the Convention
be assailed by a citizen as being among those not granted to or inherent in it, according to the existing
Constitution, who can decide whether such a contention is correct or not? It is of the very essence of the rule
of law that somehow somewhere the Power and duty to resolve such a grave constitutional question must be
lodged on some authority, or we would have to confess that the integrated system of government established
by our founding fathers contains a wide vacuum no intelligent man could ignore, which is naturally unworthy
of their learning, experience and craftsmanship in constitution-making.

We need not go far in search for the answer to the query We have posed. The very decision of Chief Justice
Concepcion in Gonzales, so much invoked by intervenors, reiterates and reinforces the irrefutable logic and
wealth of principle in the opinion written for a unanimous Court by Justice Laurel in Angara vs. Electoral
Commission, 63 Phil., 134, reading:

... (I)n the main, the Constitution has blocked out with deft strokes and in bold lines,
allotment of power to the executive, the legislative and the judicial departments of the
government. The overlapping and interlacing of functions and duties between the several
departments, however, sometimes makes it hard to say where the one leaves off and the
other begins. In times of social disquietude or political excitement, the great landmark of
the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of
conflict, the judicial department is the only constitutional organ which can be called upon
to determine the proper allocation of powers between the several departments and
among the integral or constituent units thereof.

As any human production our Constitution is of course lacking perfection and

perfectibility, but as much as it was within the power of our people, acting through their
delegates to so provide, that instrument which is the expression of their sovereignty
however limited, has established a republican government intended to operate and
function as a harmonious whole, under a system of check and balances and subject to
specific limitations and restrictions provided in the said instrument. The Constitution sets

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forth in no uncertain language the restrictions and limitations upon governmental powers
and agencies. If these restrictions and limitations are transcended it would be
inconceivable if the Constitution had not provided for a mechanism by which to direct the
course of government along constitutional channels, for then the distribution of powers
would be mere verbiage, the bill of rights mere expressions of sentiment and the
principles of good government mere political apothegms. Certainly the limitations and
restrictions embodied in our Constitution are real as they should be in any living
Constitution. In the United States where no express constitutional grant is found in their
constitution, the possession of this moderating power of the courts, not to speak of its
historical origin and development there, has been set at rest by popular acquiescence for
a period of more than one and half centuries. In our case, this moderating power is
granted, if not expressly, by clear implication from section 2 of Article VIII of our
Constitution.

The Constitution is a definition of the powers or government. Who is to determine the

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

But much as we might postulate on the internal checks of power provided in our
Constitution, it ought not the less to be remembered that, in the language of James
Madison, the system itself is not "the chief palladium of constitutional liberty ... the people
who are authors of this blessing must also be its guardians ... their eyes must be ever
ready to mark, their voices to pronounce ... aggression on the authority of their
Constitution." In the last and ultimate analysis then, must the success of our government
in the unfolding years to come be tested in the crucible of Filipino minds and hearts than
in consultation rooms and court chambers.

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In the case at bar, the National Assembly has by resolution (No. 8) of December 3, 1935,
confirmed the election of the herein petitioner to the said body. On the other hand, the
Electoral Commission has by resolution adopted on December 9, 1935, fixed said date
as the last day for the filing of protests against the election, returns and qualifications of
members of the National Assembly; notwithstanding the previous confirmations made by
the National Assembly as aforesaid. If, as contended by the petitioner, the resolution of
the National Assembly has the effect of cutting off the power of the Electoral Commission
to entertain protests against the election, returns and qualifications of members of the
National Assembly, submitted after December 3, 1935 then the resolution of the Electoral
Commission of December 9, 1935, is mere surplusage and had no effect. But, if, as
contended by the respondents, the Electoral Commission has the sole power of
regulating its proceedings to the exclusion of the National Assembly, then the resolution
of December 9, 1935, by which the Electoral Commission fixed said date as the last day
for filing protests against the election, returns and qualifications of members of the
National Assembly, should be upheld.

Here is then presented an actual controversy involving as it does a conflict of a grave

constitutional nature between the National Assembly on the one hand and the Electoral
Commission on the other. From the very nature of the republican government
established in our country in the light of American experience and of our own, upon the
judicial department is thrown the solemn and inescapable obligation of interpreting the
Constitution and defining constitutional boundaries. The Electoral Commission as we
shall have occasion to refer hereafter, is a constitutional organ, created for a specific
purpose, namely, to determine all contests relating to the election, returns and
qualifications of the members of the National Assembly. Although the Electoral
Commission may not be interfered with, when and while acting within the limits of its
authority, it does not follow that it is beyond the reach of the constitutional mechanism
adopted by the people and that it is not subject to constitutional restriction. The Electoral
Commission is not a separate department of the government, and even if it were,
conflicting claims of authority under the fundamental law between departmental powers
and agencies of the government are necessarily determined by the judiciary in justiciable
and appropriate cases. Discarding the English type and other European types of
constitutional government, the framers of our Constitution adopted the American type
where the written constitution is interpreted and given effect by the judicial department. In
some countries which have declined to follow the American example, provisions have
been inserted in their constitutions prohibiting the courts from exercising the power to
interpret the fundamental law. This is taken as a recognition of what otherwise would be
the rule that in the absence of direct prohibition, courts are bound to assume what is
logically their function. For instance, the Constitution of Poland of 1921 expressly
provides that courts shall have no power to examine the validity of statutes (art. 81,
Chap. IV). The former Austrian Constitution contained a similar declaration. In countries
whose constitution are silent in this respect, courts have assumed this power. This is true
in Norway, Greece, Australia and South Africa. Whereas, in Czechoslovakia (arts. 2 and
3, Preliminary Law to Constitutional Charter of the Czechoslavak, Republic, February 29,
1920) and Spain (arts. 121-123, Title IX, Constitution of the Republic of 1931) especial
constitutional courts are established to pass upon the validity of ordinary laws. In our

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 case, the nature of the present controversy shows the necessity of a final constitutional
arbiter to determine the conflict of authority between two agencies created by the
Constitution. Were we to decline to take cognizance of the controversy, who will
determine the conflict? And if the conflict were left undecided and undetermined, would
not a void be thus created in our constitutional system which may in the long run prove
destructive of the entire framework? To ask these questions is to answer them. Natura
vacuum abhorret, so must we avoid exhaustion in our constitutional system. Upon
principle, reason, and authority, we are clearly of the opinion that upon the admitted facts
of the present case, this court has jurisdiction over the Electoral Commission and the
subject matter of the present controversy for the purpose of determining the character,
scope and extent of the constitutional grant to the Electoral Commission as "the sole
judge of all contests relating to the election, returns and qualifications of the members of
the National Assembly." .

As the Chief Justice has made it clear in Gonzales, like Justice Laurel did in Angara, these postulates just
quoted do not apply only to conflicts of authority between the three existing regular departments of the
government but to all such conflicts between and among these departments, or, between any of them, on the
one hand, and any other constitutionally created independent body, like the electoral tribunals in Congress,
the Comelec and the Constituent assemblies constituted by the House of Congress, on the other. We see no
reason of logic or principle whatsoever, and none has been convincingly shown to Us by any of the
respondents and intervenors, why the same ruling should not apply to the present Convention, even if it is an
assembly of delegate elected directly by the people, since at best, as already demonstrated, it has been
convened by authority of and under the terms of the present Constitution..

Accordingly, We are left with no alternative but to uphold the jurisdiction of the Court over the present case. It
goes without saying that We do this not because the Court is superior to the Convention or that the
Convention is subject to the control of the Court, but simply because both the Convention and the Court are
subject to the Constitution and the rule of law, and "upon principle, reason and authority," per Justice Laurel,
supra, it is within the power as it is the solemn duty of the Court, under the existing Constitution to resolve
the issues in which petitioner, respondents and intervenors have joined in this case.

II

The issue of jurisdiction thus resolved, We come to the crux of the petition. Is it within the powers of the
Constitutional Convention of 1971 to order, on its own fiat, the holding of a plebiscite for the ratification of the
proposed amendment reducing to eighteen years the age for the exercise of suffrage under Section 1 of
Article V of the Constitution proposed in the Convention's Organic Resolution No. 1 in the manner and form
provided for in said resolution and the subsequent implementing acts and resolution of the Convention?

At the threshold, the environmental circumstances of this case demand the most accurate and unequivocal
statement of the real issue which the Court is called upon to resolve. Petitioner has very clearly stated that
he is not against the constitutional extension of the right of suffrage to the eighteen-year-olds, as a matter of
fact, he has advocated or sponsored in Congress such a proposal, and that, in truth, the herein petition is not
intended by him to prevent that the proposed amendment here involved be submitted to the people for
ratification, his only purpose in filing the petition being to comply with his sworn duty to prevent, Whenever he

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can, any violation of the Constitution of the Philippines even if it is committed in the course of or in
connection with the most laudable undertaking. Indeed, as the Court sees it, the specific question raised in
this case is limited solely and only to the point of whether or not it is within the power of the Convention to
call for a plebiscite for the ratification by the people of the constitutional amendment proposed in the
abovequoted Organic Resolution No. 1, in the manner and form provided in said resolution as well as in the
subject question implementing actions and resolution of the Convention and its officers, at this juncture of its
proceedings, when as it is a matter of common knowledge and judicial notice, it is not set to adjourn sine die,
and is, in fact, still in the preliminary stages of considering other reforms or amendments affecting other parts
of the existing Constitution; and, indeed, Organic Resolution No. 1 itself expressly provides, that the
amendment therein proposed "shall be without prejudice to other amendments that will be proposed in the
future by the 1971 Constitutional Convention on other portions of the amended section or on other portions of
the entire Constitution." In other words, nothing that the Court may say or do, in this case should be
understood as reflecting, in any degree or means the individual or collective stand of the members of the
Court on the fundamental issue of whether or not the eighteen-year-olds should be allowed to vote, simply
because that issue is not before Us now. There should be no doubt in the mind of anyone that, once the
Court finds it constitutionally permissible, it will not hesitate to do its part so that the said proposed
amendment may be presented to the people for their approval or rejection.

Withal, the Court rests securely in the conviction that the fire and enthusiasm of the youth have not blinded
them to the absolute necessity, under the fundamental principles of democracy to which the Filipino people is
committed, of adhering always to the rule of law. Surely, their idealism, sincerity and purity of purpose cannot
permit any other line of conduct or approach in respect of the problem before Us. The Constitutional
Convention of 1971 itself was born, in a great measure, because of the pressure brought to bear upon the
Congress of the Philippines by various elements of the people, the youth in particular, in their incessant
search for a peaceful and orderly means of bringing about meaningful changes in the structure and bases of
the existing social and governmental institutions, including the provisions of the fundamental law related to
the well-being and economic security of the underprivileged classes of our people as well as those
concerning the preservation and protection of our natural resources and the national patrimony, as an
alternative to violent and chaotic ways of achieving such lofty ideals. In brief, leaving aside the excesses of
enthusiasm which at times have justifiably or unjustifiably marred the demonstrations in the streets, plazas
and campuses, the youth of the Philippines, in general, like the rest of the people, do not want confusion and
disorder, anarchy and violence; what they really want are law and order, peace and orderliness, even in the
pursuit of what they strongly and urgently feel must be done to change the present order of things in this
Republic of ours. It would be tragic and contrary to the plain compulsion of these perspectives, if the Court
were to allow itself in deciding this case to be carried astray by considerations other than the imperatives of
the rule of law and of the applicable provisions of the Constitution. Needless to say, in a larger measure than
when it binds other departments of the government or any other official or entity, the Constitution imposes
upon the Court the sacred duty to give meaning and vigor to the Constitution, by interpreting and construing
its provisions in appropriate cases with the proper parties, and by striking down any act violative thereof.
Here, as in all other cases, We are resolved to discharge that duty.

During these twice when most anyone feels very strongly the urgent need for constitutional reforms, to the
point of being convinced that meaningful change is the only alternative to a violent revolution, this Court
would be the last to put any obstruction or impediment to the work of the Constitutional Convention. If there
are respectable sectors opining that it has not been called to supplant the existing Constitution in its entirety,
since its enabling provision, Article XV, from which the Convention itself draws life expressly speaks only of

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amendments which shall form part of it, which opinion is not without persuasive force both in principle and in
logic, the seemingly prevailing view is that only the collective judgment of its members as to what is
warranted by the present condition of things, as they see it, can limit the extent of the constitutional
innovations the Convention may propose, hence the complete substitution of the existing constitution is not
beyond the ambit of the Convention's authority. Desirable as it may be to resolve, this grave divergence of
views, the Court does not consider this case to be properly the one in which it should discharge its
constitutional duty in such premises. The issues raised by petitioner, even those among them in which
respondents and intervenors have joined in an apparent wish to have them squarely passed upon by the
Court do not necessarily impose upon Us the imperative obligation to express Our views thereon. The Court
considers it to be of the utmost importance that the Convention should be untrammelled and unrestrained in
the performance of its constitutionally as signed mission in the manner and form it may conceive best, and so
the Court may step in to clear up doubts as to the boundaries set down by the Constitution only when and to
the specific extent only that it would be necessary to do so to avoid a constitutional crisis or a clearly
demonstrable violation of the existing Charter. Withal, it is a very familiar principle of constitutional law that
constitutional questions are to be resolved by the Supreme Court only when there is no alternative but to do
it, and this rule is founded precisely on the principle of respect that the Court must accord to the acts of the
other coordinate departments of the government, and certainly, the Constitutional Convention stands almost
in a unique footing in that regard.

In our discussion of the issue of jurisdiction, We have already made it clear that the Convention came into
being by a call of a joint session of Congress pursuant to Section I of Article XV of the Constitution, already
quoted earlier in this opinion. We reiterate also that as to matters not related to its internal operation and the
performance of its assigned mission to propose amendments to the Constitution, the Convention and its
officers and members are all subject to all the provisions of the existing Constitution. Now We hold that even
as to its latter task of proposing amendments to the Constitution, it is subject to the provisions of Section I of
Article XV. This must be so, because it is plain to Us that the framers of the Constitution took care that the
process of amending the same should not be undertaken with the same ease and facility in changing an
ordinary legislation. Constitution making is the most valued power, second to none, of the people in a
constitutional democracy such as the one our founding fathers have chosen for this nation, and which we of
the succeeding generations generally cherish. And because the Constitution affects the lives, fortunes, future
and every other conceivable aspect of the lives of all the people within the country and those subject to its
sovereignty, every degree of care is taken in preparing and drafting it. A constitution worthy of the people for
which it is intended must not be prepared in haste without adequate deliberation and study. It is obvious that
correspondingly, any amendment of the Constitution is of no less importance than the whole Constitution
itself, and perforce must be conceived and prepared with as much care and deliberation. From the very
nature of things, the drafters of an original constitution, as already observed earlier, operate without any
limitations, restraints or inhibitions save those that they may impose upon themselves. This is not necessarily
true of subsequent conventions called to amend the original constitution. Generally, the framers of the latter
see to it that their handiwork is not lightly treated and as easily mutilated or changed, not only for reasons
purely personal but more importantly, because written constitutions are supposed to be designed so as to
last for some time, if not for ages, or for, at least, as long as they can be adopted to the needs and
exigencies of the people, hence, they must be insulated against precipitate and hasty actions motivated by
more or less passing political moods or fancies. Thus, as a rule, the original constitutions carry with them
limitations and conditions, more or less stringent, made so by the people themselves, in regard to the
process of their amendment. And when such limitations or conditions are so incorporated in the original

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constitution, it does not lie in the delegates of any subsequent convention to claim that they may ignore and
disregard such conditions because they are as powerful and omnipotent as their original counterparts.

Nothing of what is here said is to be understood as curtailing in any degree the number and nature and the
scope and extent of the amendments the Convention may deem proper to propose. Nor does the Court
propose to pass on the issue extensively and brilliantly discussed by the parties as to whether or not the
power or duty to call a plebiscite for the ratification of the amendments to be proposed by the Convention is
exclusively legislative and as such may be exercised only by the Congress or whether the said power can be
exercised concurrently by the Convention with the Congress. In the view the Court takes of present case, it
does not perceive absolute necessity to resolve that question, grave and important as it may be. Truth to tell,
the lack of unanimity or even of a consensus among the members of the Court in respect to this issue
creates the need for more study and deliberation, and as time is of the essence in this case, for obvious
reasons, November 8, 1971, the date set by the Convention for the plebiscite it is calling, being nigh, We will
refrain from making any pronouncement or expressing Our views on this question until a more appropriate
case comes to Us. After all, the basis of this decision is as important and decisive as any can be.

The ultimate question, therefore boils down to this: Is there any limitation or condition in Section 1 of Article
XV of the Constitution which is violated by the act of the Convention of calling for a plebiscite on the sole
amendment contained in Organic Resolution No. 1? The Court holds that there is, and it is the condition and
limitation that all the amendments to be proposed by the same Convention must be submitted to the people
in a single "election" or plebiscite. It being indisputable that the amendment now proposed to be submitted to
a plebiscite is only the first amendment the Convention propose We hold that the plebiscite being called for
the purpose of submitting the same for ratification of the people on November 8, 1971 is not authorized by
Section 1 of Article XV of the Constitution, hence all acts of the Convention and the respondent Comelec in
that direction are null and void.

We have arrived at this conclusion for the following reasons:

1. The language of the constitutional provision aforequoted is sufficiently clear. lt says distinctly that either
Congress sitting as a constituent assembly or a convention called for the purpose "may propose
amendments to this Constitution," thus placing no limit as to the number of amendments that Congress or the
Convention may propose. The same provision also as definitely provides that "such amendments shall be
valid as part of this Constitution when approved by a majority of the votes cast at an election at which
the amendments are submitted to the people for their ratification," thus leaving no room for doubt as to how
many "elections" or plebiscites may be held to ratify any amendment or amendments proposed by the same
constituent assembly of Congress or convention, and the provision unequivocably says "an election" which
means only one.

(2) Very little reflection is needed for anyone to realize the wisdom and appropriateness of this provision. As
already stated, amending the Constitution is as serious and important an undertaking as constitution making
itself. Indeed, any amendment of the Constitution is as important as the whole of it if only because the
Constitution has to be an integrated and harmonious instrument, if it is to be viable as the framework of the
government it establishes, on the one hand, and adequately formidable and reliable as the succinct but
comprehensive articulation of the rights, liberties, ideology, social ideals, and national and nationalistic

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policies and aspirations of the people, on the other. lt is inconceivable how a constitution worthy of any
country or people can have any part which is out of tune with its other parts..

A constitution is the work of the people thru its drafters assembled by them for the purpose. Once the original
constitution is approved, the part that the people play in its amendment becomes harder, for when a whole
constitution is submitted to them, more or less they can assumed its harmony as an integrated whole, and
they can either accept or reject it in its entirety. At the very least, they can examine it before casting their vote
and determine for themselves from a study of the whole document the merits and demerits of all or any of its
parts and of the document as a whole. And so also, when an amendment is submitted to them that is to form
part of the existing constitution, in like fashion they can study with deliberation the proposed amendment in
relation to the whole existing constitution and or any of its parts and thereby arrive at an intelligent judgment
as to its acceptability.

This cannot happen in the case of the amendment in question. Prescinding already from the fact that under
Section 3 of the questioned resolution, it is evident that no fixed frame of reference is provided the voter, as
to what finally will be concomitant qualifications that will be required by the final draft of the constitution to be
formulated by the Convention of a voter to be able to enjoy the right of suffrage, there are other
considerations which make it impossible to vote intelligently on the proposed amendment, although it may
already be observed that under Section 3, if a voter would favor the reduction of the voting age to eighteen
under conditions he feels are needed under the circumstances, and he does not see those conditions in the
ballot nor is there any possible indication whether they will ever be or not, because Congress has reserved
those for future action, what kind of judgment can he render on the proposal?

But the situation actually before Us is even worse. No one knows what changes in the fundamental principles
of the constitution the Convention will be minded to approve. To be more specific, we do not have any means
of foreseeing whether the right to vote would be of any significant value at all. Who can say whether or not
later on the Convention may decide to provide for varying types of voters for each level of the political units it
may divide the country into. The root of the difficulty in other words, lies in that the Convention is precisely on
the verge of introducing substantial changes, if not radical ones, in almost every part and aspect of the
existing social and political order enshrined in the present Constitution. How can a voter in the proposed
plebiscite intelligently determine the effect of the reduction of the voting age upon the different institutions
which the Convention may establish and of which presently he is not given any idea?

We are certain no one can deny that in order that a plebiscite for the ratification of an amendment to the
Constitution may be validly held, it must provide the voter not only sufficient time but ample basis for an
intelligent appraisal of the nature of the amendment per se as well as its relation to the other parts of the
Constitution with which it has to form a harmonious whole. In the context of the present state of things, where
the Convention has hardly started considering the merits of hundreds, if not thousands, of proposals to
amend the existing Constitution, to present to the people any single proposal or a few of them cannot comply
with this requirement. We are of the opinion that the present Constitution does not contemplate in Section 1
of Article XV a plebiscite or "election" wherein the people are in the dark as to frame of reference they can
base their judgment on. We reject the rationalization that the present Constitution is a possible frame of
reference, for the simple reason that intervenors themselves are stating that the sole purpose of the
proposed amendment is to enable the eighteen year olds to take part in the election for the ratification of the
Constitution to be drafted by the Convention. In brief, under the proposed plebiscite, there can be, in the

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language of Justice Sanchez, speaking for the six members of the Court in Gonzales, supra, "no proper
submission".

III

The Court has no desire at all to hamper and hamstring the noble work of the Constitutional Convention.
Much less does the Court want to pass judgment on the merits of the proposal to allow these eighteen years
old to vote. But like the Convention, the Court has its own duties to the people under the Constitution which
is to decide in appropriate cases with appropriate parties Whether or not the mandates of the fundamental
law are being complied with. In the best light God has given Us, we are of the conviction that in providing for
the questioned plebiscite before it has finished, and separately from, the whole draft of the constitution it has
been called to formulate, the Convention's Organic Resolution No. 1 and all subsequent acts of the
Convention implementing the same violate the condition in Section 1, Article XV that there should only be
one "election" or plebiscite for the ratification of all the amendments the Convention may propose. We are
not denying any right of the people to vote on the proposed amendment; We are only holding that under
Section 1, Article XV of the Constitution, the same should be submitted to them not separately from but
together with all the other amendments to be proposed by this present Convention.

IN VIEW OF ALL THE FOREGOING, the petition herein is granted. Organic Resolution No. 1 of the
Constitutional Convention of 1971 and the implementing acts and resolutions of the Convention, insofar as
they provide for the holding of a plebiscite on November 8, 1971, as well as the resolution of the respondent
Comelec complying therewith (RR Resolution No. 695) are hereby declared null and void. The respondents
Comelec, Disbursing Officer, Chief Accountant and Auditor of the Constitutional Convention are hereby
enjoined from taking any action in compliance with the said organic resolution. In view of the peculiar
circumstances of this case, the Court declares this decision immediately executory. No costs.

Concepcion, C.J., Teehankee, Villamor and Makasiar, JJ., concur.

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 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-68635 May 14, 1987

IN THE MATTER OF PROCEEDINGS FOR DISCIPLINARY ACTION AGAINST ATTY. WENCESLAO

LAURETA, AND OF CONTEMPT PROCEEDINGS AGAINST EVA MARAVILLA-ILUSTRE in G.R. No.
68635, entitled "EVA MARAVILLA-ILUSTRE, vs. HON. INTERMEDIATE APPELLATE COURT, ET AL."

RESOLUTION

PER CURIAM:

Before us are 1) Atty. Wenceslao Laureta's Motion for Reconsideration of the Per Curiam Resolution of this
Court promulgated on March 12, 1987, finding him guilty of grave professional misconduct and suspending
him indefinitely from the practice of law; and 2) Eva Maravilla-Ilustre's Motion for Reconsideration of the
same Resolution holding her in contempt and ordering her to pay a fine of P1,000.00.

Essentially, Atty. Laureta maintains that the Order of suspension without hearing violated his right to life and
due process of law and by reason thereof the Order is null and void; that the acts of misconduct imputed to
him are without basis; that the charge against him that it was he who had circulated to the press copies of the
Complaint filed before the Tanodbayan is unfounded such that, even in this Court's Resolution, his having
distributed copies to the press is not stated positively; that the banner headline which appeared In the Daily
Express is regrettable but that he was not responsible for such "misleading headline;" that he "did nothing of
the sort" being fully conscious of his responsibilities as a law practitioner and officer of the Court; that as a
former newspaperman, he would not have been satisfied with merely circulating copies of the Complaint to
the press in envelopes where his name appears; "he himself would have written stories about the case in a
manner that sells newspapers; even a series of juicy articles perhaps, something that would have further
subjected the respondent justices to far worse publicity;" that, on the contrary, the press conference
scheduled by Ilustre was cancelled through his efforts in order to prevent any further adverse publicity
resulting from the filing of the complaint before the Tanodbayan; that, as a matter of fact, it was this Court's
Resolution that was serialized in the Bulletin Today, which newspaper also made him the subject of a
scathing editorial but that he "understands the cooperation because after all, the Court rendered a favorable
judgment in the Bulletin union case last year;" that he considered it "below his dignity to plead for the chance
to present his side" with the Editor, Mr. Ben Rodriguez, "a long-time personal friend" since he "can afford to
be the sacrificial lamb if only to help the Honorable Court uphold its integrity;" that he was called by a reporter
of DZRH and was asked to comment on the case filed before the Tanodbayan but that his remarks were
confined to the filing of the case by Ilustre herself, and that the judgment of the trial Court had attained its
finality long ago; that he is not Ilustre's counsel before the Tanodbayan and did not prepare the complaint
filed before it, his professional services having been terminated upon the final dismissal of Ilustre's case

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before this Court; that similarities in the language and phraseology used in the Ilustre letters, in pleadings
before this Court and before the Tanodbayan do not prove his authorship since other lawyers "even of a
mediocre caliber" could very easily have reproduced them; that the discussions on the merits in the Per
Curiam Resolution are "more properly addressed to the Tanodbayan, Justice Raul M. Gonzales being
competent to deal with the case before him;" that he takes exception to the accusation that he has
manifested lack of respect for and exposed to public ridicule the two highest Courts of the land, all he did
having been to call attention to errors or injustice committed in the promulgation of judgments or orders; that
he has "not authorized or assisted and/or abetted and could not have prevented the contemptuous
statements, conduct, acts and malicious charges of Eva Maravilla Ilustre who was no longer his client when
these alleged acts were done; that "he is grateful to this Court for the reminder on the first duty of a lawyer
which is to the Court and not to his client, a duty that he has always impressed upon his law students;" and
finally, that "for the record, he is sorry for the adverse publicity generated by the filing of the complaint
against the Justices before the Tanodbayan."

In her own Motion for Reconsideration, Eva Maravilla-Ilustre also raises as her main ground the alleged
deprivation of her constitutional right to due process. She maintains that as contempt proceedings are
commonly treated as criminal in nature, the mode of procedure and rules of evidence in criminal prosecution
should be assimilated, as far as practicable, in this proceeding, and that she should be given every
opportunity to present her side. Additionally, she states that, with some sympathetic lawyers, they made an
"investigation" and learned that the Resolution of the First Division was arrived at without any deliberation by
its members; that Court personnel were "tight-lipped about the matter, which is shrouded mystery" thereby
prompting her to pursue a course which she thought was legal and peaceful; that there is nothing wrong in
making public the manner of voting by the Justices, and it was for that reason that she addressed Identical
letters to Associate Justices Andres Narvasa, Ameurfina M. Herrera, Isagani Cruz and Florentino Feliciano;
that "if the lawyers of my opponents were not a Solicitor General, and member of the Supreme Court and a
Division Chairman, respectively, the resolution of May 14, 1986 would not have aroused my suspicion;" that
instead of taking the law into her own hands or joining any violent movement, she took the legitimate step of
making a peaceful investigation into how her case was decided, and brought her grievance to the
Tanodbayan "in exasperation" against those whom she felt had committed injustice against her "in an
underhanded manner."

We deny reconsideration in both instances.

The argument premised on lack of hearing and due process, is not impressed with merit. What due process
abhors is absolute lack of opportunity to be heard (Tajonera vs. Lamaroza, et al., 110 SCRA 438 [1981]).
The word "hearing" does not necessarily connote a "trial-type" proceeding. In the show-cause Resolution of
this Court, dated January 29, 1987, Atty. Laureta was given sufficient opportunity to inform this Court of the
reasons why he should not be subjected to dispose action. His Answer, wherein he prayed that the action
against him be dismissed, contained twenty-two (22) pages, double spaced. Eva Maravilla-Ilustre was also
given a like opportunity to explain her statements, conduct, acts and charges against the Court and/or the
official actions of the Justices concerned. Her Compliance Answer, wherein she prayed that the contempt
proceeding against her be dismissed, contained nineteen (19) pages, double spaced. Both were afforded
ample latitude to explain matters fully. Atty. Laureta denied having authored the letters written by Ilustre, his
being her counsel before the Tanodbayan, his having circularized to the press copies of the complaint filed
before said body, and his having committed acts unworthy of his profession. But the Court believed
otherwise and found that those letters and the charges levelled against the Justices concerned, of

110 |C o n s t i t u t i o n a l L a w I P a g e 1
themselves and by themselves, betray not only their malicious and contemptuous character, but also the lack
of respect for the two highest Courts of the land, a complete obliviousness to the fundamental principle of
separation of powers, and a wanton disregard of the cardinal doctrine of independence of the Judiciary. Res
ipsa loquitur. Nothing more needed to have been said or proven. The necessity to conduct any further
evidentially hearing was obviated (See People vs. Hon. Valenzuela, G.R. Nos. 63950-60, April 19, 1985, 135
SCRA 712). Atty. Laureta and Ilustre were given ample opportunity to be heard, and were, in fact, heard.

(1)

In his Motion for Reconsideration, Atty. Laureta reiterates his allegations in his Answer to the show-cause
Resolution that his professional services were terminated by Ilustre after the dismissal of the main petition by
this Court; that he had nothing to do with the contemptuous letters to the individual Justices; and that he is
not Ilustre's counsel before the Tanodbayan.

Significantly enough, however, copy of the Tanodbayan Resolution dismissing Ilustre's Complaint was
furnished Atty. Laureta as "counsel for the complainant" at his address of record. Of note, too, is the fact that
it was he who was following up the Complaint before the Tanodbayan and, after its dismissal, the Motion for
Reconsideration of the Order of dismissal.

Of import, as well, is the report of Lorenzo C. Bardel, a process server of this Court, that after having failed to
serve copy of the Per Curiam Resolution of March 12, 1987 of this Court on Ilustre personally at her address
of record, "101 F. Manalo St., Cubao, Quezon City," having been informed that she is 6 not a resident of the
place," he proceeded to the residence of Atty. Laureta where the latter's wife "voluntarily received the two
copies of decision for her husband and for Ms. Maravina-Ilustre" (p. 670, Rollo, Vol. 11).

That Ilustre subsequently received copy of this Court's Resolution delivered to Mrs. Laureta is shown by the
fact that she filed, as of March 27, 1987, a "Petition for Extension of Time to file Motion for Reconsideration"
and subsequently the Motion for Reconsideration. In that Petition Ilustre acknowledged receipt of the
Resolution on March 12, 1987, the very same date Mrs. Laureta received copy thereof. If, indeed, the lawyer-
client relationship between her husband and Ilustre had been allegedly completely severed, all Mrs. Laureta
had to do was to return to the Sheriff the copy intended for Ilustre. As it was, however, service on Atty.
Laureta proved to be service on Ilustre as well. The close tie- up between the corespondents is heightened
by the fact that three process servers of this Court failed to serve copy of this Court's Per Curiam Resolution
on Ilustre personally.

Noteworthy, as well, is that by Atty. Laureta's own admission, he was the one called by a "reporter" of DZRH
to comment on the Ilustre charges before the Tanodbayan. If, in fact, he had nothing to do with the
complaint, he would not have been pinpointed at all. And if his disclaimer were the truth, the logical step for
him to have taken was to refer the caller to the lawyer/s allegedly assisting Ilustre, at the very least, out of
elementary courtesy and propriety. But he did nothing of the sort. " He gave his comment with alacrity.

The impudence and lack of respect of Atty. Laureta for this Court again surfaces when he asserts in his
Motion for Reconsideration that he "understands the cooperation" of the Bulletin Today as manifested in the
serialized publication of the Per Curiam Resolution of this Court and his being subjected to a scathing
editorial by the same newspaper "because after all, the Court rendered a favorable judgment in the Bulletin

111 |C o n s t i t u t i o n a l L a w I P a g e 1
union case last year." The malice lurking in that statement is most unbecoming of an officer of the Court and
is an added reason for denying reconsideration.

Further, Atty. Laureta stubbornly contends that discussions on the merits in the Court's Per Curiam
Resolution are more properly addressed to the Tanodbayan, forgetting, however, his own discourse on the
merits in his Answer to this Court's Resolution dated January 29, 1987. He thus incorrigibly insists on
subordinating the Judiciary to the executive notwithstanding the categorical pronouncement in the Per
Curiam Resolution of March 12, 1987, that Article 204 of the Revised Penal Code has no application to the
members of a collegiate Court; that a charge of violation of the Anti-Graft and Corrupt Practices Act on the
ground that a collective decision is "unjust" cannot prosper; plus the clear and extended dissertation in the
same Per Curiam Resolution on the fundamental principle of separation of powers and of checks and
balances, pursuant to which it is this Court "entrusted exclusively with the judicial power to adjudicate with
finality all justifiable disputes, public and private. No other department or agency may pass upon its
judgments or declare them 'unjust' upon controlling and irresistible reasons of public policy and of sound
practice."

Atty. Laureta's protestations that he has done his best to protect and uphold the dignity of this Court are
belied by environmental facts and circumstances. His apologetic stance for the "adverse publicity" generated
by the filing of the charges against the Justices concerned before the Tanodbayan rings with insincerity. The
complaint was calculated precisely to serve that very purpose. The threat to bring the case to "another forum
of justice" was implemented to the fun. Besides, he misses the heart of the matter. Exposure to the glare of
publicity is an occupational hazard. If he has been visited with disciplinary sanctions it is because by his
conduct, acts and statements, he has, overall, deliberately sought to destroy the "authenticity, integrity, and
conclusiveness of collegiate acts," to "undermine the role of the Supreme Court as the final arbiter of all
justifiable disputes," and to subvert public confidence in the integrity of the Courts and the Justices
concerned, and in the orderly administration of justice.

In fine, we discern nothing in Atty. Laureta's Motion for Reconsideration that would call for a modification,
much less a reversal, of our finding that he is guilty of grave professional misconduct that renders him unfit to
continue to be entrusted with the duties and responsibilities pertaining to an attorney and officer of the Court.

(2)

Neither do we find merit in Ilustre's Motion for Reconsideration. She has turned deaf ears to any reason or
clarification. She and her counsel have refused to accept the untenability of their case and the inevitability of
losing in Court. They have allowed suspicion alone to blind their actions and in so doing degraded the
administration of justice. "Investigation" was utterly uncalled for. All conclusions and judgments of the Court,
be they en banc or by Division, are arrived at only after deliberation. The fact that no dissent was indicated in
the Minutes of the proceedings held on May 14, 1986 showed that the members of the Division voted
unanimously. Court personnel are not in a position to know the voting in any case because all deliberations
are held behind closed doors without any one of them being present. No malicious inferences should have
been drawn from their inability to furnish the information Ilustre and Atty. Laureta desired The personality of
the Solicitor General never came into the picture. It was Justice Abad Santos, and not Justice Yap, who was
Chairman of the First Division when the Resolution of May 14, 1986 denying the Petition was rendered.
Thereafter Justice Yap inhibited himself from any participation. The fact that the Court en banc upheld the

112 |C o n s t i t u t i o n a l L a w I P a g e 1
challenged Resolutions of the First Division emphasizes the irrespective of Ilustre's case irrespective of the
personalities involved.

Additionally, Ilustre has been trifling with this Court. She has given our process servers the run-around.
Three of them failed to serve on her personally her copy of this Court's Per Curiam Resolution of March 12,
1987 at her address of record. Mrs. Laureta informed process server Lorenzo C. Bardel that Ilustre was
residing at 17-D, Quezon St., Tondo, Manila. Romeo C. Regala, another process server, went to that
address to serve copy of the Resolution but he reported:

4. That inspite of diligent efforts to locate the address of ms.Eva Maravilla-Ilustre, said
address could not be located;

5. That I even asked the occupants (Cerdan Family) of No. 17 Quezon Street, Tondo,
Manila, and they informed that there is no such Ms. Eva Maravilla-Ilustre in the
neighborhood and/or in the vicinity; ... (p. 672, Rollo, Vol. 11).

The third process server, Nelson C. Cabesuela, was also unable to serve copy of this Court's Resolution on
Ilustre. He reported:

2. On March 17, 1987, at about 9:30 A.M., I arrived at the house in the address furnished
at; the notice of judgment (101 Felix Manalo St., Cubao, Quezon City), and was received
by an elderly woman who admitted to be the owner of the house but vehemently refused
to be Identified, and told me that she does not know the addressee Maravilla, and told
me further that she always meets different persons looking for Miss Maravilla because
the latter always gives the address of her house;

3. That, I was reminded of an incident that I also experienced in the same place trying to
serve a resolution to Miss Maravilla which was returned unserved because she is not
known in the place; ... (p. 674, Rollo, Vol. II).

And yet, in her Petition for Extension of Time and in her Motion for Reconsideration she persists in giving that
address at 101 Felix Manalo St., Cubao, Quezon City, where our process servers were told that she was not
a resident of and that she was unknown thereat. If for her contumacious elusiveness and lack of candor
alone, Ilustre deserves no further standing before this Court.

ACCORDINGLY, the respective Motions for reconsideration of Atty. Wenceslao G. Laureta for the setting
aside of the order suspending him from the practice of law, and of Eva Maravilla Ilustre for the lifting of the
penalty for contempt are DENIED, and this denial is FINAL. Eva Maravilla Ilustre shall pay the fine of
P1,000.00 imposed on her within ten (10) days from notice, or, suffer imprisonment for ten (10) days upon
failure to pay said fine within the stipulated period.

SO ORDERED.

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Teehankee, C.J., Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco,
Padilla, Bidin, Sarmiento and Cortes, JJ., concur.

Yap, J., * took no part.

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 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 71977 February 27, 1987

DEMETRIO G. DEMETRIA, M.P., AUGUSTO S. SANCHEZ, M.P., ORLANDO S. MERCADO, M.P.,

HONORATO Y. AQUINO, M.P., ZAFIRO L. RESPICIO, M.P., DOUGLAS R. CAGAS, M.P., OSCAR F.
SANTOS, M.P., ALBERTO G. ROMULO, M.P., CIRIACO R. ALFELOR, M.P., ISIDORO E. REAL, M.P.,
EMIGDIO L. LINGAD, M.P., ROLANDO C. MARCIAL, M.P., PEDRO M. MARCELLANA, M.P., VICTOR S.
ZIGA, M.P., and ROGELIO V. GARCIA. M.P., petitioners,
vs.
HON. MANUEL ALBA in his capacity as the MINISTER OF THE BUDGET and VICTOR MACALINGCAG
in his capacity as the TREASURER OF THE PHILIPPINES, respondents.

FERNAN, J.:

Assailed in this petition for prohibition with prayer for a writ of preliminary injunction is the constitutionality of
the first paragraph of Section 44 of Presidential Decree No. 1177, otherwise known as the "Budget Reform
Decree of 1977."

Petitioners, who filed the instant petition as concerned citizens of this country, as members of the National
Assembly/Batasan Pambansa representing their millions of constituents, as parties with general interest
common to all the people of the Philippines, and as taxpayers whose vital interests may be affected by the
outcome of the reliefs prayed for" 1 listed the grounds relied upon in this petition as follows:

A. SECTION 44 OF THE 'BUDGET REFORM DECREE OF 1977' INFRINGES UPON

THE FUNDAMENTAL LAW BY AUTHORIZING THE ILLEGAL TRANSFER OF PUBLIC
MONEYS.

B. SECTION 44 OF PRESIDENTIAL DECREE NO. 1177 IS REPUGNANT TO THE

CONSTITUTION AS IT FAILS TO SPECIFY THE OBJECTIVES AND PURPOSES FOR
WHICH THE PROPOSED TRANSFER OF FUNDS ARE TO BE MADE.

C. SECTION 44 OF PRESIDENTIAL DECREE NO. 1177 ALLOWS THE PRESIDENT

TO OVERRIDE THE SAFEGUARDS, FORM AND PROCEDURE PRESCRIBED BY
THE CONSTITUTION IN APPROVING APPROPRIATIONS.

D. SECTION 44 OF THE SAME DECREE AMOUNTS TO AN UNDUE DELEGATION OF

LEGISLATIVE POWERS TO THE EXECUTIVE.

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 E. THE THREATENED AND CONTINUING TRANSFER OF FUNDS BY THE
PRESIDENT AND THE IMPLEMENTATION THEREOF BY THE BUDGET MINISTER
AND THE TREASURER OF THE PHILIPPINES ARE WITHOUT OR IN EXCESS OF
THEIR AUTHORITY AND JURISDICTION. 2

Commenting on the petition in compliance with the Court resolution dated September 19, 1985, the Solicitor
General, for the public respondents, questioned the legal standing of petitioners, who were allegedly merely
begging an advisory opinion from the Court, there being no justiciable controversy fit for resolution or
determination. He further contended that the provision under consideration was enacted pursuant to Section
16[5], Article VIII of the 1973 Constitution; and that at any rate, prohibition will not lie from one branch of the
government to a coordinate branch to enjoin the performance of duties within the latter's sphere of
responsibility.

On February 27, 1986, the Court required the petitioners to file a Reply to the Comment. This, they did,
stating, among others, that as a result of the change in the administration, there is a need to hold the
resolution of the present case in abeyance "until developments arise to enable the parties to concretize their
respective stands." 3

Thereafter, We required public respondents to file a rejoinder. The Solicitor General filed a rejoinder with a
motion to dismiss, setting forth as grounds therefor the abrogation of Section 16[5], Article VIII of the 1973
Constitution by the Freedom Constitution of March 25, 1986, which has allegedly rendered the instant
petition moot and academic. He likewise cited the "seven pillars" enunciated by Justice Brandeis
in Ashwander v. TVA, 297 U.S. 288 (1936) 4 as basis for the petition's dismissal.

In the case of Evelio B. Javier v. The Commission on Elections and Arturo F. Pacificador, G.R. Nos. 68379-
81, September 22, 1986, We stated that:

The abolition of the Batasang Pambansa and the disappearance of the office in dispute
between the petitioner and the private respondents — both of whom have gone their
separate ways — could be a convenient justification for dismissing the case. But there
are larger issues involved that must be resolved now, once and for all, not only to dispel
the legal ambiguities here raised. The more important purpose is to manifest in the
clearest possible terms that this Court will not disregard and in effect condone wrong on
the simplistic and tolerant pretext that the case has become moot and academic.

The Supreme Court is not only the highest arbiter of legal questions but also the
conscience of the government. The citizen comes to us in quest of law but we must also
give him justice. The two are not always the same. There are times when we cannot
grant the latter because the issue has been settled and decision is no longer possible
according to the law. But there are also times when although the dispute has
disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands
that we act then, not only for the vindication of the outraged right, though gone, but also
for the guidance of and as a restraint upon the future.

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It is in the discharge of our role in society, as above-quoted, as well as to avoid great disservice to national
interest that We take cognizance of this petition and thus deny public respondents' motion to dismiss.
Likewise noteworthy is the fact that the new Constitution, ratified by the Filipino people in the plebiscite held
on February 2, 1987, carries verbatim section 16[5], Article VIII of the 1973 Constitution under Section 24[5],
Article VI. And while Congress has not officially reconvened, We see no cogent reason for further delaying
the resolution of the case at bar.

The exception taken to petitioners' legal standing deserves scant consideration. The case of Pascual v.
Secretary of Public Works, et al., 110 Phil. 331, is authority in support of petitioners' locus standi. Thus:

Again, it is well-settled that the validity of a statute may be contested only by one who will
sustain a direct injury in consequence of its enforcement. Yet, there are many decisions
nullifying at the instance of taxpayers, laws providing for the disbursement of public
funds, upon the theory that the expenditure of public funds by an officer of the state for
the purpose of administering an unconstitutional actconstitutes a misapplication of such
funds which may be enjoined at the request of a taxpayer. Although there are some
decisions to the contrary, the prevailing view in the United States is stated in the
American Jurisprudence as follows:

In the determination of the degree of interest essential to give the

requisite standing to attack the constitutionality of a statute, the
general rule is that not only persons individually affected, but
also taxpayers have sufficient interest in preventing the illegal
expenditures of moneys raised by taxation and may therefore
question the constitutionality of statutes requiring expenditure of
public moneys. [ 11 Am. Jur. 761, Emphasis supplied. ]

Moreover, in Tan v. Macapagal, 43 SCRA 677 and Sanidad v. Comelec, 73 SCRA 333, We said that as
regards taxpayers' suits, this Court enjoys that open discretion to entertain the same or not.

The conflict between paragraph 1 of Section 44 of Presidential Decree No. 1177 and Section 16[5], Article
VIII of the 1973 Constitution is readily perceivable from a mere cursory reading thereof. Said paragraph 1 of
Section 44 provides:

The President shall have the authority to transfer any fund, appropriated for the different
departments, bureaus, offices and agencies of the Executive Department, which are
included in the General Appropriations Act, to any program, project or activity of any
department, bureau, or office included in the General Appropriations Act or approved
after its enactment.

On the other hand, the constitutional provision under consideration reads as follows:

Sec. 16[5]. No law shall be passed authorizing any transfer of appropriations, however,
the President, the Prime Minister, the Speaker, the Chief Justice of the Supreme Court,
and the heads of constitutional commis ions may by law be authorized to augment any

117 |C o n s t i t u t i o n a l L a w I P a g e 1
 item in the general appropriations law for their respective offices from savings in other
items of their respective appropriations.

The prohibition to transfer an appropriation for one item to another was explicit and categorical under the
1973 Constitution. However, to afford the heads of the different branches of the government and those of the
constitutional commissions considerable flexibility in the use of public funds and resources, the constitution
allowed the enactment of a law authorizing the transfer of funds for the purpose of augmenting an item from
savings in another item in the appropriation of the government branch or constitutional body concerned. The
leeway granted was thus limited. The purpose and conditions for which funds may be transferred were
specified, i.e. transfer may be allowed for the purpose of augmenting an item and such transfer may be made
only if there are savings from another item in the appropriation of the government branch or constitutional
body.

Paragraph 1 of Section 44 of P.D. No. 1177 unduly over extends the privilege granted under said Section
16[5]. It empowers the President to indiscriminately transfer funds from one department, bureau, office or
agency of the Executive Department to any program, project or activity of any department, bureau or office
included in the General Appropriations Act or approved after its enactment, without regard as to whether or
not the funds to be transferred are actually savings in the item from which the same are to be taken, or
whether or not the transfer is for the purpose of augmenting the item to which said transfer is to be made. It
does not only completely disregard the standards set in the fundamental law, thereby amounting to an undue
delegation of legislative powers, but likewise goes beyond the tenor thereof. Indeed, such constitutional
infirmities render the provision in question null and void.

"For the love of money is the root of all evil: ..." and money belonging to no one in particular, i.e. public funds,
provide an even greater temptation for misappropriation and embezzlement. This, evidently, was foremost in
the minds of the framers of the constitution in meticulously prescribing the rules regarding the appropriation
and disposition of public funds as embodied in Sections 16 and 18 of Article VIII of the 1973 Constitution.
Hence, the conditions on the release of money from the treasury [Sec. 18(1)]; the restrictions on the use of
public funds for public purpose [Sec. 18(2)]; the prohibition to transfer an appropriation for an item to another
[See. 16(5) and the requirement of specifications [Sec. 16(2)], among others, were all safeguards designed
to forestall abuses in the expenditure of public funds. Paragraph 1 of Section 44 puts all these safeguards to
naught. For, as correctly observed by petitioners, in view of the unlimited authority bestowed upon the
President, "... Pres. Decree No. 1177 opens the floodgates for the enactment of unfunded appropriations,
results in uncontrolled executive expenditures, diffuses accountability for budgetary performance and
entrenches the pork barrel system as the ruling party may well expand [sic] public money not on the basis of
development priorities but on political and personal expediency." 5The contention of public respondents that
paragraph 1 of Section 44 of P.D. 1177 was enacted pursuant to Section 16(5) of Article VIII of the 1973
Constitution must perforce fall flat on its face.

Another theory advanced by public respondents is that prohibition will not lie from one branch of the
government against a coordinate branch to enjoin the performance of duties within the latter's sphere of
responsibility.

Thomas M. Cooley in his "A Treatise on the Constitutional Limitations," Vol. 1, Eight Edition, Little, Brown
and Company, Boston, explained:

118 |C o n s t i t u t i o n a l L a w I P a g e 1
 ... The legislative and judicial are coordinate departments of the government, of equal
dignity; each is alike supreme in the exercise of its proper functions, and cannot directly
or indirectly, while acting within the limits of its authority, be subjected to the control or
supervision of the other, without an unwarrantable assumption by that other of power
which, by the Constitution, is not conferred upon it. The Constitution apportions the
powers of government, but it does not make any one of the three departments
subordinate to another, when exercising the trust committed to it. The courts may declare
legislative enactments unconstitutional and void in some cases, but not because the
judicial power is superior in degree or dignity to the legislative. Being required to declare
what the law is in the cases which come before them, they must enforce the Constitution,
as the paramount law, whenever a legislative enactment comes in conflict with it. But the
courts sit, not to review or revise the legislative action, but to enforce the legislative will,
and it is only where they find that the legislature has failed to keep within its constitutional
limits, that they are at liberty to disregard its action; and in doing so, they only do what
every private citizen may do in respect to the mandates of the courts when the judges
assumed to act and to render judgments or decrees without jurisdiction. "In exercising
this high authority, the judges claim no judicial supremacy; they are only the
administrators of the public will. If an act of the legislature is held void, it is not because
the judges have any control over the legislative power, but because the act is forbidden
by the Constitution, and because the will of the people, which is therein declared, is
paramount to that of their representatives expressed in any law." [Lindsay v.
Commissioners, & c., 2 Bay, 38, 61; People v. Rucker, 5 Col. 5; Russ v. Com., 210 Pa.
St. 544; 60 Atl. 169, 1 L.R.A. [N.S.] 409, 105 Am. St. Rep. 825] (pp. 332-334).

Indeed, where the legislature or the executive branch is acting within the limits of its authority, the judiciary
cannot and ought not to interfere with the former. But where the legislature or the executive acts beyond the
scope of its constitutional powers, it becomes the duty of the judiciary to declare what the other branches of
the government had assumed to do as void. This is the essence of judicial power conferred by the
Constitution "in one Supreme Court and in such lower courts as may be established by law" [Art. VIII, Section
1 of the 1935 Constitution; Art. X, Section 1 of the 1973 Constitution and which was adopted as part of the
Freedom Constitution, and Art. VIII, Section 1 of the 1987 Constitution] and which power this Court has
exercised in many instances. *

Public respondents are being enjoined from acting under a provision of law which We have earlier mentioned
to be constitutionally infirm. The general principle relied upon cannot therefore accord them the protection
sought as they are not acting within their "sphere of responsibility" but without it.

The nation has not recovered from the shock, and worst, the economic destitution brought about by the
plundering of the Treasury by the deposed dictator and his cohorts. A provision which allows even the
slightest possibility of a repetition of this sad experience cannot remain written in our statute books.

WHEREFORE, the instant petition is granted. Paragraph 1 of Section 44 of Presidential Decree No. 1177 is
hereby declared null and void for being unconstitutional.

SO ORDER RED.

119 |C o n s t i t u t i o n a l L a w I P a g e 1
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-45081 July 15, 1936

JOSE A. ANGARA, petitioner,

vs.
THE ELECTORAL COMMISSION, PEDRO YNSUA, MIGUEL CASTILLO, and DIONISIO C.
MAYOR,respondents.

Godofredo Reyes for petitioner.

Office of the Solicitor General Hilado for respondent Electoral Commission.
Pedro Ynsua in his own behalf.
No appearance for other respondents.

LAUREL, J.:

This is an original action instituted in this court by the petitioner, Jose A. Angara, for the issuance of a writ of
prohibition to restrain and prohibit the Electoral Commission, one of the respondents, from taking further
cognizance of the protest filed by Pedro Ynsua, another respondent, against the election of said petitioner as
member of the National Assembly for the first assembly district of the Province of Tayabas.

The facts of this case as they appear in the petition and as admitted by the respondents are as follows:

(1) That in the elections of September 17, 1935, the petitioner, Jose A. Angara, and the
respondents, Pedro Ynsua, Miguel Castillo and Dionisio Mayor, were candidates voted for the
position of member of the National Assembly for the first district of the Province of Tayabas;

(2) That on October 7, 1935, the provincial board of canvassers, proclaimed the petitioner as
member-elect of the National Assembly for the said district, for having received the most number of
votes;

(3) That on November 15, 1935, the petitioner took his oath of office;

(4) That on December 3, 1935, the National Assembly in session assembled, passed the following
resolution:

[No. 8]

RESOLUCION CONFIRMANDO LAS ACTAS DE AQUELLOS DIPUTADOS

CONTRA QUIENES NO SE HA PRESENTADO PROTESTA.

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 Se resuelve: Que las actas de eleccion de los Diputados contra quienes no se
hubiere presentado debidamente una protesta antes de la adopcion de la
presente resolucion sean, como por la presente, son aprobadas y confirmadas.

Adoptada, 3 de diciembre, 1935.

(5) That on December 8, 1935, the herein respondent Pedro Ynsua filed before the Electoral
Commission a "Motion of Protest" against the election of the herein petitioner, Jose A. Angara,
being the only protest filed after the passage of Resolutions No. 8 aforequoted, and praying,
among other-things, that said respondent be declared elected member of the National Assembly
for the first district of Tayabas, or that the election of said position be nullified;

(6) That on December 9, 1935, the Electoral Commission adopted a resolution, paragraph 6 of
which provides:

6. La Comision no considerara ninguna protesta que no se haya presentado en o antes

de este dia.

(7) That on December 20, 1935, the herein petitioner, Jose A. Angara, one of the respondents in
the aforesaid protest, filed before the Electoral Commission a "Motion to Dismiss the Protest",
alleging (a) that Resolution No. 8 of Dismiss the Protest", alleging (a) that Resolution No. 8 of the
National Assembly was adopted in the legitimate exercise of its constitutional prerogative to
prescribe the period during which protests against the election of its members should be
presented; (b) that the aforesaid resolution has for its object, and is the accepted formula for, the
limitation of said period; and (c) that the protest in question was filed out of the prescribed period;

(8) That on December 27, 1935, the herein respondent, Pedro Ynsua, filed an "Answer to the
Motion of Dismissal" alleging that there is no legal or constitutional provision barring the
presentation of a protest against the election of a member of the National Assembly after
confirmation;

(9) That on December 31, 1935, the herein petitioner, Jose A. Angara, filed a "Reply" to the
aforesaid "Answer to the Motion of Dismissal";

(10) That the case being submitted for decision, the Electoral Commission promulgated a
resolution on January 23, 1936, denying herein petitioner's "Motion to Dismiss the Protest."

The application of the petitioner sets forth the following grounds for the issuance of the writ prayed for:

(a) That the Constitution confers exclusive jurisdiction upon the electoral Commission solely as
regards the merits of contested elections to the National Assembly;

121 |C o n s t i t u t i o n a l L a w I P a g e 1
 (b) That the Constitution excludes from said jurisdiction the power to regulate the proceedings of
said election contests, which power has been reserved to the Legislative Department of the
Government or the National Assembly;

(c) That like the Supreme Court and other courts created in pursuance of the Constitution, whose
exclusive jurisdiction relates solely to deciding the merits of controversies submitted to them for
decision and to matters involving their internal organization, the Electoral Commission can regulate
its proceedings only if the National Assembly has not availed of its primary power to so regulate
such proceedings;

(d) That Resolution No. 8 of the National Assembly is, therefore, valid and should be respected and
obeyed;

(e) That under paragraph 13 of section 1 of the ordinance appended to the Constitution and
paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd Congress of the United
States) as well as under section 1 and 3 (should be sections 1 and 2) of article VIII of the
Constitution, this Supreme Court has jurisdiction to pass upon the fundamental question herein
raised because it involves an interpretation of the Constitution of the Philippines.

On February 25, 1936, the Solicitor-General appeared and filed an answer in behalf of the respondent
Electoral Commission interposing the following special defenses:

(a) That the Electoral Commission has been created by the Constitution as an instrumentality of
the Legislative Department invested with the jurisdiction to decide "all contests relating to the
election, returns, and qualifications of the members of the National Assembly"; that in adopting its
resolution of December 9, 1935, fixing this date as the last day for the presentation of protests
against the election of any member of the National Assembly, it acted within its jurisdiction and in
the legitimate exercise of the implied powers granted it by the Constitution to adopt the rules and
regulations essential to carry out the power and functions conferred upon the same by the
fundamental law; that in adopting its resolution of January 23, 1936, overruling the motion of the
petitioner to dismiss the election protest in question, and declaring itself with jurisdiction to take
cognizance of said protest, it acted in the legitimate exercise of its quasi-judicial functions a an
instrumentality of the Legislative Department of the Commonwealth Government, and hence said
act is beyond the judicial cognizance or control of the Supreme Court;

(b) That the resolution of the National Assembly of December 3, 1935, confirming the election of
the members of the National Assembly against whom no protest had thus far been filed, could not
and did not deprive the electoral Commission of its jurisdiction to take cognizance of election
protests filed within the time that might be set by its own rules:

(c) That the Electoral Commission is a body invested with quasi-judicial functions, created by the
Constitution as an instrumentality of the Legislative Department, and is not an "inferior tribunal, or
corporation, or board, or person" within the purview of section 226 and 516 of the Code of Civil
Procedure, against which prohibition would lie.

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The respondent Pedro Ynsua, in his turn, appeared and filed an answer in his own behalf on March 2, 1936,
setting forth the following as his special defense:

(a) That at the time of the approval of the rules of the Electoral Commission on December 9, 1935,
there was no existing law fixing the period within which protests against the election of members of
the National Assembly should be filed; that in fixing December 9, 1935, as the last day for the filing
of protests against the election of members of the National Assembly, the Electoral Commission
was exercising a power impliedly conferred upon it by the Constitution, by reason of its quasi-
judicial attributes;

(b) That said respondent presented his motion of protest before the Electoral Commission on
December 9, 1935, the last day fixed by paragraph 6 of the rules of the said Electoral Commission;

(c) That therefore the Electoral Commission acquired jurisdiction over the protest filed by said
respondent and over the parties thereto, and the resolution of the Electoral Commission of January
23, 1936, denying petitioner's motion to dismiss said protest was an act within the jurisdiction of the
said commission, and is not reviewable by means of a writ of prohibition;

(d) That neither the law nor the Constitution requires confirmation by the National Assembly of the
election of its members, and that such confirmation does not operate to limit the period within
which protests should be filed as to deprive the Electoral Commission of jurisdiction over protest
filed subsequent thereto;

(e) That the Electoral Commission is an independent entity created by the Constitution, endowed
with quasi-judicial functions, whose decision are final and unappealable;

( f ) That the electoral Commission, as a constitutional creation, is not an inferior tribunal,

corporation, board or person, within the terms of sections 226 and 516 of the Code of Civil
Procedure; and that neither under the provisions of sections 1 and 2 of article II (should be article
VIII) of the Constitution and paragraph 13 of section 1 of the Ordinance appended thereto could it
be subject in the exercise of its quasi-judicial functions to a writ of prohibition from the Supreme
Court;

(g) That paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd Congress of the
united States) has no application to the case at bar.

The case was argued before us on March 13, 1936. Before it was submitted for decision, the petitioner
prayed for the issuance of a preliminary writ of injunction against the respondent Electoral Commission which
petition was denied "without passing upon the merits of the case" by resolution of this court of March 21,
1936.

There was no appearance for the other respondents.

The issues to be decided in the case at bar may be reduced to the following two principal propositions:

123 |C o n s t i t u t i o n a l L a w I P a g e 1
 1. Has the Supreme Court jurisdiction over the Electoral Commission and the subject matter of the
controversy upon the foregoing related facts, and in the affirmative,

2. Has the said Electoral Commission acted without or in excess of its jurisdiction in assuming to
the cognizance of the protest filed the election of the herein petitioner notwithstanding the previous
confirmation of such election by resolution of the National Assembly?

We could perhaps dispose of this case by passing directly upon the merits of the controversy. However, the
question of jurisdiction having been presented, we do not feel justified in evading the issue. Being a
case primæ impressionis, it would hardly be consistent with our sense of duty to overlook the broader aspect
of the question and leave it undecided. Neither would we be doing justice to the industry and vehemence of
counsel were we not to pass upon the question of jurisdiction squarely presented to our consideration.

The separation of powers is a fundamental principle in our system of government. It obtains not through
express provision but by actual division in our Constitution. Each department of the government has
exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not
follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended
them to be absolutely unrestrained and independent of each other. The Constitution has provided for an
elaborate system of checks and balances to secure coordination in the workings of the various departments
of the government. For example, the Chief Executive under our Constitution is so far made a check on the
legislative power that this assent is required in the enactment of laws. This, however, is subject to the further
check that a bill may become a law notwithstanding the refusal of the President to approve it, by a vote of
two-thirds or three-fourths, as the case may be, of the National Assembly. The President has also the right to
convene the Assembly in special session whenever he chooses. On the other hand, the National Assembly
operates as a check on the Executive in the sense that its consent through its Commission on Appointments
is necessary in the appointments of certain officers; and the concurrence of a majority of all its members is
essential to the conclusion of treaties. Furthermore, in its power to determine what courts other than the
Supreme Court shall be established, to define their jurisdiction and to appropriate funds for their support, the
National Assembly controls the judicial department to a certain extent. The Assembly also exercises the
judicial power of trying impeachments. And the judiciary in turn, with the Supreme Court as the final arbiter,
effectively checks the other departments in the exercise of its power to determine the law, and hence to
declare executive and legislative acts void if violative of the Constitution.

But in the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the
executive, the legislative and the judicial departments of the government. The overlapping and interlacing of
functions and duties between the several departments, however, sometimes makes it hard to say just where
the one leaves off and the other begins. In times of social disquietude or political excitement, the great
landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict,
the judicial department is the only constitutional organ which can be called upon to determine the proper
allocation of powers between the several departments and among the integral or constituent units thereof.

As any human production, our Constitution is of course lacking perfection and perfectibility, but as much as it
was within the power of our people, acting through their delegates to so provide, that instrument which is the
expression of their sovereignty however limited, has established a republican government intended to
operate and function as a harmonious whole, under a system of checks and balances, and subject to specific

124 |C o n s t i t u t i o n a l L a w I P a g e 1
limitations and restrictions provided in the said instrument. The Constitution sets forth in no uncertain
language the restrictions and limitations upon governmental powers and agencies. If these restrictions and
limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by
which to direct the course of government along constitutional channels, for then the distribution of powers
would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good
government mere political apothegms. Certainly, the limitation and restrictions embodied in our Constitution
are real as they should be in any living constitution. In the United States where no express constitutional
grant is found in their constitution, the possession of this moderating power of the courts, not to speak of its
historical origin and development there, has been set at rest by popular acquiescence for a period of more
than one and a half centuries. In our case, this moderating power is granted, if not expressly, by clear
implication from section 2 of article VIII of our constitution.

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

But much as we might postulate on the internal checks of power provided in our Constitution, it ought not the
less to be remembered that, in the language of James Madison, the system itself is not "the chief palladium
of constitutional liberty . . . the people who are authors of this blessing must also be its guardians . . . their
eyes must be ever ready to mark, their voice to pronounce . . . aggression on the authority of their
constitution." In the Last and ultimate analysis, then, must the success of our government in the unfolding
years to come be tested in the crucible of Filipino minds and hearts than in consultation rooms and court
chambers.

In the case at bar, the national Assembly has by resolution (No. 8) of December 3, 1935, confirmed the
election of the herein petitioner to the said body. On the other hand, the Electoral Commission has by
resolution adopted on December 9, 1935, fixed said date as the last day for the filing of protests against the
election, returns and qualifications of members of the National Assembly, notwithstanding the previous
confirmation made by the National Assembly as aforesaid. If, as contended by the petitioner, the resolution of
the National Assembly has the effect of cutting off the power of the Electoral Commission to entertain
protests against the election, returns and qualifications of members of the National Assembly, submitted after
December 3, 1935, then the resolution of the Electoral Commission of December 9, 1935, is mere

125 |C o n s t i t u t i o n a l L a w I P a g e 1
surplusage and had no effect. But, if, as contended by the respondents, the Electoral Commission has the
sole power of regulating its proceedings to the exclusion of the National Assembly, then the resolution of
December 9, 1935, by which the Electoral Commission fixed said date as the last day for filing protests
against the election, returns and qualifications of members of the National Assembly, should be upheld.

Here is then presented an actual controversy involving as it does a conflict of a grave constitutional nature
between the National Assembly on the one hand, and the Electoral Commission on the other. From the very
nature of the republican government established in our country in the light of American experience and of our
own, upon the judicial department is thrown the solemn and inescapable obligation of interpreting the
Constitution and defining constitutional boundaries. The Electoral Commission, as we shall have occasion to
refer hereafter, is a constitutional organ, created for a specific purpose, namely to determine all contests
relating to the election, returns and qualifications of the members of the National Assembly. Although the
Electoral Commission may not be interfered with, when and while acting within the limits of its authority, it
does not follow that it is beyond the reach of the constitutional mechanism adopted by the people and that it
is not subject to constitutional restrictions. The Electoral Commission is not a separate department of the
government, and even if it were, conflicting claims of authority under the fundamental law between
department powers and agencies of the government are necessarily determined by the judiciary in justifiable
and appropriate cases. Discarding the English type and other European types of constitutional government,
the framers of our constitution adopted the American type where the written constitution is interpreted and
given effect by the judicial department. In some countries which have declined to follow the American
example, provisions have been inserted in their constitutions prohibiting the courts from exercising the power
to interpret the fundamental law. This is taken as a recognition of what otherwise would be the rule that in the
absence of direct prohibition courts are bound to assume what is logically their function. For instance, the
Constitution of Poland of 1921, expressly provides that courts shall have no power to examine the validity of
statutes (art. 81, chap. IV). The former Austrian Constitution contained a similar declaration. In countries
whose constitutions are silent in this respect, courts have assumed this power. This is true in Norway,
Greece, Australia and South Africa. Whereas, in Czechoslovakia (arts. 2 and 3, Preliminary Law to
constitutional Charter of the Czechoslovak Republic, February 29, 1920) and Spain (arts. 121-123, Title IX,
Constitutional of the Republic of 1931) especial constitutional courts are established to pass upon the validity
of ordinary laws. In our case, the nature of the present controversy shows the necessity of a final
constitutional arbiter to determine the conflict of authority between two agencies created by the Constitution.
Were we to decline to take cognizance of the controversy, who will determine the conflict? And if the conflict
were left undecided and undetermined, would not a void be thus created in our constitutional system which
may be in the long run prove destructive of the entire framework? To ask these questions is to answer
them. Natura vacuum abhorret, so must we avoid exhaustion in our constitutional system. Upon principle,
reason and authority, we are clearly of the opinion that upon the admitted facts of the present case, this court
has jurisdiction over the Electoral Commission and the subject mater of the present controversy for the
purpose of determining the character, scope and extent of the constitutional grant to the Electoral
Commission as "the sole judge of all contests relating to the election, returns and qualifications of the
members of the National Assembly."

Having disposed of the question of jurisdiction, we shall now proceed to pass upon the second proposition
and determine whether the Electoral Commission has acted without or in excess of its jurisdiction in adopting
its resolution of December 9, 1935, and in assuming to take cognizance of the protest filed against the
election of the herein petitioner notwithstanding the previous confirmation thereof by the National Assembly

126 |C o n s t i t u t i o n a l L a w I P a g e 1
on December 3, 1935. As able counsel for the petitioner has pointed out, the issue hinges on the
interpretation of section 4 of Article VI of the Constitution which provides:

"SEC. 4. There shall be an Electoral Commission composed of three Justice of the Supreme Court
designated by the Chief Justice, and of six Members chosen by the National Assembly, three of whom shall
be nominated by the party having the largest number of votes, and three by the party having the second
largest number of votes therein. The senior Justice in the Commission shall be its Chairman. The Electoral
Commission shall be the sole judge of all contests relating to the election, returns and qualifications of the
members of the National Assembly." It is imperative, therefore, that we delve into the origin and history of this
constitutional provision and inquire into the intention of its framers and the people who adopted it so that we
may properly appreciate its full meaning, import and significance.

The original provision regarding this subject in the Act of Congress of July 1, 1902 (sec. 7, par. 5) laying
down the rule that "the assembly shall be the judge of the elections, returns, and qualifications of its
members", was taken from clause 1 of section 5, Article I of the Constitution of the United States providing
that "Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members, . . . ."
The Act of Congress of August 29, 1916 (sec. 18, par. 1) modified this provision by the insertion of the word
"sole" as follows: "That the Senate and House of Representatives, respectively, shall be the sole judges of
the elections, returns, and qualifications of their elective members . . ." apparently in order to emphasize the
exclusive the Legislative over the particular case s therein specified. This court has had occasion to
characterize this grant of power to the Philippine Senate and House of Representatives, respectively, as "full,
clear and complete" (Veloso vs. Boards of Canvassers of Leyte and Samar [1919], 39 Phil., 886, 888.)

The first step towards the creation of an independent tribunal for the purpose of deciding contested elections
to the legislature was taken by the sub-committee of five appointed by the Committee on Constitutional
Guarantees of the Constitutional Convention, which sub-committee submitted a report on August 30, 1934,
recommending the creation of a Tribunal of Constitutional Security empowered to hear legislature but also
against the election of executive officers for whose election the vote of the whole nation is required, as well
as to initiate impeachment proceedings against specified executive and judicial officer. For the purpose of
hearing legislative protests, the tribunal was to be composed of three justices designated by the Supreme
Court and six members of the house of the legislature to which the contest corresponds, three members to
be designed by the majority party and three by the minority, to be presided over by the Senior Justice unless
the Chief Justice is also a member in which case the latter shall preside. The foregoing proposal was
submitted by the Committee on Constitutional Guarantees to the Convention on September 15, 1934, with
slight modifications consisting in the reduction of the legislative representation to four members, that is, two
senators to be designated one each from the two major parties in the Senate and two representatives to be
designated one each from the two major parties in the House of Representatives, and in awarding
representation to the executive department in the persons of two representatives to be designated by the
President.

Meanwhile, the Committee on Legislative Power was also preparing its report. As submitted to the
Convention on September 24, 1934 subsection 5, section 5, of the proposed Article on the Legislative
Department, reads as follows:

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 The elections, returns and qualifications of the members of either house and all cases contesting
the election of any of their members shall be judged by an Electoral Commission, constituted, as to
each House, by three members elected by the members of the party having the largest number of
votes therein, three elected by the members of the party having the second largest number of
votes, and as to its Chairman, one Justice of the Supreme Court designated by the Chief Justice.

The idea of creating a Tribunal of Constitutional Security with comprehensive jurisdiction as proposed by the
Committee on Constitutional Guarantees which was probably inspired by the Spanish plan (art. 121,
Constitution of the Spanish Republic of 1931), was soon abandoned in favor of the proposition of the
Committee on Legislative Power to create a similar body with reduced powers and with specific and limited
jurisdiction, to be designated as a Electoral Commission. The Sponsorship Committee modified the proposal
of the Committee on Legislative Power with respect to the composition of the Electoral Commission and
made further changes in phraseology to suit the project of adopting a unicameral instead of a bicameral
legislature. The draft as finally submitted to the Convention on October 26, 1934, reads as follows:

(6) The elections, returns and qualifications of the Members of the National Assembly and all cases
contesting the election of any of its Members shall be judged by an Electoral Commission,
composed of three members elected by the party having the largest number of votes in the
National Assembly, three elected by the members of the party having the second largest number of
votes, and three justices of the Supreme Court designated by the Chief Justice, the Commission to
be presided over by one of said justices.

During the discussion of the amendment introduced by Delegates Labrador, Abordo, and others, proposing
to strike out the whole subsection of the foregoing draft and inserting in lieu thereof the following: "The
National Assembly shall be the soled and exclusive judge of the elections, returns, and qualifications of the
Members", the following illuminating remarks were made on the floor of the Convention in its session of
December 4, 1934, as to the scope of the said draft:

xxx xxx xxx

Mr. VENTURA. Mr. President, we have a doubt here as to the scope of the meaning of the first four
lines, paragraph 6, page 11 of the draft, reading: "The elections, returns and qualifications of the
Members of the National Assembly and all cases contesting the election of any of its Members
shall be judged by an Electoral Commission, . . ." I should like to ask from the gentleman from
Capiz whether the election and qualification of the member whose elections is not contested shall
also be judged by the Electoral Commission.

Mr. ROXAS. If there is no question about the election of the members, there is nothing to be
judged; that is why the word "judge" is used to indicate a controversy. If there is no question about
the election of a member, there is nothing to be submitted to the Electoral Commission and there is
nothing to be determined.

Mr. VENTURA. But does that carry the idea also that the Electoral Commission shall confirm also
the election of those whose election is not contested?

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Mr. ROXAS. There is no need of confirmation. As the gentleman knows, the action of the House of
Representatives confirming the election of its members is just a matter of the rules of the
assembly. It is not constitutional. It is not necessary. After a man files his credentials that he has
been elected, that is sufficient, unless his election is contested.

Mr. VENTURA. But I do not believe that that is sufficient, as we have observed that for purposes of
the auditor, in the matter of election of a member to a legislative body, because he will not
authorize his pay.

Mr. ROXAS. Well, what is the case with regards to the municipal president who is elected? What
happens with regards to the councilors of a municipality? Does anybody confirm their election? The
municipal council does this: it makes a canvass and proclaims — in this case the municipal council
proclaims who has been elected, and it ends there, unless there is a contest. It is the same case;
there is no need on the part of the Electoral Commission unless there is a contest. The first clause
refers to the case referred to by the gentleman from Cavite where one person tries to be elected in
place of another who was declared elected. From example, in a case when the residence of the
man who has been elected is in question, or in case the citizenship of the man who has been
elected is in question.

However, if the assembly desires to annul the power of the commission, it may do so by certain
maneuvers upon its first meeting when the returns are submitted to the assembly. The purpose is
to give to the Electoral Commission all the powers exercised by the assembly referring to the
elections, returns and qualifications of the members. When there is no contest, there is nothing to
be judged.

Mr. VENTURA. Then it should be eliminated.

Mr. ROXAS. But that is a different matter, I think Mr. Delegate.

Mr. CINCO. Mr. President, I have a similar question as that propounded by the gentleman from
Ilocos Norte when I arose a while ago. However I want to ask more questions from the delegate
from Capiz. This paragraph 6 on page 11 of the draft cites cases contesting the election as
separate from the first part of the sections which refers to elections, returns and qualifications.

Mr. ROXAS. That is merely for the sake of clarity. In fact the cases of contested elections are
already included in the phrase "the elections, returns and qualifications." This phrase "and
contested elections" was inserted merely for the sake of clarity.

Mr. CINCO. Under this paragraph, may not the Electoral Commission, at its own instance, refuse to
confirm the elections of the members."

Mr. ROXAS. I do not think so, unless there is a protest.

Mr. LABRADOR. Mr. President, will the gentleman yield?

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 THE PRESIDENT. The gentleman may yield, if he so desires.

Mr. ROXAS. Willingly.

Mr. LABRADOR. Does not the gentleman from Capiz believe that unless this power is granted to
the assembly, the assembly on its own motion does not have the right to contest the election and
qualification of its members?

Mr. ROXAS. I have no doubt but that the gentleman is right. If this draft is retained as it is, even if
two-thirds of the assembly believe that a member has not the qualifications provided by law, they
cannot remove him for that reason.

Mr. LABRADOR. So that the right to remove shall only be retained by the Electoral Commission.

Mr. ROXAS. By the assembly for misconduct.

Mr. LABRADOR. I mean with respect to the qualifications of the members.

Mr. ROXAS. Yes, by the Electoral Commission.

Mr. LABRADOR. So that under this draft, no member of the assembly has the right to question the
eligibility of its members?

Mr. ROXAS. Before a member can question the eligibility, he must go to the Electoral Commission
and make the question before the Electoral Commission.

Mr. LABRADOR. So that the Electoral Commission shall decide whether the election is contested
or not contested.

Mr. ROXAS. Yes, sir: that is the purpose.

Mr. PELAYO. Mr. President, I would like to be informed if the Electoral Commission has power and
authority to pass upon the qualifications of the members of the National Assembly even though that
question has not been raised.

Mr. ROXAS. I have just said that they have no power, because they can only judge.

In the same session, the first clause of the aforesaid draft reading "The election, returns and qualifications of
the members of the National Assembly and" was eliminated by the Sponsorship Committee in response to an
amendment introduced by Delegates Francisco, Ventura, Vinzons, Rafols, Lim, Mumar and others. In
explaining the difference between the original draft and the draft as amended, Delegate Roxas speaking for
the Sponsorship Committee said:

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 xxx xxx xxx

Sr. ROXAS. La diferencia, señor Presidente, consiste solamente en obviar la objecion apuntada
por varios Delegados al efecto de que la primera clausula del draft que dice: "The elections,
returns and qualifications of the members of the National Assembly" parece que da a la Comision
Electoral la facultad de determinar tambien la eleccion de los miembros que no ha sido
protestados y para obviar esa dificultad, creemos que la enmienda tien razon en ese sentido, si
enmendamos el draft, de tal modo que se lea como sigue: "All cases contesting the election", de
modo que los jueces de la Comision Electoral se limitaran solamente a los casos en que haya
habido protesta contra las actas." Before the amendment of Delegate Labrador was voted upon the
following interpellation also took place:

El Sr. CONEJERO. Antes de votarse la enmienda, quisiera

El Sr. PRESIDENTE. ¿Que dice el Comite?

El Sr. ROXAS. Con mucho gusto.

El Sr. CONEJERO. Tal como esta el draft, dando tres miembros a la mayoria, y otros tres a la
minoria y tres a la Corte Suprema, ¿no cree Su Señoria que esto equivale practicamente a dejar el
asunto a los miembros del Tribunal Supremo?

El Sr. ROXAS. Si y no. Creemos que si el tribunal o la Commission esta constituido en esa forma,
tanto los miembros de la mayoria como los de la minoria asi como los miembros de la Corte
Suprema consideraran la cuestion sobre la base de sus meritos, sabiendo que el partidismo no es
suficiente para dar el triunfo.

El Sr. CONEJERO. ¿Cree Su Señoria que en un caso como ese, podriamos hacer que tanto los
de la mayoria como los de la minoria prescindieran del partidismo?

El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo.

xxx xxx xxx

The amendment introduced by Delegates Labrador, Abordo and others seeking to restore the power to
decide contests relating to the election, returns and qualifications of members of the National Assembly to
the National Assembly itself, was defeated by a vote of ninety-eight (98) against fifty-six (56).

In the same session of December 4, 1934, Delegate Cruz (C.) sought to amend the draft by reducing the
representation of the minority party and the Supreme Court in the Electoral Commission to two members
each, so as to accord more representation to the majority party. The Convention rejected this amendment by
a vote of seventy-six (76) against forty-six (46), thus maintaining the non-partisan character of the
commission.

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As approved on January 31, 1935, the draft was made to read as follows:

(6) All cases contesting the elections, returns and qualifications of the Members of the National
Assembly shall be judged by an Electoral Commission, composed of three members elected by the
party having the largest number of votes in the National Assembly, three elected by the members
of the party having the second largest number of votes, and three justices of the Supreme Court
designated by the Chief Justice, the Commission to be presided over by one of said justices.

The Style Committee to which the draft was submitted revised it as follows:

SEC. 4. There shall be an Electoral Commission composed of three Justices of the Supreme Court
designated by the Chief Justice, and of six Members chosen by the National Assembly, three of
whom shall be nominated by the party having the largest number of votes, and three by the party
having the second largest number of votes therein. The senior Justice in the Commission shall be
its chairman. The Electoral Commission shall be the sole judge of the election, returns, and
qualifications of the Members of the National Assembly.

When the foregoing draft was submitted for approval on February 8, 1935, the Style Committee, through
President Recto, to effectuate the original intention of the Convention, agreed to insert the phrase "All
contests relating to" between the phrase "judge of" and the words "the elections", which was accordingly
accepted by the Convention.

The transfer of the power of determining the election, returns and qualifications of the members of the
legislature long lodged in the legislative body, to an independent, impartial and non-partisan tribunal, is by no
means a mere experiment in the science of government.

Cushing, in his Law and Practice of Legislative Assemblies (ninth edition, chapter VI, pages 57, 58), gives a
vivid account of the "scandalously notorious" canvassing of votes by political parties in the disposition of
contests by the House of Commons in the following passages which are partly quoted by the petitioner in his
printed memorandum of March 14, 1936:

153. From the time when the commons established their right to be the exclusive judges of the
elections, returns, and qualifications of their members, until the year 1770, two modes of
proceeding prevailed, in the determination of controverted elections, and rights of membership.
One of the standing committees appointed at the commencement of each session, was
denominated the committee of privileges and elections, whose functions was to hear and
investigate all questions of this description which might be referred to them, and to report their
proceedings, with their opinion thereupon, to the house, from time to time. When an election
petition was referred to this committee they heard the parties and their witnesses and other
evidence, and made a report of all the evidence, together with their opinion thereupon, in the form
of resolutions, which were considered and agreed or disagreed to by the house. The other mode of
proceeding was by a hearing at the bar of the house itself. When this court was adopted, the case
was heard and decided by the house, in substantially the same manner as by a committee. The
committee of privileges and elections although a select committee. The committee of privileges and
elections although a select committee was usually what is called an open one; that is to say, in

132 |C o n s t i t u t i o n a l L a w I P a g e 1
 order to constitute the committee, a quorum of the members named was required to be present,
but all the members of the house were at liberty to attend the committee and vote if they pleased.

154. With the growth of political parties in parliament questions relating to the right of membership
gradually assumed a political character; so that for many years previous to the year 1770,
controverted elections had been tried and determined by the house of commons, as mere party
questions, upon which the strength of contending factions might be tested. Thus, for Example, in
1741, Sir Robert Walpole, after repeated attacks upon his government, resigned his office in
consequence of an adverse vote upon the Chippenham election. Mr. Hatsell remarks, of the trial of
election cases, as conducted under this system, that "Every principle of decency and justice were
notoriously and openly prostituted, from whence the younger part of the house were insensibly, but
too successfully, induced to adopt the same licentious conduct in more serious matters, and in
questions of higher importance to the public welfare." Mr. George Grenville, a distinguished
member of the house of commons, undertook to propose a remedy for the evil, and, on the 7th of
March, 1770, obtained the unanimous leave of the house to bring in a bill, "to regulate the trial of
controverted elections, or returns of members to serve in parliament." In his speech to explain his
plan, on the motion for leave, Mr. Grenville alluded to the existing practice in the following terms:
"Instead of trusting to the merits of their respective causes, the principal dependence of both
parties is their private interest among us; and it is scandalously notorious that we are as earnestly
canvassed to attend in favor of the opposite sides, as if we were wholly self-elective, and not
bound to act by the principles of justice, but by the discretionary impulse of our own inclinations;
nay, it is well known, that in every contested election, many members of this house, who are
ultimately to judge in a kind of judicial capacity between the competitors, enlist themselves as
parties in the contention, and take upon themselves the partial management of the very business,
upon which they should determine with the strictest impartiality."

155. It was to put an end to the practices thus described, that Mr. Grenville brought in a bill which
met with the approbation of both houses, and received the royal assent on the 12th of April, 1770.
This was the celebrated law since known by the name of the Grenville Act; of which Mr. Hatsell
declares, that it "was one of the nobles works, for the honor of the house of commons, and the
security of the constitution, that was ever devised by any minister or statesman." It is probable, that
the magnitude of the evil, or the apparent success of the remedy, may have led many of the
contemporaries of the measure to the information of a judgement, which was not acquiesced in by
some of the leading statesmen of the day, and has not been entirely confirmed by subsequent
experience. The bill was objected to by Lord North, Mr. De Grey, afterwards chief justice of the
common pleas, Mr. Ellis, Mr. Dyson, who had been clerk of the house, and Mr. Charles James Fox,
chiefly on the ground, that the introduction of the new system was an essential alteration of the
constitution of parliament, and a total abrogation of one of the most important rights and
jurisdictions of the house of commons.

As early as 1868, the House of Commons in England solved the problem of insuring the non-partisan
settlement of the controverted elections of its members by abdicating its prerogative to two judges of the
King's Bench of the High Court of Justice selected from a rota in accordance with rules of court made for the
purpose. Having proved successful, the practice has become imbedded in English jurisprudence
(Parliamentary Elections Act, 1868 [31 & 32 Vict. c. 125] as amended by Parliamentary Elections and
Corrupt Practices Act. 1879 [42 & 43 Vict. c. 75], s. 2; Corrupt and Illegal Practices Preventions Act, 1883 [46

133 |C o n s t i t u t i o n a l L a w I P a g e 1
& 47 Vict. c. 51;, s. 70; Expiring Laws Continuance Act, 1911 [1 & 2 Geo. 5, c. 22]; Laws of England, vol. XII,
p. 408, vol. XXI, p. 787). In the Dominion of Canada, election contests which were originally heard by the
Committee of the House of Commons, are since 1922 tried in the courts. Likewise, in the Commonwealth of
Australia, election contests which were originally determined by each house, are since 1922 tried in the High
Court. In Hungary, the organic law provides that all protests against the election of members of the Upper
House of the Diet are to be resolved by the Supreme Administrative Court (Law 22 of 1916, chap. 2, art. 37,
par. 6). The Constitution of Poland of March 17, 1921 (art. 19) and the Constitution of the Free City of Danzig
of May 13, 1922 (art. 10) vest the authority to decide contested elections to the Diet or National Assembly in
the Supreme Court. For the purpose of deciding legislative contests, the Constitution of the German Reich of
July 1, 1919 (art. 31), the Constitution of the Czechoslovak Republic of February 29, 1920 (art. 19) and the
Constitution of the Grecian Republic of June 2, 1927 (art. 43), all provide for an Electoral Commission.

The creation of an Electoral Commission whose membership is recruited both from the legislature and the
judiciary is by no means unknown in the United States. In the presidential elections of 1876 there was a
dispute as to the number of electoral votes received by each of the two opposing candidates. As the
Constitution made no adequate provision for such a contingency, Congress passed a law on January 29,
1877 (United States Statutes at Large, vol. 19, chap. 37, pp. 227-229), creating a special Electoral
Commission composed of five members elected by the Senate, five members elected by the House of
Representatives, and five justices of the Supreme Court, the fifth justice to be selected by the four
designated in the Act. The decision of the commission was to be binding unless rejected by the two houses
voting separately. Although there is not much of a moral lesson to be derived from the experience of America
in this regard, judging from the observations of Justice Field, who was a member of that body on the part of
the Supreme Court (Countryman, the Supreme Court of the United States and its Appellate Power under the
Constitution [Albany, 1913] — Relentless Partisanship of Electoral Commission, p. 25 et seq.), the
experiment has at least abiding historical interest.

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 it 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 constitutional the
creation of the Electoral Commission is the expression of the wisdom and "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

134 |C o n s t i t u t i o n a l L a w I P a g e 1
deliberations was created, and further endowed with judicial temper by including in its membership three
justices of the Supreme Court.

The Electoral Commission is a constitutional creation, invested with the necessary authority in the
performance and execution of the limited and specific function assigned to it by the Constitution. Although it
is not a power in our tripartite scheme of government, it is, to all intents and purposes, when acting within the
limits of its authority, an independent organ. It is, to be sure, closer to the legislative department than to any
other. The location of the provision (section 4) creating the Electoral Commission under Article VI entitled
"Legislative Department" of our Constitution is very indicative. Its compositions is also significant in that it is
constituted by a majority of members of the legislature. But it is a body separate from and independent of the
legislature.

The grant of power to the Electoral Commission to judge all contests relating to the election, returns and
qualifications of members of the National Assembly, is intended to be as complete and unimpaired as if it had
remained originally in the legislature. The express lodging of that power in the Electoral Commission is an
implied denial of the exercise of that power by the National Assembly. And this is as effective a restriction
upon the legislative power as an express prohibition in the Constitution (Ex parte Lewis, 45 Tex. Crim. Rep.,
1; State vs.Whisman, 36 S.D., 260; L.R.A., 1917B, 1). If we concede the power claimed in behalf of the
National Assembly that said body may regulate the proceedings of the Electoral Commission and cut off the
power of the commission to lay down the period within which protests should be filed, the grant of power to
the commission would be ineffective. The Electoral Commission in such case would be invested with the
power to determine contested cases involving the election, returns and qualifications of the members of the
National Assembly but subject at all times to the regulative power of the National Assembly. Not only would
the purpose of the framers of our Constitution of totally transferring this authority from the legislative body be
frustrated, but a dual authority would be created with the resultant inevitable clash of powers from time to
time. A sad spectacle would then be presented of the Electoral Commission retaining the bare authority of
taking cognizance of cases referred to, but in reality without the necessary means to render that authority
effective whenever and whenever the National Assembly has chosen to act, a situation worse than that
intended to be remedied by the framers of our Constitution. The power to regulate on the part of the National
Assembly in procedural matters will inevitably lead to the ultimate control by the Assembly of the entire
proceedings of the Electoral Commission, and, by indirection, to the entire abrogation of the constitutional
grant. It is obvious that this result should not be permitted.

We are not insensible to the impassioned argument or the learned counsel for the petitioner regarding the
importance and necessity of respecting the dignity and independence of the national Assembly as a
coordinate department of the government and of according validity to its acts, to avoid what he characterized
would be practically an unlimited power of the commission in the admission of protests against members of
the National Assembly. But as we have pointed out hereinabove, the creation of the Electoral Commission
carried with it ex necesitate rei the power regulative in character to limit the time with which protests intrusted
to its cognizance should be filed. It is a settled rule of construction that where a general power is conferred or
duty enjoined, every particular power necessary for the exercise of the one or the performance of the other is
also conferred (Cooley, Constitutional Limitations, eight ed., vol. I, pp. 138, 139). In the absence of any
further constitutional provision relating to the procedure to be followed in filing protests before the Electoral
Commission, therefore, the incidental power to promulgate such rules necessary for the proper exercise of its
exclusive power to judge all contests relating to the election, returns and qualifications of members of the

135 |C o n s t i t u t i o n a l L a w I P a g e 1
National Assembly, must be deemed by necessary implication to have been lodged also in the Electoral
Commission.

It is, indeed, possible that, as suggested by counsel for the petitioner, the Electoral Commission may abuse
its regulative authority by admitting protests beyond any reasonable time, to the disturbance of the tranquillity
and peace of mind of the members of the National Assembly. But the possibility of abuse is not argument
against the concession of the power as there is no power that is not susceptible of abuse. In the second
place, if any mistake has been committed in the creation of an Electoral Commission and in investing it with
exclusive jurisdiction in all cases relating to the election, returns, and qualifications of members of the
National Assembly, the remedy is political, not judicial, and must be sought through the ordinary processes of
democracy. All the possible abuses of the government are not intended to be corrected by the judiciary. We
believe, however, that the people in creating the Electoral Commission reposed as much confidence in this
body in the exclusive determination of the specified cases assigned to it, as they have given to the Supreme
Court in the proper cases entrusted to it for decision. All the agencies of the government were designed by
the Constitution to achieve specific purposes, and each constitutional organ working within its own particular
sphere of discretionary action must be deemed to be animated with the same zeal and honesty in
accomplishing the great ends for which they were created by the sovereign will. That the actuations of these
constitutional agencies might leave much to be desired in given instances, is inherent in the perfection of
human institutions. In the third place, from the fact that the Electoral Commission may not be interfered with
in the exercise of its legitimate power, it does not follow that its acts, however illegal or unconstitutional, may
not be challenge in appropriate cases over which the courts may exercise jurisdiction.

But independently of the legal and constitutional aspects of the present case, there are considerations of
equitable character that should not be overlooked in the appreciation of the intrinsic merits of the
controversy. The Commonwealth Government was inaugurated on November 15, 1935, on which date the
Constitution, except as to the provisions mentioned in section 6 of Article XV thereof, went into effect. The
new National Assembly convened on November 25th of that year, and the resolution confirming the election
of the petitioner, Jose A. Angara was approved by that body on December 3, 1935. The protest by the herein
respondent Pedro Ynsua against the election of the petitioner was filed on December 9 of the same year.
The pleadings do not show when the Electoral Commission was formally organized but it does appear that
on December 9, 1935, the Electoral Commission met for the first time and approved a resolution fixing said
date as the last day for the filing of election protest. When, therefore, the National Assembly passed its
resolution of December 3, 1935, confirming the election of the petitioner to the National Assembly, the
Electoral Commission had not yet met; neither does it appear that said body had actually been organized. As
a mater of fact, according to certified copies of official records on file in the archives division of the National
Assembly attached to the record of this case upon the petition of the petitioner, the three justices of the
Supreme Court the six members of the National Assembly constituting the Electoral Commission were
respectively designated only on December 4 and 6, 1935. If Resolution No. 8 of the National Assembly
confirming non-protested elections of members of the National Assembly had the effect of limiting or tolling
the time for the presentation of protests, the result would be that the National Assembly — on the hypothesis
that it still retained the incidental power of regulation in such cases — had already barred the presentation of
protests before the Electoral Commission had had time to organize itself and deliberate on the mode and
method to be followed in a matter entrusted to its exclusive jurisdiction by the Constitution. This result was
not and could not have been contemplated, and should be avoided.

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From another angle, Resolution No. 8 of the National Assembly confirming the election of members against
whom no protests had been filed at the time of its passage on December 3, 1935, can not be construed as a
limitation upon the time for the initiation of election contests. While there might have been good reason for
the legislative practice of confirmation of the election of members of the legislature at the time when the
power to decide election contests was still lodged in the legislature, confirmation alone by the legislature
cannot be construed as depriving the Electoral Commission of the authority incidental to its constitutional
power to be "the sole judge of all contest relating to the election, returns, and qualifications of the members
of the National Assembly", to fix the time for the filing of said election protests. Confirmation by the National
Assembly of the returns of its members against whose election no protests have been filed is, to all legal
purposes, unnecessary. As contended by the Electoral Commission in its resolution of January 23, 1936,
overruling the motion of the herein petitioner to dismiss the protest filed by the respondent Pedro Ynsua,
confirmation of the election of any member is not required by the Constitution before he can discharge his
duties as such member. As a matter of fact, certification by the proper provincial board of canvassers is
sufficient to entitle a member-elect to a seat in the national Assembly and to render him eligible to any office
in said body (No. 1, par. 1, Rules of the National Assembly, adopted December 6, 1935).

Under the practice prevailing both in the English House of Commons and in the Congress of the United
States, confirmation is neither necessary in order to entitle a member-elect to take his seat. The return of the
proper election officers is sufficient, and the member-elect presenting such return begins to enjoy the
privileges of a member from the time that he takes his oath of office (Laws of England, vol. 12, pp. 331. 332;
vol. 21, pp. 694, 695; U. S. C. A., Title 2, secs. 21, 25, 26). Confirmation is in order only in cases of contested
elections where the decision is adverse to the claims of the protestant. In England, the judges' decision or
report in controverted elections is certified to the Speaker of the House of Commons, and the House, upon
being informed of such certificate or report by the Speaker, is required to enter the same upon the Journals,
and to give such directions for confirming or altering the return, or for the issue of a writ for a new election, or
for carrying into execution the determination as circumstances may require (31 & 32 Vict., c. 125, sec. 13). In
the United States, it is believed, the order or decision of the particular house itself is generally regarded as
sufficient, without any actual alternation or amendment of the return (Cushing, Law and Practice of
Legislative Assemblies, 9th ed., sec. 166).

Under the practice prevailing when the Jones Law was still in force, each house of the Philippine Legislature
fixed the time when protests against the election of any of its members should be filed. This was expressly
authorized by section 18 of the Jones Law making each house the sole judge of the election, return and
qualifications of its members, as well as by a law (sec. 478, Act No. 3387) empowering each house to
respectively prescribe by resolution the time and manner of filing contest in the election of member of said
bodies. As a matter of formality, after the time fixed by its rules for the filing of protests had already expired,
each house passed a resolution confirming or approving the returns of such members against whose election
no protests had been filed within the prescribed time. This was interpreted as cutting off the filing of further
protests against the election of those members not theretofore contested (Amistad vs. Claravall [Isabela],
Second Philippine Legislature, Record — First Period, p. 89; Urguello vs. Rama [Third District, Cebu], Sixth
Philippine Legislature; Fetalvero vs. Festin [Romblon], Sixth Philippine Legislature, Record — First Period,
pp. 637-640; Kintanar vs. Aldanese [Fourth District, Cebu], Sixth Philippine Legislature, Record — First
Period, pp. 1121, 1122; Aguilar vs. Corpus [Masbate], Eighth Philippine Legislature, Record — First Period,
vol. III, No. 56, pp. 892, 893). The Constitution has repealed section 18 of the Jones Law. Act No. 3387,
section 478, must be deemed to have been impliedly abrogated also, for the reason that with the power to
determine all contest relating to the election, returns and qualifications of members of the National Assembly,

137 |C o n s t i t u t i o n a l L a w I P a g e 1
is inseparably linked the authority to prescribe regulations for the exercise of that power. There was thus no
law nor constitutional provisions which authorized the National Assembly to fix, as it is alleged to have fixed
on December 3, 1935, the time for the filing of contests against the election of its members. And what the
National Assembly could not do directly, it could not do by indirection through the medium of confirmation.

Summarizing, we conclude:

(a) That the government established by the Constitution follows fundamentally the theory of
separation of power into the legislative, the executive and the judicial.

(b) That the system of checks and balances and the overlapping of functions and duties often
makes difficult the delimitation of the powers granted.

(c) That in cases of conflict between the several departments and among the agencies thereof, the
judiciary, with the Supreme Court as the final arbiter, is the only constitutional mechanism devised
finally to resolve the conflict and allocate constitutional boundaries.

(d) That judicial supremacy is but the power of judicial review in actual and appropriate cases and
controversies, and is the power and duty to see that no one branch or agency of the government
transcends the Constitution, which is the source of all authority.

(e) That the Electoral Commission is an independent constitutional creation with specific powers
and functions to execute and perform, closer for purposes of classification to the legislative than to
any of the other two departments of the governments.

(f ) That the Electoral Commission is the sole judge of all contests relating to the election, returns
and qualifications of members of the National Assembly.

(g) That under the organic law prevailing before the present Constitution went into effect, each
house of the legislature was respectively the sole judge of the elections, returns, and qualifications
of their elective members.

(h) That the present Constitution has transferred all the powers previously exercised by the
legislature with respect to contests relating to the elections, returns and qualifications of its
members, to the Electoral Commission.

(i) That such transfer of power from the legislature to the Electoral Commission was full, clear and
complete, and carried with it ex necesitate rei the implied power inter alia to prescribe the rules and
regulations as to the time and manner of filing protests.

( j) That the avowed purpose in creating the Electoral Commission was to have an independent
constitutional organ pass upon all contests relating to the election, returns and qualifications of
members of the National Assembly, devoid of partisan influence or consideration, which object

138 |C o n s t i t u t i o n a l L a w I P a g e 1
 would be frustrated if the National Assembly were to retain the power to prescribe rules and
regulations regarding the manner of conducting said contests.

(k) That section 4 of article VI of the Constitution repealed not only section 18 of the Jones Law
making each house of the Philippine Legislature respectively the sole judge of the elections,
returns and qualifications of its elective members, but also section 478 of Act No. 3387
empowering each house to prescribe by resolution the time and manner of filing contests against
the election of its members, the time and manner of notifying the adverse party, and bond or
bonds, to be required, if any, and to fix the costs and expenses of contest.

(l) That confirmation by the National Assembly of the election is contested or not, is not essential
before such member-elect may discharge the duties and enjoy the privileges of a member of the
National Assembly.

(m) That confirmation by the National Assembly of the election of any member against whom no
protest had been filed prior to said confirmation, does not and cannot deprive the Electoral
Commission of its incidental power to prescribe the time within which protests against the election
of any member of the National Assembly should be filed.

We hold, therefore, that the Electoral Commission was acting within the legitimate exercise of its
constitutional prerogative in assuming to take cognizance of the protest filed by the respondent Pedro Ynsua
against the election of the herein petitioner Jose A. Angara, and that the resolution of the National Assembly
of December 3, 1935 can not in any manner toll the time for filing protests against the elections, returns and
qualifications of members of the National Assembly, nor prevent the filing of a protest within such time as the
rules of the Electoral Commission might prescribe.

In view of the conclusion reached by us relative to the character of the Electoral Commission as a
constitutional creation and as to the scope and extent of its authority under the facts of the present
controversy, we deem it unnecessary to determine whether the Electoral Commission is an inferior tribunal,
corporation, board or person within the purview of sections 226 and 516 of the Code of Civil Procedure.

The petition for a writ of prohibition against the Electoral Commission is hereby denied, with costs against the
petitioner. So ordered.

Avanceña, C. J., Diaz, Concepcion, and Horrilleno, JJ., concur.

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 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 133064 September 16, 1999

JOSE C. MIRANDA, ALFREDO S. DIRIGE, MANUEL H. AFIADO, MARIANO V. BABARAN and ANDRES
R. CABUYADAO, petitioners,
vs.
HON. ALEXANDER AGUIRRE, In his capacity as Executive Secretary; HON. EPIMACO VELASCO, in
his capacity as Secretary of Local Government, HON. SALVADOR ENRIQUEZ, in his capacity as
Secretary of Budget, THE COMMISSION ON AUDIT, THE COMMISSION ON ELECTIONS, HON.
BENJAMIN G. DY, in his capacity as Governor of Isabela, THE HONORABLE SANGGUNIANG
PANLALAWIGAN OF ISABELA, ATTY. BALTAZAR PICIO, in his capacity as Provincial Administrator,
and MR. ANTONIO CHUA, in his capacity as Provincial Treasurer, respondents, GIORGIDI B.
AGGABAO, intervenor.

PUNO, J.:

This is a petition for a writ of prohibition with prayer for preliminary injunction assailing the constitutionality of
Republic Act No. 8528 converting the city of Santiago, Isabela from an independent component city to a
component city.

On May 5, 1994, Republic Act No. 7720 which converted the municipality of Santiago, Isabela into an
independent component city was signed into law. On July 4, 1994, the people of Santiago ratified R.A. No.
7720 in a plebiscite.1

On February 14, 1998, Republic Act No. 8528 was enacted. It amended R.A. No. 7720. Among others, it
changed the status of Santiago from an independent component city to a component city, viz.:

AN ACT AMENDING CERTAIN SECTIONS OF REPUBLIC ACT NUMBERED 7720 —

AN ACT CONVERTING THE MUNICIPALITY OF SANTIAGO INTO AN INDEPENDENT
COMPONENT CITY TO BE KNOWN AS THE CITY OF SANTIAGO.

Be it enacted by the Senate and House of Representatives of the Philippines in

Congress assembled:

140 |C o n s t i t u t i o n a l L a w I P a g e 1
 Sec. 1. Section 2 of Republic Act No. 7720 is hereby amended by deleting the words "an
independent" thereon so that said Section will read as follows:

Sec. 2. The City of Santiago. — The Municipality of Santiago shall be

converted into a component city to be known as the City of Santiago,
hereinafter referred to as the City, which shall comprise of the
present territory of the Municipality of Santiago, Isabela. The
territorial jurisdiction of the City shall be within the present metes and
bounds of the Municipality of Santiago.

Sec. 2. Section 51 of Republic Act No. 7720 is hereby amended deleting the entire
section and in its stead substitute the following:

Sec. 51. Election of Provincial Governor, Vice-Governor,

Sangguniang Panlalawigan Members, and any Elective Provincial
Position for the Province of Isabela. — The voters of the City of
Santiago shall be qualified to vote in the elections of the Provincial
Governor, Vice-Governor, Sangguniang Panlalawigan members and
other elective provincial positions of the Province of Isabela, and any
such qualified voter can be a candidate for such provincial positions
and any elective provincial office.

Sec. 3. Repealing Clause. — All existing laws or parts thereof inconsistent with the
provisions of this Act are hereby repealed or modified accordingly.

Sec. 4. Effectivity. — This Act shall take effect upon its approval.

Approved.

Petitioners assail the constitutionality of R.A. No. 8528. 2 They alleged as ground the lack of provision in R.A.
No. 8528 submitting the law for ratification by the people of Santiago City in a proper plebiscite. Petitioner
Miranda was the mayor of Santiago at the time of the filing of the petition at bar. Petitioner Afiado is the
President of the Liga ng mga Barangay ng Santiago City. Petitioners Dirige, Cabuyadao and Babaran are
residents of Santiago City.

In their Comment, respondent provincial officials of Isabela defended the constitutionality of R.A. No. 8528.
They assailed the standing of petitioners to file the petition at bar. They also contend that the petition raises a
political question over which this Court lacks jurisdiction.

Another Comment was filed by the Solicitor General for the respondent public officials. The Solicitor General
also contends that petitioners are not real parties in interest. More importantly, it is contended that R.A. No.
8528 merely reclassified Santiago City from an independent component city to a component city. It allegedly
did not involve any "creation, division, merger, abolition, or substantial alteration of boundaries of local
government units," hence, a plebiscite of the people of Santiago is unnecessary.

141 |C o n s t i t u t i o n a l L a w I P a g e 1
A third Comment similar in tone was submitted by intervenor Giorgidi B. Aggabao, 3 a member of the
provincial board of Isabela. 4 He contended that both the Constitution and the Local Government Code of
1991 do not require a plebiscite "to approve a law that merely allowed qualified voters of a city to vote in
provincial elections. The rules implementing the Local Government Code cannot require a plebiscite. He also
urged that petitioners lacked locus standi.

Petitioners filed a Reply to meet the arguments of the respondents and the intervenor. They defended their
standing. They also stressed the changes that would visit the city of Santiago as a result of its
reclassification.

We find merit in the petition.

First. The challenge to the locus standi of petitioners cannot succeed. It is now an ancient rule that the
constitutionality of law can be challenged by one who will sustain a direct injury as a result of its
enforcement. 5Petitioner Miranda was the mayor of Santiago City when he filed the present petition in his
own right as mayor and not on behalf of the city, hence, he did not need the consent of the city council of
Santiago. It is also indubitable that the change of status of the city of Santiago from independent component
city to a mere component city will affect his powers as mayor, as will be shown hereafter. The injury that he
would sustain from the enforcement of R.A. No. 8528 is direct and immediate and not a mere generalized
grievance shared with the people of Santiago City. Similarly, the standing of the other petitioners rests on a
firm foundation. They are residents and voters in the city of Santiago. They have the right to be heard in the
conversion of their city thru a plebiscite to be conducted by the COMELEC. The denial of this right in R.A.
No. 8528 gives them proper standing to strike the law as unconstitutional.1âwphi1.nêt

Second. The plea that this court back off from assuming jurisdiction over the petition at bar on the ground
that it involves a political question has to be brushed aside. This plea has long lost its appeal especially in
light of Section 1 of Article VIII of the 1987 Constitution which defines judicial power as including "the duty of
the courts of justice to settle actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of the government." To be sure, the cut
between a political and justiciable issue has been made by this Court in many cases and need no longer
mystify us. In Tañada v. Cuenco, 6 we held:

xxx xxx xxx

The term "political question" connotes what it means in ordinary parlance, namely, a
question of policy. 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 legislative or executive branch of the government." It
is concerned with issues dependent upon the wisdom, not legality, of a particular
measure.

In Casibang v. Aquino, 7 we defined a justiciable issue as follows:

142 |C o n s t i t u t i o n a l L a w I P a g e 1
 A purely justiciable issue implies a given right, legally demandable and enforceable, an
act or omission violative of such right, and a remedy granted and sanctioned by law, for
said breach of right.

Clearly, the petition at bar presents a justiciable issue. Petitioners claim that under Section 10,
Article X of the 1987 Constitution they have a right to approve or disapprove R.A. No. 8528 in a
plebiscite before it can be enforced. It ought to be self-evident that whether or not petitioners have
the said right is a legal not a political question. For whether or not laws passed by Congress
comply with the requirements of the Constitution pose questions that this Court alone can decide.
The proposition that this Court is the ultimate arbiter of the meaning and nuances of the
Constitution need not be the subject of a prolix explanation.

Third. The threshold issue is whether R.A. No. 8528 is unconstitutional for its failure to provide that the
conversion of the city of Santiago from an independent component city to a component city should be
submitted to its people in a proper plebiscite. We hold that the Constitution requires a plebiscite. Section 10,
Article X of the 1987 Constitution provides:

No province, city, municipality, or barangay may be created, or divided, merged,

abolished, or its boundary substantially altered except in accordance with the criteria
established in the local government code and subject to approval by a majority of the
votes cast in a plebiscite in the political units directly affected.

This constitutional requirement is reiterrated in Section 10, Chapter 2 of the Local Government
Code (R.A. No. 7160), thus:

Sec. 10. No province, city, municipality, or barangay may be created, divided, merged,
abolished, or its boundary substantially altered except in accordance with the criteria
established in the local government code and subject to approval by a majority of the
votes cast in a plebiscite in the political units directly affected.

The power to create, divide, merge, abolish or substantially alter boundaries of local government
units belongs to Congress. 8 This power is part of the larger power to enact laws which the Constitution
vested in Congress. 9 The exercise of the power must be in accord with the mandate of the Constitution. In
the case at bar, the issue is whether the downgrading of Santiago City from an independent component city
to a mere component city requires the approval of the people of Santiago City in a plebiscite. The resolution
of the issue depends on whether or not the downgrading falls within the meaning of creation, division,
merger, abolition or substantial alteration of boundaries of municipalities per Section 10, Article X of the
Constitution. A close analysis of the said constitutional provision will reveal that the creation, division,
merger, abolition or substantial alteration of boundaries of local government units involve a common
denominator — material change in the political and economic rights of the local government units directly
affected as well as the people therein. It is precisely for this reason that the Constitution requires the
approval of the people "in the political units directly affected." It is not difficult to appreciate the rationale of
this constitutional requirement. The 1987 Constitution, more than any of our previous Constitutions, gave
more reality to the sovereignty of our people for it was borne out of the people power in the 1986 EDSA
revolution. Its Section 10, Article X addressed the undesirable practice in the past whereby local government

143 |C o n s t i t u t i o n a l L a w I P a g e 1
units were created, abolished, merged or divided on the basis of the vagaries of politics and not of the
welfare of the people. Thus, the consent of the people of the local government unit directly affected was
required to serve as a checking mechanism to any exercise of legislative power creating, dividing, abolishing,
merging or altering the boundaries of local government units. It is one instance where the people in their
sovereign capacity decide on a matter that affects them — direct democracy of the people as opposed to
democracy thru people's representatives. This plebiscite requirement is also in accord with the philosophy of
the Constitution granting more autonomy to local government units.

The changes that will result from the downgrading of the city of Santiago from an independent component
city to a component city are many and cannot be characterized as insubstantial. For one, the independence
of the city as a political unit will be diminished. The city mayor will be placed under the administrative
supervision of the provincial governor. The resolutions and ordinances of the city council of Santiago will
have to be reviewed by the Provincial Board of Isabela. Taxes that will be collected by the city will now have
to be shared with the province. Petitioners pointed out these far reaching changes on the life of the people of
the city of Santiago, viz.: 10

Although RESPONDENTS would like to make it appear that R.A. No. 8528 had "merely
re-classified" Santiago City from an independent component city into a component city,
the effect when challenged (sic) the Act were operational would be, actually, that of
conversion. Consequently, there would be substantial changes in the political culture and
administrative responsibilities of Santiago City, and the Province of Isabela. Santiago
City from an independent component city will revert to the Province of Isabela,
geographically, politically, and administratively. Thus, the territorial land area of Santiago
City will be added to the land area comprising the province of Isabela. This will be to the
benefit or advantage of the Provincial Government of Isabela on account of the
subsequent increase of its share from the internal revenue allotment (IRA) from the
National Government (Section 285, R.A. No. 7160 or the Local Government Code of
1991). The IRA is based on land area and population of local government units,
provinces included.

The nature or kinds, and magnitude of the taxes collected by the City Government, and
which taxes shall accrue solely to the City Government, will be redefined (Section 151,
R.A. No. 7160), and may be shared with the province such as taxes on sand, gravel and
other quarry resources (Section 138, R.A. No. 7160), professional taxes (Section 139,
R.A. No. 7160), or amusement taxes (Section 140, R.A. No. 7160). The Provincial
Government will allocate operating funds for the City. Inarguably, there would be a (sic)
diminished funds for the local operations of the City Government because of reduced
shares of the IRA in accordance with the schedule set forth by Section 285 of R.A. No.
7160. The City Government's share in the proceeds in the development and utilization of
national wealth shall be diluted since certain portions shall accrue to the Provincial
Government (Section 292, R.A. No. 7160).

The registered voters of Santiago City will vote for and can be voted as provincial officials
(Section 451 and 452 [c], R.A. No. 7160).

144 |C o n s t i t u t i o n a l L a w I P a g e 1
 The City Mayor will now be under the administrative supervision of the Provincial
Governor who is tasked by law to ensure that every component city and municipality
within the territorial jurisdiction of the province acts within the scope of its prescribed
powers and functions (Section 29 and 465 (b) (2) (i), R.A. No. 7160), and to review
(Section 30, R.A. No. 7160) all executive orders submitted by the former (Section 455 (b)
(1) (xii), R.A. No. 7160) and (R)eportorial requirements with respect to the local
governance and state of affairs of the city (Section 455 (b) (1) (xx), R.A. No. 7160).
Elective city officials will also be effectively under the control of the Provincial Governor
(Section 63, R.A. No. 7160). Such will be the great change in the state of the political
autonomy of what is now Santiago City where by virtue of R.A. No. 7720, it is the Office
of the President which has supervisory authority over it as an independent component
city (Section 25, R.A. No. 7160; Section 4 (ARTICLE X), 1987 Constitution).

The resolutions and ordinances adopted and approved by the Sangguniang Panlungsod
will be subject to the review of the Sangguniang Panlalawigan (Sections 56, 468, (a) (1)
(i), 468 (a) (2) (vii), and 469 (c) (4), R.A. No. 7160). Likewise, the decisions in
administrative cases by the former could be appealed and acted upon by the latter
(Section 67 R.A. No. 7160).

It is markworthy that when R.A. No. 7720 upgraded the status of Santiago City from a municipality
to an independent component city, it required the approval of its people thru a plebiscite called for
the purpose. There is neither rhyme nor reason why this plebiscite should not be called to
determine the will of the people of Santiago City when R.A. No. 8528 downgrades the status of
their city. Indeed, there is more reason to consult the people when a law substantially diminishes
their right. Rule II, Article 6, paragraph (f) (1) of the Implementing Rules and Regulations of the
Local Government Code is in accord with the Constitution when it provides that:

(f) Plebiscite — (1) no creation, conversion, division, merger, abolition, or substantial

alteration of boundaries of LGUS shall take effect unless approved by a majority of the
votes cast in a plebiscite called for the purpose in the LGU or LGUs affected. The
plebiscite shall be conducted by the Commission on Elections (COMELEC) within one
hundred twenty (120) days from the effectivity of the law or ordinance prescribing such
action, unless said law or ordinance fixes another date.

xxx xxx xxx

The rules cover all conversions, whether upward or downward in character, so long as they result
in a material change in the local government unit directly affected, especially a change in the
political and economic rights of its people.

A word on the dissenting opinions of our esteemed brethren. Mr. Justice Buena justifies R.A. No. 8528 on the
ground that Congress has the power to amend the charter of Santiago City. This power of amendment,
however, is limited by Section 10, Article X of the Constitution. Quite clearly, when an amendment of a law
involves the creation, merger, division, abolition or substantial alteration of boundaries of local government
units, a plebiscite in the political units directly affected is mandatory. He also contends that the amendment

145 |C o n s t i t u t i o n a l L a w I P a g e 1
merely caused a transition in the status of Santiago as a city. Allegedly, it is a transition because no new city
was created nor was a former city dissolved by R.A. No. 8528. As discussed above, the spirit of Section 10,
Article X of the Constitution calls for the people of the local government unit directly affected to vote in a
plebiscite whenever there is a material change in their rights and responsibilities. They may call the
downgrading of Santiago to a component city as a mere transition but they cannot blink away from the fact
that the transition will radically change its physical and political configuration as well as the rights and
responsibilities of its people.

On the other hand, our esteemed colleague, Mr. Justice Mendoza, posits the theory that "only if the
classification involves changes in income, population, and land area of the local government unit is there a
need for such changes to be approved by the people . . . ."

With due respect, such an interpretation runs against the letter and spirit of Section 10, Article X of the 1987
Constitution which, to repeat, states: "No province, city, municipality, or barangay may be created, divided,
merged, abolished, or its boundary substantially altered except in accordance with the criteria established in
the Local Government Code and subject to approval by a majority of the votes cast in a plebiscite in the
political units directly affected." It is clear that the Constitution imposes two conditions — first, the creation,
division, merger, abolition or substantial alteration of boundary of a local government unit must meet the
criteria fixed by the Local Government Code on income, population and land area and second, the law must
be approved by the people "by a majority of the votes cast in a plebiscite in the political units directly
affected."

In accord with the Constitution, sections 7, 8, and 9 of the Local Government Code fixed the said criteria and
they involve requirements on income, population and land area. These requirements, however, are imposed
to help assure the economic viability of the local government unit concerned. They were not imposed to
determine the necessity for a plebiscite of the people. Indeed, the Local Government Code does not state
that there will be no more plebiscite after its requirements on income, population and land area have been
satisfied. On the contrary, section 10, Chapter 2 of the Code provides: "No creation, division, merger,
abolition, or substantial alteration of boundaries of local government units shall take effect unless approved
by a majority of the votes casts in a plebiscite called for the purpose in the political unit or units directly
affected. Said plebiscite shall be conducted by the COMELEC within one hundred twenty (120) days from the
date of the effectivity of the law or ordinance effecting such action, unless said law or ordinance fixes another
date. 11 Senator Aquilino Pimentel, the principal author of the Local Government Code of 1991, opines that
the plebiscite is absolute and mandatory.12

It cannot be overstressed that the said two requirements of the Constitution have different purposes. The
criteria fixed by the Local Government Code on income, population and land area are designed to achieve
an economic purpose. They are to be based on verified indicators, hence, section 7, Chapter 2 of the Local
Government Code requires that these "indicators shall be attested by the Department of Finance, the
National Statistics Office, and the Lands Management Bureau of the Department of Environment and Natural
Resources." In contrast, the people's plebiscite is required to achieve a political purpose — to use the
people's voice as a check against the pernicious political practice of gerrymandering. There is no better
check against this excess committed by the political representatives of the people themselves than the
exercise of direct people power. As well-observed by one commentator, as the creation, division, merger,
abolition, or substantial alteration of boundaries are ". . . basic to local government, it is also imperative that
these acts be done not only by Congress but also be approved by the inhabitants of the locality concerned. .

146 |C o n s t i t u t i o n a l L a w I P a g e 1
. . By giving the inhabitants a hand in their approval, the provision will also eliminate the old practice of
gerrymandering and minimize legislative action designed for the benefit of a few politicians. Hence, it
promotes the autonomy of local government units." 13

The records show that the downgrading of Santiago City was opposed by certain segments of its people. In
the debates in Congress, it was noted that at the time R.A. No. 8528 was proposed, Santiago City has been
converted to an independent component city barely two and a half (2 1/2) years ago and the conversion was
approved by a majority of 14,000 votes. Some legislators expressed surprise for the sudden move to
downgrade the status of Santiago City as there had been no significant change in its socio-economic-political
status. The only reason given for the downgrading is to enable the people of the city to aspire for the
leadership of the province. To say the least, the alleged reason is unconvincing for it is the essence of
an independent component city that its people can no longer participate or be voted for in the election of
officials of the province. The people of Santiago City were aware that they gave up that privilege when they
voted to be independent from the province of Isabela. There was an attempt on the part of the Committee on
Local Government to submit the downgrading of Santiago City to its people via a plebiscite. The amendment
to this effect was about to be voted upon when a recess was called. After the recess, the chairman of the
Committee announced the withdrawal of the amendment "after a very enlightening conversion with the elders
of the Body." We quote the debates, viz.: 14

BILL ON SECOND READING

H.B. No. 8729 — City of Santiago

Senator Tatad. Mr. President, I move that we consider House Bill No. 8729 as
reported out under Committee Report No. 971.

The President. Is there any objection? [Silence] there being none, the motion is
approved.

Consideration of House Bill No. 8729 is now in order. With the permission of the Body,
the Secretary will read only the title of the bill without prejudice to inserting in
the Record the whole text thereof.

The Acting Secretary [Atty. Raval]. House Bill No. 8729, entitled:

AN ACT AMENDING CERTAIN SECTIONS OF R.A. NO. 7720 ENTITLED "AN

ACT CONVERTING THE MUNICIPALITY OF SANTIAGO INTO AN INDEPENDENT
COMPONENT CITY TO BE KNOWN AS THE CITY OF SANTIAGO

The following is the full text of H.B. No. 8729

Insert

147 |C o n s t i t u t i o n a l L a w I P a g e 1
 Senator Tatad. Mr. President, for the sponsorship, I ask that the distinguished
Chairman of the Committee on Local Government be recognized.

The President. Senator Sotto is recognized.

SPONSORSHIP SPEECH OF SENATOR SOTTO

Mr. President. House Bill No. 8729, which was introduced in the House by
Congressman Antonio M. Abaya as its principal author, is a simple measure which
merely seeks to convert the City of Santiago into a component city of the Province of
Isabela.

The City of Santiago is geographically located within, and is physically an integral part of
the Province of Isabela. As an independent component city, however, it is completely
detached and separate from the said province as a local political unit. To use the
language of the Explanatory Note of the proposed bill, the City of Santiago is an "island
in the provincial milieu.

The residents of the city no longer participate in the elections, nor are they qualified to
run for any elective positions in the Province of Isabela.

The Province of Isabela, on the other hand, is no longer vested with the power and
authority of general supervision over the city and its officials, which power and authority
are now exercised by the Office of the President, which is very far away from Santiago
City.

Being geographically located within the Province of Isabela, the City of Santiago is
affected, one way or the other, by the happenings in the said province, and is benefited
by its progress and development. Hence, the proposed bill to convert the City of Santiago
into a component city of Isabela.

Mr. President, it is my pleasure, therefore, to present for consideration of this august

Body Committee Report No. 971 of the Committee on Local Government, recommending
approval, with our proposed committee amendment, of House Bill No. 8729.

Thank you, Mr. President.

The President. The Majority Leader is recognized.

Senator Tatad. Mr. President, I moved (sic) that we close the period of
interpellations.

The President. Is there any objection? [Silence] There being none, the period
of interpellations is closed.

148 |C o n s t i t u t i o n a l L a w I P a g e 1
 Senator Tatad. I move that we now consider the committee amendments.

Senator Roco. Mr. President.

The President. What is the pleasure of Senator Roco?

Senator Roco. Mr. President, may I ask for a reconsideration of the ruling on
the motion to close the period of interpellations just to be able to ask a few questions?

Senator Tatad. May I move for a reconsideration of my motion, Mr. President.

The President. Is there any objection to the reconsideration of the closing of

the period of interpellations? [Silence] There being none, the motion is approved.

Senator Roco is recognized.

Senator Roco. Will the distinguished gentlemen yield for some questions?

Senator Sotto. Willingly, Mr. President.

Senator Roco. Mr. President, together with the Chairman of the Committee on
Local Government, we were with the sponsors when we approved this bill to make
Santiago a City. That was about two and a half years ago. At that time, I remember it was
the cry of the city that it be "independent." Now we are deleting that word "independent."

Mr. President, only because I was a co-author and a co-sponsor, for the Record, I want
some explanation on what happened between then and now that has made us decided
that the City of Santiago should cease to be independent and should now become a
component city.

Senator Sotto. Mr. President, the officials of the province said during the public
hearing that they are no longer vested with the power and authority of general
supervision over the city. The power and authority is now being exercised by the Office of
the President and it is quite far from the City of Santiago.

In the public hearing, we also gathered that there is a clamor from some sectors that they
want to participate in the provincial elections.

Senator Roco. Mr. President, I did not mean to delay this. I did want it on
record, however. I think there was a majority of 14,000 who approved the charter, and
maybe we owe it to those who voted for that charter some degree of respect. But if there
has been a change of political will, there has been a change of political will, then so be it.

149 |C o n s t i t u t i o n a l L a w I P a g e 1
 Thank you, Mr. President.

Senator Sotto. Mr. President, to be very frank about it, that was a very
important point raised by Senator Roco, and I will have to place it on the Record of the
Senate that the reason why we are proposing a committee amendment is that, originally,
there was an objection on the part of the local officials and those who oppose it by
incorporating a plebiscite in this bill. That was the solution. Because there were some
sectors in the City of Santiago who were opposing the reclassification or reconversion of
the city into a component city.

Senator Roco. All I wanted to say, Mr. President — because the two of us had
special pictures (sic) in the city — is that I thought it should be put on record that we have
supported originally the proposal to make it an independent city. But now if it is their
request, then, on the manifestation of the Chairman, let it be so.

Thank you.

Senator Drilon. Mr. President.

Senator Drilon. Will the gentleman yield for a few questions, Mr. President.

Senator Sotto. Yes, Mr. President.

Senator Drilon. Mr. President, further to the interpellation of our good friend,
the Senator from Bicol, on the matter of the opinion of the citizens of Santiago City, there
is a resolution passed by the Sanggunian on January 30, 1997 opposing the conversion
of Santiago from an independent city.

This opposition was placed on records during the committee hearings. And that is the
reason why, as mentioned by the good sponsor, one of the amendments is that a
plebiscite be conducted before the law takes effect.

The question I would like to raise — and I would like to recall the statement of our
Minority Leader — is that, at this time we should not be passing it for a particular
politician.

In this particular case, it is obvious that this bill is being passed in order that the
additional territory be added to the election of the provincial officials of the province of
Isabela.

Now, is this for the benefit of any particular politician, Mr. President.

Senator Sotto. If it is, I am not aware of it, Mr. President.

150 |C o n s t i t u t i o n a l L a w I P a g e 1
 Senator Alvarez. Mr. President.

The President. With the permission of the two gentlemen on the Floor, Senator
Alvarez is recognized.

Senator Alvarez. As a born inbred citizen of this city, Mr. President, may I
share some information.

Mr. President, if we open up the election of the city to the provincial leadership, it will not
be to the benefit of the provincial leadership, because the provincial leadership will then
campaign in a bigger territory.

As a matter of fact, the ones who will benefit from this are the citizens of Santiago who
will now be enfranchised in the provincial electoral process, and whose children will have
the opportunity to grow into provincial leadership. This is one of the prime reasons why
this amendment is being put forward.

While it is true that there may have been a resolution by the city council, those who
signed the resolution were not the whole of the council. This bill was sponsored by the
congressman of that district who represents a constituency, the voice of the district.

I think, Mr. President, in considering which interest is paramount, whose voice must be
heard, and if we have to fathom the interest of the people, the law which has been
crafted here in accordance with the rules should be given account, as we do give
account to many of the legislations coming from the House on local issues.

Senator Drilon. Mr. President, the reason why I am raising this question is that,
as Senator Roco said, just two and-a-half years ago we passed a bill which indeed
disenfranchized — if we want to use that phrase — the citizens of the City of Santiago in
the matter of the provincial election. Two-and-a-half years after, we are changing the
rule.

In the original charter, the citizens of the City of Santiago participated in a plebiscite in
order to approve the conversion of the city into an independent city. I believe that the
only way to resolve this issue raised by Senator Roco is again to subject this issue to
another plebiscite as part of the provision of this proposed bill and as will be proposed by
the Committee Chairman as an amendment.

Thank you very much, Mr. President.

Senator Alvarez. Mr. President, the Constitution does not require that the
change from an independent to a component city be subjected to a plebiscite.

Secs. 10, 11, 12 of Article X of the 1987 Constitution provides as follows:

151 |C o n s t i t u t i o n a l L a w I P a g e 1
 Sec. 10. No province, city, municipality, or barangay may be created,
divided, merged, abolished, or its boundary substantially altered,
except in accordance with the criteria established in the local
government code and subject to approval by a majority of the votes
cast in a plebiscite in the political units directly affected.

This change from an independent city into a component city is none of those
enumerated. So the proposal coming from the House is in adherence to this
constitutional mandate which does not require a plebiscite.

Senator Sotto. Mr. President, the key word here is "conversion". The word
"conversion" appears in that provision wherein we must call a plebiscite. During the
public hearing, the representative of Congressman Abaya was insisting that this is not a
conversion; this is merely a reclassification. But it is clear in the bill.

We are amending a bill that converts, and we are converting it into a component city.
That is how the members of the committee felt. That is why we have proposed an
amendment to this, and this is to incorporate a plebiscite in as much as there is no
provision on incorporating a plebiscite. Because we would like not only to give the other
people of Santiago a chance or be enfranchised as far as the leadership of the province
is concerned, but also we will give a chance to those who are opposing it. To them, this
is the best compromise. Let the people decide, instead of the political leaders of Isabela
deciding for them.

Senator Tatad. Mr. President.

The President. The Majority Leader is recognized.

Senator Tatad. At this point, Mr. President, I think we can move to close the
period of interpellations.

The President. Is there any objection? [Silence] There being none, the motion
is approved.

Senator Tatad. I move that we now consider the committee amendments, Mr.
President.

The President. Is there any objection? [Silence] There being none the motion is
approved.

Senator Sotto. On page 2, after line 13, insert a new Section 3, as follows:

152 |C o n s t i t u t i o n a l L a w I P a g e 1
Sec 3. SECTION 49 OF REPUBLIC ACT NO. 7720 IS HEREBY AMENDED BY
DELETING THE ENTIRE SECTION AND IN ITS STEAD SUBSTITUTE THE
FOLLOWING:

Sec. 49. PLEBISCITE. — THE CONVERSION OF THE CITY OF

SANTIAGO INTO A COMPONENT CITY OF THE PROVINCE OF
ISABELA SHALL TAKE EFFECT UPON THE RETIFICATION OF
THIS ACT BY A MAJORITY OF THE PEOPLE OF SAID CITY IN A
PLEBISCITE WHICH SHALL BE HELD FOR THE PURPOSE
WITHIN SIXTY (60) DAYS FROM THE APPROVAL OF THIS ACT.
THE COMMISSION ON ELECTIONS SHALL CONDUCT AND
SUPERVISE SUCH PLEBISCITE.

The President. Is there any objection?

Senator Enrile. Mr. President.

The President. Senator Enrile is recognized.

Senator Enrile. I object to this committee amendment, Mr. President.

SUSPENSION OF SESSION

Senator Tatad. May I ask for a one-minute suspension of the session.

The President. The session is suspended for a few minutes if there is no

objection. [There was none].

It was 7:54 p.m.

RESUMPTION OF SESSION

At 7:57 p.m., the session was resumed.

The President. The session is resumed.

Senator Sotto is recognized.

Senator Sotto. Mr. President, after a very enlightening conversation with the
elders of the Body, I withdraw my amendment.

The President. The amendment is withdrawn.

153 |C o n s t i t u t i o n a l L a w I P a g e 1
 Senator Maceda. Mr. President.

The President. Senator Maceda is recognized.

Senator Maceda. We wish to thank the sponsor for the withdrawal of the
amendment.

Mr. President, with due respect to the Senator from Isabela — I am no great fan of the
Senator from Isabela — but it so happens that this is a local bill affecting not only his
province but his own city where he is a resident and registered voter.

So, unless the issue is really a matter of life and death and of national importance,
senatorial courtesy demands that we, as much as possible, accommodate the request of
the Senator from Isabela as we have done on matters affecting the district of other
senators. I need not remind them.

Thank you anyway, Mr. President.

Senator Alvarez. Mr. President.

The President. Senator Alvarez is recognized.

Senator Alvarez. Mr. President, may I express my deepest appreciation for the
statement of the gentleman from Ilocos and Laguna. Whatever he may have said, the
feeling is not mutual. At least for now, I have suddenly become his great fan for the
evening.

May I put on record, Mr. President, that I campaigned against the cityhood of Santiago
not because I do not want it to be a city but because it had disenfranchised the young
men of my city from aspiring for the leadership of the province. The town is the gem of
the province. How could we extricate the town from the province?

But I would like to thank the gentleman, Mr. President, and also the Chairman of the
Committee.

Senator Tatad. Mr. President.

The President. The Majority Leader is recognized.

Senator Tatad. There being no committee amendments, I move that the period
of committee amendments be closed.

154 |C o n s t i t u t i o n a l L a w I P a g e 1
 The President. Shall we amend the title of this bill by removing the word
"independent" preceding "component city"?

Senator Sotto. No, Mr. President. We are merely citing the title. The main title
of this House Bill No. 8729 is "An Act Amending Certain Sections of Republic Act 7720".
The title is the title of Republic Act 7720. So, I do not think that we should amend that
anymore.

The President. What is the pending motion? Will the gentleman kindly state the
motion?

Senator Tatad. I move that we close the period of committee amendments.

The President. Is there any objection? [Silence] There being none, the motion
is approved.

Senator Tatad. Unless there are any individual amendments, I move that we
close the period of individual amendments.

The President. Is there any objection? [Silence] There being none, the period
of individual amendments is closed.

APPROVAL OF H.B. NO. 8729 ON SECOND READING

Senator Tatad. Mr. President, I move that we vote on Second Reading on

House Bill No. 8729.

The President. Is there any objection? [Silence] There being none, we shall
now vote on Second Reading on House Bill No. 8729.

As many as are in favor of the bill, say aye.

Several Members. Aye.

As many as are against the bill, say nay. [Silences]

House Bill No. 8279 is approved on Second Reading.

The debates cannot but raise some quizzical eyebrows on the real purpose for the downgrading of
the city of Santiago. There is all the reason to listen to the voice of the people of the city via a
plebiscite.

155 |C o n s t i t u t i o n a l L a w I P a g e 1
In the case of Tan, et al. v. COMELEC,15 BP 885 was enacted partitioning the province of Negros Occidental
without consulting its people in a plebiscite. In his concurring opinion striking down the law as
unconstitutional, Chief Justice Teehankee cited the illicit political purpose behind its enactment, viz:

The scenario, as petitioners urgently asserted, was "to have the creation of the new
Province a fait accompli by the time elections are held on February 7, 1986. The
transparent purpose is unmistakably so that the new Governor and other officials shall by
then have been installed in office, ready to function for purposes of the election for
President and Vice-President." Thus, the petitioners reported after the event: "With
indecent haste, the plebiscite was held; Negros del Norte was set up and proclaimed by
President Marcos as in existence; a new set of government officials headed by Governor
Armando Gustilo was appointed; and, by the time the elections were held on February 7,
1986, the political machinery was in place to deliver the "solid North" to ex-President
Marcos. The rest is history. What happened in Negros del Norte during the elections —
the unashamed use of naked power and resources — contributed in no small way to
arousing "people's power" and steel the ordinary citizen to perform deeds of courage and
patriotism that makes one proud to be a Filipino today.

The challenged Act is manifestly void and unconstitutional. Consequently, all the
implementing acts complained of, viz., the plebiscite, the proclamation of a new province
of Negros del Norte and the appointment of its officials are equally void. The limited
holding of the plebiscite only in the areas of the proposed new province (as provided by
Section 4 of the Act) to the exclusion of the voters of the remaining areas of the integral
province of Negros Occidental (namely, the three cities of Bacolod, Bago and La Carlota
and the Municipalities of Las Castellana, Isabela, Moises Padilla, Pontevedra, Hinigaran,
Himamaylan, Kabankalan, Murcia, Valladoid, San Enrique, Ilog, Cauayan, Hinoba-an
and Sipalay and Candoni), grossly contravenes and disregards the mandate of Article XI,
section 3 of the then prevailing 1973 Constitution that no province may be created or
divided or its boundary substantially altered without "the approval of a majority of the
votes in a plebiscite in the unit or units affected." It is plain that all the cities and
municipalities of the province of Negros Occidental, not merely those of the proposed
new province, comprise the units affected. It follows that the voters of the whole and
entire province of Negros Occidental have to participate and give their approval in the
plebiscite, because the whole is affected by its proposed division and substantial
alteration of its boundary. To limit the plebiscite to only the voters of the areas to be
partitioned and seceded from the province is as absurd and illogical as allowing only the
secessionists to vote for the secession that they demanded against the wishes of the
majority and to nullify the basic principle of majority rule.

Mr. Justice Mendoza and Mr. Justice Buena also cite two instances when allegedly independent component
cities were downgraded into component cities without need of a plebiscite. They cite the City of Oroquieta,
Misamis Occidental, 16 and the City of San Carlos, Pangasinan 17 whose charters were amended to allow
their people to vote and be voted upon in the election of officials of the province to which their city belongs
without submitting the amendment to a plebiscite. With due respect, the cities of Oroquieta and San Carlos
are not similarly situated as the city of Santiago. The said two cities then were not independent component
cities unlike the city of Santiago. The two cities were chartered but were not independent component cities

156 |C o n s t i t u t i o n a l L a w I P a g e 1
for both were not highly urbanized cities which alone were considered independent cities at that time. Thus,
when the case of San Carlos City was under consideration by the Senate, Senator Pimentel explained: 18

. . . Senator Pimentel. The bill under consideration, Mr. President, merely empowers the
voters of San Carlos to vote in the elections of provincial officials. There is no intention
whatsoever to downgrade the status of the City of San Carlos and there is no showing
whatsoever that the enactment of this bill will, in any way, diminish the powers and
prerogatives already enjoyed by the City of San Carlos. In fact, the City of San Carlos as
of now, is a component city. It is not a highly urbanized city. Therefore, this bill merely, as
we said earlier, grants the voters of the city, the power to vote in provincial elections,
without in any way changing the character of its being a component city. It is for this
reason that I vote in favor of this bill.

It was Senator Pimentel who also sponsored the bill 19 allowing qualified voters of the city of
Oroquieta to vote in provincial elections of the province of Misamis Occidental. In his sponsorship
speech, he explained that the right to vote being given to the people of Oroquieta City was
consistent with its status as a component city. 20 Indeed, during the debates, former Senator
Neptali Gonzales pointed out the need to remedy the anomalous situation then obtaining". . . where
voters of one component city cannot vote simply because their charters so provide." 21 Thus,
Congress amended other charters of component cities prohibiting their people from voting in
provincial elections.

IN VIEW WHEREOF, the petition is granted. Republic Act No. 8528 is declared unconstitutional and the writ
of prohibition is hereby issued commanding the respondents to desist from implementing said law.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Kapunan, Panganiban, Pardo, Gonzaga-Reyes and Ynares-Santiago, JJ.,
concur.

Vitug, J., pls. see separate opinion.

Mendoza, J., please see dissent.

Quisumbing and Purisima, JJ., we join Justice Mendoza in his dissent.

Buena, J., please see dissent.

157 |C o n s t i t u t i o n a l L a w I P a g e 1
 EN BANC

G.R. No. 127882 December 1, 2004

LA BUGAL-B'LAAN TRIBAL ASSOCIATION, INC., Represented by its Chairman F'LONG MIGUEL M.

LUMAYONG; WIGBERTO E. TAÑADA; PONCIANO BENNAGEN; JAIME TADEO; RENATO R.
CONSTANTINO JR.; F'LONG AGUSTIN M. DABIE; ROBERTO P. AMLOY; RAQIM L. DABIE; SIMEON H.
DOLOJO; IMELDA M. GANDON; LENY B. GUSANAN; MARCELO L. GUSANAN; QUINTOL A.
LABUAYAN; LOMINGGES D. LAWAY; BENITA P. TACUAYAN; Minors JOLY L. BUGOY, Represented
by His Father UNDERO D. BUGOY and ROGER M. DADING; Represented by His Father ANTONIO L.
DADING; ROMY M. LAGARO, Represented by His Father TOTING A. LAGARO; MIKENY JONG B.
LUMAYONG, Represented by His Father MIGUEL M. LUMAYONG; RENE T. MIGUEL, Represented by
His Mother EDITHA T. MIGUEL; ALDEMAR L. SAL, Represented by His Father DANNY M. SAL; DAISY
RECARSE, Represented by Her Mother LYDIA S. SANTOS; EDWARD M. EMUY; ALAN P.
MAMPARAIR; MARIO L. MANGCAL; ALDEN S. TUSAN; AMPARO S. YAP; VIRGILIO CULAR; MARVIC
M.V.F. LEONEN; JULIA REGINA CULAR, GIAN CARLO CULAR, VIRGILIO CULAR JR., Represented by
Their Father VIRGILIO CULAR; PAUL ANTONIO P. VILLAMOR, Represented by His Parents JOSE
VILLAMOR and ELIZABETH PUA-VILLAMOR; ANA GININA R. TALJA, Represented by Her Father
MARIO JOSE B. TALJA; SHARMAINE R. CUNANAN, Represented by Her Father ALFREDO M.
CUNANAN; ANTONIO JOSE A. VITUG III, Represented by His Mother ANNALIZA A. VITUG, LEAN D.
NARVADEZ, Represented by His Father MANUEL E. NARVADEZ JR.; ROSERIO MARALAG
LINGATING, Represented by Her Father RIO OLIMPIO A. LINGATING; MARIO JOSE B. TALJA; DAVID
E. DE VERA; MARIA MILAGROS L. SAN JOSE; Sr. SUSAN O. BOLANIO, OND; LOLITA G.
DEMONTEVERDE; BENJIE L. NEQUINTO;1 ROSE LILIA S. ROMANO; ROBERTO S. VERZOLA;
EDUARDO AURELIO C. REYES; LEAN LOUEL A. PERIA, Represented by His Father ELPIDIO V.
PERIA;2 GREEN FORUM PHILIPPINES; GREEN FORUM WESTERN VISAYAS (GF-WV);
ENVIRONMENTAL LEGAL ASSISTANCE CENTER (ELAC); KAISAHAN TUNGO SA KAUNLARAN NG
KANAYUNAN AT REPORMANG PANSAKAHAN (KAISAHAN);3 PARTNERSHIP FOR AGRARIAN
REFORM and RURAL DEVELOPMENT SERVICES, INC. (PARRDS); PHILIPPINE PARTNERSHIP FOR
THE DEVELOPMENT OF HUMAN RESOURCES IN THE RURAL AREAS, INC. (PHILDHRRA); WOMEN'S
LEGAL BUREAU (WLB); CENTER FOR ALTERNATIVE DEVELOPMENT INITIATIVES, INC. (CADI);
UPLAND DEVELOPMENT INSTITUTE (UDI); KINAIYAHAN FOUNDATION, INC.; SENTRO NG
ALTERNATIBONG LINGAP PANLIGAL (SALIGAN); and LEGAL RIGHTS AND NATURAL RESOURCES
CENTER, INC. (LRC), petitioners,
vs.
VICTOR O. RAMOS, Secretary, Department of Environment and Natural Resources (DENR); HORACIO

158 |C o n s t i t u t i o n a l L a w I P a g e 1
RAMOS, Director, Mines and Geosciences Bureau (MGB-DENR); RUBEN TORRES, Executive
Secretary; and WMC (PHILIPPINES), INC.,4 respondents.

RESOLUTION

PANGANIBAN, J.:

All mineral resources are owned by the State. Their exploration, development and utilization (EDU) must
always be subject to the full control and supervision of the State. More specifically, given the inadequacy of
Filipino capital and technology in large-scale EDU activities, the State may secure the help of foreign
companies in all relevant matters -- especially financial and technical assistance -- provided that, at all times,
the State maintains its right of full control. The foreign assistor or contractor assumes all financial, technical
and entrepreneurial risks in the EDU activities; hence, it may be given reasonable management, operational,
marketing, audit and other prerogatives to protect its investments and to enable the business to succeed.

Full control is not anathematic to day-to-day management by the contractor, provided that the State retains
the power to direct overall strategy; and to set aside, reverse or modify plans and actions of the contractor.
The idea of full control is similar to that which is exercised by the board of directors of a private corporation:
the performance of managerial, operational, financial, marketing and other functions may be delegated to
subordinate officers or given to contractual entities, but the board retains full residual control of the business.

Who or what organ of government actually exercises this power of control on behalf of the State? The
Constitution is crystal clear: the President. Indeed, the Chief Executive is the official constitutionally
mandated to "enter into agreements with foreign owned corporations." On the other hand, Congress may
review the action of the President once it is notified of "every contract entered into in accordance with this
[constitutional] provision within thirty days from its execution." In contrast to this express mandate of the
President and Congress in the EDU of natural resources, Article XII of the Constitution is silent on the role of
the judiciary. However, should the President and/or Congress gravely abuse their discretion in this regard,
the courts may -- in a proper case -- exercise their residual duty under Article VIII. Clearly then, the judiciary
should not inordinately interfere in the exercise of this presidential power of control over the EDU of our
natural resources.

The Constitution should be read in broad, life-giving strokes. It should not be used to strangulate economic
growth or to serve narrow, parochial interests. Rather, it should be construed to grant the President and
Congress sufficient discretion and reasonable leeway to enable them to attract foreign investments and
expertise, as well as to secure for our people and our posterity the blessings of prosperity and peace.

159 |C o n s t i t u t i o n a l L a w I P a g e 1
On the basis of this control standard, this Court upholds the constitutionality of the Philippine Mining Law, its
Implementing Rules and Regulations -- insofar as they relate to financial and technical agreements -- as well
as the subject Financial and Technical Assistance Agreement (FTAA).5

Background

The Petition for Prohibition and Mandamus before the Court challenges the constitutionality of (1) Republic
Act No. [RA] 7942 (The Philippine Mining Act of 1995); (2) its Implementing Rules and Regulations (DENR
Administrative Order No. [DAO] 96-40); and (3) the FTAA dated March 30, 1995,6 executed by the
government with Western Mining Corporation (Philippines), Inc. (WMCP).7

On January 27, 2004, the Court en banc promulgated its Decision8 granting the Petition and declaring the
unconstitutionality of certain provisions of RA 7942, DAO 96-40, as well as of the entire FTAA executed
between the government and WMCP, mainly on the finding that FTAAs are service contracts prohibited by
the 1987 Constitution.

The Decision struck down the subject FTAA for being similar to service contracts, 9 which, though permitted
under the 1973 Constitution,10 were subsequently denounced for being antithetical to the principle of
sovereignty over our natural resources, because they allowed foreign control over the exploitation of our
natural resources, to the prejudice of the Filipino nation.

The Decision quoted several legal scholars and authors who had criticized service contracts for, inter
alia, vesting in the foreign contractor exclusive management and control of the enterprise, including operation
of the field in the event petroleum was discovered; control of production, expansion and development; nearly
unfettered control over the disposition and sale of the products discovered/extracted; effective ownership of
the natural resource at the point of extraction; and beneficial ownership of our economic resources.
According to the Decision, the 1987 Constitution (Section 2 of Article XII) effectively banned such service
contracts.

Subsequently, respondents filed separate Motions for Reconsideration. In a Resolution dated March 9, 2004,
the Court required petitioners to comment thereon. In the Resolution of June 8, 2004, it set the case for Oral
Argument on June 29, 2004.

After hearing the opposing sides, the Court required the parties to submit their respective Memoranda in
amplification of their arguments. In a Resolution issued later the same day, June 29, 2004, the Court
noted, inter alia, the Manifestation and Motion (in lieu of comment) filed by the Office of the Solicitor General
(OSG) on behalf of public respondents. The OSG said that it was not interposing any objection to the Motion
for Intervention filed by the Chamber of Mines of the Philippines, Inc. (CMP) and was in fact joining and
adopting the latter's Motion for Reconsideration.

Memoranda were accordingly filed by the intervenor as well as by petitioners, public respondents, and
private respondent, dwelling at length on the three issues discussed below. Later, WMCP submitted its Reply

160 |C o n s t i t u t i o n a l L a w I P a g e 1
Memorandum, while the OSG -- in obedience to an Order of this Court -- filed a Compliance submitting
copies of more FTAAs entered into by the government.

Three Issues Identified by the Court

During the Oral Argument, the Court identified the three issues to be resolved in the present controversy, as
follows:

1. Has the case been rendered moot by the sale of WMC shares in WMCP to Sagittarius (60 percent of
Sagittarius' equity is owned by Filipinos and/or Filipino-owned corporations while 40 percent is owned by
Indophil Resources NL, an Australian company) and by the subsequent transfer and registration of the FTAA
from WMCP to Sagittarius?

2. Assuming that the case has been rendered moot, would it still be proper to resolve the constitutionality of
the assailed provisions of the Mining Law, DAO 96-40 and the WMCP FTAA?

3. What is the proper interpretation of the phrase Agreements Involving Either Technical or Financial
Assistancecontained in paragraph 4 of Section 2 of Article XII of the Constitution?

Should the Motion for Reconsideration Be Granted?

Respondents' and intervenor's Motions for Reconsideration should be granted, for the reasons discussed
below. The foregoing three issues identified by the Court shall now be taken up seriatim.

First Issue:

Mootness

In declaring unconstitutional certain provisions of RA 7942, DAO 96-40, and the WMCP FTAA, the majority
Decision agreed with petitioners' contention that the subject FTAA had been executed in violation of Section
2 of Article XII of the 1987 Constitution. According to petitioners, the FTAAs entered into by the government
with foreign-owned corporations are limited by the fourth paragraph of the said provision to agreements
involving only technical or financial assistance for large-scale exploration, development and utilization of
minerals, petroleum and other mineral oils. Furthermore, the foreign contractor is allegedly permitted by the
FTAA in question to fully manage and control the mining operations and, therefore, to acquire "beneficial
ownership" of our mineral resources.

The Decision merely shrugged off the Manifestation by WMPC informing the Court (1) that on January 23,
2001, WMC had sold all its shares in WMCP to Sagittarius Mines, Inc., 60 percent of whose equity was held
by Filipinos; and (2) that the assailed FTAA had likewise been transferred from WMCP to
Sagittarius.11 The ponencia declared that the instant case had not been rendered moot by the transfer and
registration of the FTAA to a Filipino-owned corporation, and that the validity of the said transfer remained in
dispute and awaited final judicial determination.12Patently therefore, the Decision is anchored on the
assumption that WMCP had remained a foreign corporation.

161 |C o n s t i t u t i o n a l L a w I P a g e 1
The crux of this issue of mootness is the fact that WMCP, at the time it entered into the FTAA, happened to
be wholly owned by WMC Resources International Pty., Ltd. (WMC), which in turn was a wholly owned
subsidiary of Western Mining Corporation Holdings Ltd., a publicly listed major Australian mining and
exploration company.

The nullity of the FTAA was obviously premised upon the contractor being a foreign corporation. Had the
FTAA been originally issued to a Filipino-owned corporation, there would have been no constitutionality issue
to speak of. Upon the other hand, the conveyance of the WMCP FTAA to a Filipino corporation can be
likened to the sale of land to a foreigner who subsequently acquires Filipino citizenship, or who later resells
the same land to a Filipino citizen. The conveyance would be validated, as the property in question would no
longer be owned by a disqualified vendee.

And, inasmuch as the FTAA is to be implemented now by a Filipino corporation, it is no longer possible for
the Court to declare it unconstitutional. The case pending in the Court of Appeals is a dispute between two
Filipino companies (Sagittarius and Lepanto), both claiming the right to purchase the foreign shares in
WMCP. So, regardless of which side eventually wins, the FTAA would still be in the hands of a qualified
Filipino company. Considering that there is no longer any justiciable controversy, the plea to nullify the
Mining Law has become a virtual petition for declaratory relief, over which this Court has no original
jurisdiction.

In their Final Memorandum, however, petitioners argue that the case has not become moot, considering the
invalidity of the alleged sale of the shares in WMCP from WMC to Sagittarius, and of the transfer of the FTAA
from WMCP to Sagittarius, resulting in the change of contractor in the FTAA in question. And even assuming
that the said transfers were valid, there still exists an actual case predicated on the invalidity of RA 7942 and
its Implementing Rules and Regulations (DAO 96-40). Presently, we shall discuss petitioners' objections to
the transfer of both the shares and the FTAA. We shall take up the alleged invalidity of RA 7942 and DAO
96-40 later on in the discussion of the third issue.

No Transgression of the Constitution

by the Transfer of the WMCP Shares

Petitioners claim, first, that the alleged invalidity of the transfer of the WMCP shares to Sagittarius violates
the fourth paragraph of Section 2 of Article XII of the Constitution; second, that it is contrary to the provisions
of the WMCP FTAA itself; and third, that the sale of the shares is suspect and should therefore be the
subject of a case in which its validity may properly be litigated.

On the first ground, petitioners assert that paragraph 4 of Section 2 of Article XII permits the government to
enter into FTAAs only with foreign-owned corporations. Petitioners insist that the first paragraph of this
constitutional provision limits the participation of Filipino corporations in the exploration, development and
utilization of natural resources to only three species of contracts -- production sharing, co-production and
joint venture -- to the exclusion of all other arrangements or variations thereof, and the WMCP FTAA may
therefore not be validly assumed and implemented by Sagittarius. In short, petitioners claim that a Filipino
corporation is not allowed by the Constitution to enter into an FTAA with the government.

162 |C o n s t i t u t i o n a l L a w I P a g e 1
However, a textual analysis of the first paragraph of Section 2 of Article XII does not support petitioners'
argument. The pertinent part of the said provision states: "Sec. 2. x x x The exploration, development and
utilization of natural resources shall be under the full control and supervision of the State. The State may
directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing
agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is
owned by such citizens. x x x." Nowhere in the provision is there any express limitation or restriction insofar
as arrangements other than the three aforementioned contractual schemes are concerned.

Neither can one reasonably discern any implied stricture to that effect. Besides, there is no basis to believe
that the framers of the Constitution, a majority of whom were obviously concerned with furthering the
development and utilization of the country's natural resources, could have wanted to restrict Filipino
participation in that area. This point is clear, especially in the light of the overarching constitutional principle
of giving preference and priority to Filipinos and Filipino corporations in the development of our natural
resources.

Besides, even assuming (purely for argument's sake) that a constitutional limitation barring Filipino
corporations from holding and implementing an FTAA actually exists, nevertheless, such provision would
apply only to the transfer of the FTAA to Sagittarius, but definitely not to the sale of WMC's equity stake in
WMCP to Sagittarius. Otherwise, an unreasonable curtailment of property rights without due process of law
would ensue. Petitioners' argument must therefore fail.

FTAA Not Intended

Solely for Foreign Corporation

Equally barren of merit is the second ground cited by petitioners -- that the FTAA was intended to apply
solely to a foreign corporation, as can allegedly be seen from the provisions therein. They manage to cite
only one WMCP FTAA provision that can be regarded as clearly intended to apply only to a foreign
contractor: Section 12, which provides for international commercial arbitration under the auspices of the
International Chamber of Commerce, after local remedies are exhausted. This provision, however, does not
necessarily imply that the WMCP FTAA cannot be transferred to and assumed by a Filipino corporation like
Sagittarius, in which event the said provision should simply be disregarded as a superfluity.

No Need for a Separate

Litigation of the Sale of Shares

Petitioners claim as third ground the "suspicious" sale of shares from WMC to Sagittarius; hence, the need to
litigate it in a separate case. Section 40 of RA 7942 (the Mining Law) allegedly requires the President's prior
approval of a transfer.

A re-reading of the said provision, however, leads to a different conclusion. "Sec. 40. Assignment/Transfer --
A financial or technical assistance agreement may be assigned or transferred, in whole or in part, to a
qualified person subject to the prior approval of the President: Provided, That the President shall notify
Congress of every financial or technical assistance agreement assigned or converted in accordance with this
provision within thirty (30) days from the date of the approval thereof."

163 |C o n s t i t u t i o n a l L a w I P a g e 1
Section 40 expressly applies to the assignment or transfer of the FTAA, not to the sale and transfer of shares
of stock in WMCP. Moreover, when the transferee of an FTAA is another foreign corporation, there is a
logical application of the requirement of prior approval by the President of the Republic and notification to
Congress in the event of assignment or transfer of an FTAA. In this situation, such approval and notification
are appropriate safeguards, considering that the new contractor is the subject of a foreign government.

On the other hand, when the transferee of the FTAA happens to be a Filipino corporation, the need for such
safeguard is not critical; hence, the lack of prior approval and notification may not be deemed fatal as to
render the transfer invalid. Besides, it is not as if approval by the President is entirely absent in this instance.
As pointed out by private respondent in its Memorandum,13 the issue of approval is the subject of one of the
cases brought by Lepanto against Sagittarius in GR No. 162331. That case involved the review of the
Decision of the Court of Appeals dated November 21, 2003 in CA-GR SP No. 74161, which affirmed the
DENR Order dated December 31, 2001 and the Decision of the Office of the President dated July 23, 2002,
both approving the assignment of the WMCP FTAA to Sagittarius.

Petitioners also question the sale price and the financial capacity of the transferee. According to the Deed of
Absolute Sale dated January 23, 2001, executed between WMC and Sagittarius, the price of the WMCP
shares was fixed at US$9,875,000, equivalent to P553 million at an exchange rate of 56:1. Sagittarius had an
authorized capital stock of P250 million and a paid up capital of P60 million. Therefore, at the time of
approval of the sale by the DENR, the debt-to-equity ratio of the transferee was over 9:1 -- hardly ideal for an
FTAA contractor, according to petitioners.

However, private respondents counter that the Deed of Sale specifically provides that the payment of the
purchase price would take place only after Sagittarius' commencement of commercial production from mining
operations, if at all. Consequently, under the circumstances, we believe it would not be reasonable to
conclude, as petitioners did, that the transferee's high debt-to-equity ratio per se necessarily carried negative
implications for the enterprise; and it would certainly be improper to invalidate the sale on that basis, as
petitioners propose.

FTAA Not Void,

Thus Transferrable

To bolster further their claim that the case is not moot, petitioners insist that the FTAA is void and, hence
cannot be transferred; and that its transfer does not operate to cure the constitutional infirmity that is inherent
in it; neither will a change in the circumstances of one of the parties serve to ratify the void contract.

While the discussion in their Final Memorandum was skimpy, petitioners in their Comment (on the MR) did
ratiocinate that this Court had declared the FTAA to be void because, at the time it was executed with
WMCP, the latter was a fully foreign-owned corporation, in which the former vested full control and
management with respect to the exploration, development and utilization of mineral resources, contrary to
the provisions of paragraph 4 of Section 2 of Article XII of the Constitution. And since the FTAA was per se
void, no valid right could be transferred; neither could it be ratified, so petitioners conclude.

Petitioners have assumed as fact that which has yet to be established. First and foremost, the Decision of
this Court declaring the FTAA void has not yet become final. That was precisely the reason the Court still

164 |C o n s t i t u t i o n a l L a w I P a g e 1
heard Oral Argument in this case. Second, the FTAA does not vest in the foreign corporation full control and
supervision over the exploration, development and utilization of mineral resources, to the exclusion of the
government. This point will be dealt with in greater detail below; but for now, suffice it to say that a perusal of
the FTAA provisions will prove that the government has effective overall direction and control of the mining
operations, including marketing and product pricing, and that the contractor's work programs and budgets are
subject to its review and approval or disapproval.

As will be detailed later on, the government does not have to micro-manage the mining operations and dip its
hands into the day-to-day management of the enterprise in order to be considered as having overall control
and direction. Besides, for practical and pragmatic reasons, there is a need for government agencies to
delegate certain aspects of the management work to the contractor. Thus the basis for declaring the FTAA
void still has to be revisited, reexamined and reconsidered.

Petitioners sniff at the citation of Chavez v. Public Estates Authority,14 and Halili v. CA,15 claiming that the
doctrines in these cases are wholly inapplicable to the instant case.

Chavez clearly teaches: "Thus, the Court has ruled consistently that where a Filipino citizen sells land to an
alien who later sells the land to a Filipino, the invalidity of the first transfer is corrected by the subsequent
sale to a citizen. Similarly, where the alien who buys the land subsequently acquires Philippine citizenship,
the sale is validated since the purpose of the constitutional ban to limit land ownership to Filipinos has been
achieved. In short, the law disregards the constitutional disqualification of the buyer to hold land if the land is
subsequently transferred to a qualified party, or the buyer himself becomes a qualified party." 16

In their Comment, petitioners contend that in Chavez and Halili, the object of the transfer (the land) was not
what was assailed for alleged unconstitutionality. Rather, it was the transaction that was assailed; hence
subsequent compliance with constitutional provisions would cure its infirmity. In contrast, in the instant case it
is the FTAA itself, the object of the transfer, that is being assailed as invalid and unconstitutional. So,
petitioners claim that the subsequent transfer of a void FTAA to a Filipino corporation would not cure the
defect.

Petitioners are confusing themselves. The present Petition has been filed, precisely because the grantee of
the FTAA was a wholly owned subsidiary of a foreign corporation. It cannot be gainsaid that anyone would
have asserted that the same FTAA was void if it had at the outset been issued to a Filipino corporation. The
FTAA, therefore, is not per se defective or unconstitutional. It was questioned only because it had been
issued to an allegedly non-qualified, foreign-owned corporation.

We believe that this case is clearly analogous to Halili, in which the land acquired by a non-Filipino was re-
conveyed to a qualified vendee and the original transaction was thereby cured. Paraphrasing Halili, the same
rationale applies to the instant case: assuming arguendo the invalidity of its prior grant to a foreign
corporation, the disputed FTAA -- being now held by a Filipino corporation -- can no longer be assailed; the
objective of the constitutional provision -- to keep the exploration, development and utilization of our natural
resources in Filipino hands -- has been served.

More accurately speaking, the present situation is one degree better than that obtaining in Halili, in which the
original sale to a non-Filipino was clearly and indisputably violative of the constitutional prohibition and thus

165 |C o n s t i t u t i o n a l L a w I P a g e 1
void ab initio. In the present case, the issuance/grant of the subject FTAA to the then foreign-owned WMCP
was not illegal, void or unconstitutional at the time. The matter had to be brought to court, precisely for
adjudication as to whether the FTAA and the Mining Law had indeed violated the Constitution. Since, up to
this point, the decision of this Court declaring the FTAA void has yet to become final, to all intents and
purposes, the FTAA must be deemed valid and constitutional.17

At bottom, we find completely outlandish petitioners' contention that an FTAA could be entered into by the
government only with a foreign corporation, never with a Filipino enterprise. Indeed, the nationalistic
provisions of the Constitution are all anchored on the protection of Filipino interests. How petitioners can now
argue that foreigners have the exclusive right to FTAAs totally overturns the entire basis of the Petition --
preference for the Filipino in the exploration, development and utilization of our natural resources. It does not
take deep knowledge of law and logic to understand that what the Constitution grants to foreigners should be
equally available to Filipinos.

Second Issue:

Whether the Court Can Still Decide the Case,

Even Assuming It Is Moot

All the protagonists are in agreement that the Court has jurisdiction to decide this controversy, even
assuming it to be moot.

Petitioners stress the following points. First, while a case becomes moot and academic when "there is no
more actual controversy between the parties or no useful purpose can be served in passing upon the
merits,"18 what is at issue in the instant case is not only the validity of the WMCP FTAA, but also the
constitutionality of RA 7942 and its Implementing Rules and Regulations. Second, the acts of private
respondent cannot operate to cure the law of its alleged unconstitutionality or to divest this Court of its
jurisdiction to decide. Third, the Constitution imposes upon the Supreme Court the duty to declare invalid any
law that offends the Constitution.

Petitioners also argue that no amendatory laws have been passed to make the Mining Act of 1995 conform
to constitutional strictures (assuming that, at present, it does not); that public respondents will continue to
implement and enforce the statute until this Court rules otherwise; and that the said law continues to be the
source of legal authority in accepting, processing and approving numerous applications for mining rights.

Indeed, it appears that as of June 30, 2002, some 43 FTAA applications had been filed with the Mines and
Geosciences Bureau (MGB), with an aggregate area of 2,064,908.65 hectares -- spread over Luzon, the
Visayas and Mindanao19 -- applied for. It may be a bit far-fetched to assert, as petitioners do, that each and
every FTAA that was entered into under the provisions of the Mining Act "invites potential litigation" for as
long as the constitutional issues are not resolved with finality. Nevertheless, we must concede that there
exists the distinct possibility that one or more of the future FTAAs will be the subject of yet another suit
grounded on constitutional issues.

But of equal if not greater significance is the cloud of uncertainty hanging over the mining industry, which is
even now scaring away foreign investments. Attesting to this climate of anxiety is the fact that the Chamber

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of Mines of the Philippines saw the urgent need to intervene in the case and to present its position during the
Oral Argument; and that Secretary General Romulo Neri of the National Economic Development Authority
(NEDA) requested this Court to allow him to speak, during that Oral Argument, on the economic
consequences of the Decision of January 27, 2004.20

We are convinced. We now agree that the Court must recognize the exceptional character of the situation
and the paramount public interest involved, as well as the necessity for a ruling to put an end to the
uncertainties plaguing the mining industry and the affected communities as a result of doubts cast upon the
constitutionality and validity of the Mining Act, the subject FTAA and future FTAAs, and the need to avert a
multiplicity of suits. Paraphrasing Gonzales v. Commission on Elections,21 it is evident that strong reasons of
public policy demand that the constitutionality issue be resolved now.22

In further support of the immediate resolution of the constitutionality issue, public respondents cite Acop v.
Guingona,23 to the effect that the courts will decide a question -- otherwise moot and academic -- if it
is "capable of repetition, yet evading review."24 Public respondents ask the Court to avoid a situation in which
the constitutionality issue may again arise with respect to another FTAA, the resolution of which may not be
achieved until after it has become too late for our mining industry to grow out of its infancy. They also
recall Salonga v. Cruz Paño,25 in which this Court declared that "(t)he Court also has the duty to formulate
guiding and controlling constitutional principles, precepts, doctrines or rules. It has the symbolic function of
educating the bench and bar on the extent of protection given by constitutional guarantees. x x x."

The mootness of the case in relation to the WMCP FTAA led the undersigned ponente to state in his dissent
to the Decision that there was no more justiciable controversy and the plea to nullify the Mining Law has
become a virtual petition for declaratory relief.26 The entry of the Chamber of Mines of the Philippines, Inc.,
however, has put into focus the seriousness of the allegations of unconstitutionality of RA 7942 and DAO 96-
40 which converts the case to one for prohibition27 in the enforcement of the said law and regulations.

Indeed, this CMP entry brings to fore that the real issue in this case is whether paragraph 4 of Section 2 of
Article XII of the Constitution is contravened by RA 7942 and DAO 96-40, not whether it was violated by
specific acts implementing RA 7942 and DAO 96-40. "[W]hen an act of the legislative department is seriously
alleged to have infringed the Constitution, settling the controversy becomes the duty of this Court. By the
mere enactment of the questioned law or the approval of the challenged action, the dispute is said to have
ripened into a judicial controversy even without any other overt act."28 This ruling can be traced from Tañada
v. Angara,29 in which the Court said:

"In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the
Constitution, the petition no doubt raises a justiciable controversy. Where an action of the
legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the
right but in fact the duty of the judiciary to settle the dispute.

xxxxxxxxx

"As this Court has repeatedly and firmly emphasized in many cases, it will not shirk, digress from or
abandon its sacred duty and authority to uphold the Constitution in matters that involve grave

167 |C o n s t i t u t i o n a l L a w I P a g e 1
 abuse of discretion brought before it in appropriate cases, committed by any officer, agency,
instrumentality or department of the government."30

Additionally, the entry of CMP into this case has also effectively forestalled any possible objections arising
from the standing or legal interest of the original parties.

For all the foregoing reasons, we believe that the Court should proceed to a resolution of the constitutional
issues in this case.

Third Issue:

The Proper Interpretation of the Constitutional Phrase

"Agreements Involving Either Technical or Financial Assistance"

The constitutional provision at the nucleus of the controversy is paragraph 4 of Section 2 of Article XII of the
1987 Constitution. In order to appreciate its context, Section 2 is reproduced in full:

"Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception of agricultural lands, all other natural
resources shall not be alienated. The exploration, development and utilization of natural resources
shall be under the full control and supervision of the State. The State may directly undertake such
activities, or it may enter into co-production, joint venture or production-sharing agreements with
Filipino citizens or corporations or associations at least sixty per centum of whose capital is owned
by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable
for not more than twenty-five years, and under such terms and conditions as may be provided by
law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, beneficial use may be the measure and limit of the grant.

"The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and
exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

"The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as
well as cooperative fish farming, with priority to subsistence fishermen and fish-workers in rivers,
lakes, bays and lagoons.

"The President may enter into agreements with foreign-owned corporations involving either
technical or financial assistance for large-scale exploration, development, and utilization of
minerals, petroleum, and other mineral oils according to the general terms and conditions
provided by law, based on real contributions to the economic growth and general welfare of the
country. In such agreements, the State shall promote the development and use of local scientific
and technical resources.

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 "The President shall notify the Congress of every contract entered into in accordance with this
provision, within thirty days from its execution."31

No Restriction of Meaning by
a Verba Legis Interpretation

To interpret the foregoing provision, petitioners adamantly assert that the language of the Constitution should
prevail; that the primary method of interpreting it is to seek the ordinary meaning of the words used in its
provisions. They rely on rulings of this Court, such as the following:

"The fundamental principle in constitutional construction however is that the primary source from
which to ascertain constitutional intent or purpose is the language of the provision itself. The
presumption is that the words in which the constitutional provisions are couched express the
objective sought to be attained. In other words, verba legis prevails. Only when the meaning of the
words used is unclear and equivocal should resort be made to extraneous aids of construction and
interpretation, such as the proceedings of the Constitutional Commission or Convention to shed
light on and ascertain the true intent or purpose of the provision being construed." 32

Very recently, in Francisco v. The House of Representatives,33 this Court indeed had the occasion to reiterate
the well-settled principles of constitutional construction:

"First, verba legis, that is, wherever possible, the words used in the Constitution must be given
their ordinary meaning except where technical terms are employed. x x x.

xxxxxxxxx

"Second, where there is ambiguity, ratio legis est anima. The words of the Constitution should be
interpreted in accordance with the intent of its framers. x x x.

xxxxxxxxx

"Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a whole."34

For ease of reference and in consonance with verba legis, we reconstruct and stratify the aforequoted
Section 2 as follows:

1. All natural resources are owned by the State. Except for agricultural lands, natural resources
cannot be alienated by the State.

2. The exploration, development and utilization (EDU) of natural resources shall be under the full
control and supervision of the State.

3. The State may undertake these EDU activities through either of the following:

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 (a) By itself directly and solely

(b) By (i) co-production; (ii) joint venture; or (iii) production sharing agreements with
Filipino citizens or corporations, at least 60 percent of the capital of which is owned by
such citizens

4. Small-scale utilization of natural resources may be allowed by law in favor of Filipino citizens.

5. For large-scale EDU of minerals, petroleum and other mineral oils, the President may enter into
"agreements with foreign-owned corporations involving either technical or financial assistance
according to the general terms and conditions provided by law x x x."

Note that in all the three foregoing mining activities -- exploration, development and utilization -- the State
may undertake such EDU activities by itself or in tandem with Filipinos or Filipino corporations, except in two
instances: first, in small-scale utilization of natural resources, which Filipinos may be allowed by law to
undertake; and second, in large-scale EDU of minerals, petroleum and mineral oils, which may be
undertaken by the State via "agreementswith foreign-owned corporations involving either technical or
financial assistance" as provided by law.

Petitioners claim that the phrase "agreements x x x involving either technical or financial assistance" simply
means technical assistance or financial assistance agreements, nothing more and nothing else. They insist
that there is no ambiguity in the phrase, and that a plain reading of paragraph 4 quoted above leads to the
inescapable conclusion that what a foreign-owned corporation may enter into with the government is merely
an agreement for eitherfinancial or technical assistance only, for the large-scale exploration, development
and utilization of minerals, petroleum and other mineral oils; such a limitation, they argue, excludes foreign
management and operation of a mining enterprise.35

This restrictive interpretation, petitioners believe, is in line with the general policy enunciated by the
Constitution reserving to Filipino citizens and corporations the use and enjoyment of the country's natural
resources. They maintain that this Court's Decision36 of January 27, 2004 correctly declared the WMCP
FTAA, along with pertinent provisions of RA 7942, void for allowing a foreign contractor to have direct and
exclusive management of a mining enterprise. Allowing such a privilege not only runs counter to the "full
control and supervision" that the State is constitutionally mandated to exercise over the exploration,
development and utilization of the country's natural resources; doing so also vests in the foreign company
"beneficial ownership" of our mineral resources. It will be recalled that the Decision of January 27, 2004
zeroed in on "management or other forms of assistance" or other activities associated with the "service
contracts" of the martial law regime, since "the management or operation of mining activities by foreign
contractors, which is the primary feature of service contracts, was precisely the evil that the drafters of the
1987 Constitution sought to eradicate."

On the other hand, the intervenor37 and public respondents argue that the FTAA allowed by paragraph 4 is
not merely an agreement for supplying limited and specific financial or technical services to the State.
Rather, such FTAA is a comprehensive agreement for the foreign-owned
corporation's integrated exploration, development and utilization of mineral, petroleum or other mineral oils
on a large-scale basis. The agreement, therefore, authorizes the foreign contractor's rendition of a whole

170 |C o n s t i t u t i o n a l L a w I P a g e 1
range of integrated and comprehensive services, ranging from the discovery to the development, utilization
and production of minerals or petroleum products.

We do not see how applying a strictly literal or verba legis interpretation of paragraph 4 could inexorably lead
to the conclusions arrived at in the ponencia. First, the drafters' choice of words -- their use of the
phrase agreements x x x involving either technical or financial assistance -- does not indicate the intent
to exclude other modes of assistance. The drafters opted to use involving when they could have simply
said agreements for financial or technical assistance, if that was their intention to begin with. In this case, the
limitation would be very clear and no further debate would ensue.

In contrast, the use of the word "involving" signifies the possibility of the inclusion of other forms of
assistance or activities having to do with, otherwise related to or compatible with financial or technical
assistance. The word "involving" as used in this context has three connotations that can be differentiated
thus: one, the sense of "concerning," "having to do with," or "affecting"; two, "entailing," "requiring," "implying"
or "necessitating"; and three, "including," "containing" or "comprising."38

Plainly, none of the three connotations convey a sense of exclusivity. Moreover, the word "involving," when
understood in the sense of "including," as in including technical or financial assistance, necessarily implies
that there are activities other than those that are being included. In other words, if an
agreement includes technical or financial assistance, there is apart from such assistance -- something else
already in, and covered or may be covered by, the said agreement.

In short, it allows for the possibility that matters, other than those explicitly mentioned, could be made part of
the agreement. Thus, we are now led to the conclusion that the use of the word "involving" implies that these
agreements with foreign corporations are not limited to mere financial or technical assistance. The difference
in sense becomes very apparent when we juxtapose "agreements for technical or financial assistance"
against "agreements including technical or financial assistance." This much is unalterably clear in a verba
legis approach.

Second, if the real intention of the drafters was to confine foreign corporations to financial or technical
assistance and nothing more, their language would have certainly been so unmistakably restrictive and
stringent as to leave no doubt in anyone's mind about their true intent. For example, they would have used
the sentence foreign corporations are absolutely prohibited from involvement in the management or
operation of mining or similar ventures or words of similar import. A search for such stringent wording yields
negative results. Thus, we come to the inevitable conclusion that there was a conscious and
deliberate decision to avoid the use of restrictive wording that bespeaks an intent not to use the
expression "agreements x x x involving either technical or financial assistance" in an exclusionary
and limiting manner.

Deletion of "Service Contracts" to

Avoid Pitfalls of Previous Constitutions,
Not to Ban Service Contracts Per Se

Third, we do not see how a verba legis approach leads to the conclusion that "the management or operation
of mining activities by foreign contractors, which is the primary feature of service contracts, was precisely the

171 |C o n s t i t u t i o n a l L a w I P a g e 1
evil that the drafters of the 1987 Constitution sought to eradicate." Nowhere in the above-quoted Section can
be discerned the objective to keep out of foreign hands the management or operation of mining activities or
the plan to eradicate service contracts as these were understood in the 1973 Constitution. Still, petitioners
maintain that the deletion or omission from the 1987 Constitution of the term "service contracts" found in the
1973 Constitution sufficiently proves the drafters' intent to exclude foreigners from the management of the
affected enterprises.

To our mind, however, such intent cannot be definitively and conclusively established from the mere failure to
carry the same expression or term over to the new Constitution, absent a more specific, explicit and
unequivocal statement to that effect. What petitioners seek (a complete ban on foreign participation in the
management of mining operations, as previously allowed by the earlier Constitutions) is nothing short of
bringing about a momentous sea change in the economic and developmental policies; and the fundamentally
capitalist, free-enterprise philosophy of our government. We cannot imagine such a radical shift being
undertaken by our government, to the great prejudice of the mining sector in particular and our economy in
general, merely on the basis of the omission of the terms service contract from or the failure to carry them
over to the new Constitution. There has to be a much more definite and even unarguable basis for such a
drastic reversal of policies.

Fourth, a literal and restrictive interpretation of paragraph 4, such as that proposed by petitioners, suffers
from certain internal logical inconsistencies that generate ambiguities in the understanding of the provision.
As the intervenor pointed out, there has never been any constitutional or statutory provision that reserved to
Filipino citizens or corporations, at least 60 percent of which is Filipino-owned, the rendition of financial or
technical assistance to companies engaged in mining or the development of any other natural resource. The
taking out of foreign-currency or peso-denominated loans or any other kind of financial assistance, as well as
the rendition of technical assistance -- whether to the State or to any other entity in the Philippines -- has
never been restricted in favor of Filipino citizens or corporations having a certain minimum percentage of
Filipino equity. Such a restriction would certainly be preposterous and unnecessary. As a matter of fact,
financial, and even technical assistance, regardless of the nationality of its source, would be welcomed in the
mining industry anytime with open arms, on account of the dearth of local capital and the need to continually
update technological know-how and improve technical skills.

There was therefore no need for a constitutional provision specifically allowing foreign-owned corporations to
render financial or technical assistance, whether in respect of mining or some other resource development or
commercial activity in the Philippines. The last point needs to be emphasized: if merely financial or
technical assistance agreements are allowed, there would be no need to limit them to large-scale
mining operations, as there would be far greater need for them in the smaller-scale mining activities
(and even in non-mining areas). Obviously, the provision in question was intended to refer to
agreements other than those for mere financial or technical assistance.

In like manner, there would be no need to require the President of the Republic to report to Congress, if only
financial or technical assistance agreements are involved. Such agreements are in the nature of foreign
loans that -- pursuant to Section 20 of Article VII39 of the 1987 Constitution -- the President may contract or
guarantee, merely with the prior concurrence of the Monetary Board. In turn, the Board is required to report
to Congress within thirty days from the end of every quarter of the calendar year, not thirty days after the
agreement is entered into.

172 |C o n s t i t u t i o n a l L a w I P a g e 1
And if paragraph 4 permits only agreements for loans and other forms of financial, or technical assistance,
what is the point of requiring that they be based on real contributions to the economic growth and general
welfare of the country? For instance, how is one to measure and assess the "real contributions" to the
"economic growth" and "general welfare" of the country that may ensue from a foreign-currency loan
agreement or a technical-assistance agreement for, say, the refurbishing of an existing power generating
plant for a mining operation somewhere in Mindanao? Such a criterion would make more sense when
applied to a major business investment in a principal sector of the industry.

The conclusion is clear and inescapable -- a verba legis construction shows that paragraph 4 is not to be
understood as one limited only to foreign loans (or other forms of financial support) and to technical
assistance. There is definitely more to it than that. These are provisions permitting participation by
foreign companies; requiring the President's report to Congress; and using, as yardstick,
contributions based on economic growth and general welfare. These were neither accidentally
inserted into the Constitution nor carelessly cobbled together by the drafters in lip service to shallow
nationalism. The provisions patently have significance and usefulness in a context that allows agreements
with foreign companies to include more than mere financial or technical assistance.

Fifth, it is argued that Section 2 of Article XII authorizes nothing more than a rendition of specific and limited
financial service or technical assistance by a foreign company. This argument begs the question "To whom
or for whom would it be rendered"? or Who is being assisted? If the answer is "The State," then it necessarily
implies that the State itself is the one directly and solely undertaking the large-scale exploration,
development and utilization of a mineral resource, so it follows that the State must itself bear the liability and
cost of repaying the financing sourced from the foreign lender and/or of paying compensation to the foreign
entity rendering technical assistance.

However, it is of common knowledge, and of judicial notice as well, that the government is and has for many
many years been financially strapped, to the point that even the most essential services have suffered
serious curtailments -- education and health care, for instance, not to mention judicial services -- have had to
make do with inadequate budgetary allocations. Thus, government has had to resort to build-operate-transfer
and similar arrangements with the private sector, in order to get vital infrastructure projects built without any
governmental outlay.

The very recent brouhaha over the gargantuan "fiscal crisis" or "budget deficit" merely confirms what the
ordinary citizen has suspected all along. After the reality check, one will have to admit the implausibility of a
direct undertaking -- by the State itself -- of large-scale exploration, development and utilization of minerals,
petroleum and other mineral oils. Such an undertaking entails not only humongous capital requirements, but
also the attendant risk of never finding and developing economically viable quantities of minerals, petroleum
and other mineral oils.40

It is equally difficult to imagine that such a provision restricting foreign companies to the rendition of only
financial or technical assistance to the government was deliberately crafted by the drafters of the
Constitution, who were all well aware of the capital-intensive and technology-oriented nature of large-scale
mineral or petroleum extraction and the country's deficiency in precisely those areas.41 To say so would be
tantamount to asserting that the provision was purposely designed to ladle the large-scale development and

173 |C o n s t i t u t i o n a l L a w I P a g e 1
utilization of mineral, petroleum and related resources with impossible conditions; and to remain forever and
permanently "reserved" for future generations of Filipinos.

A More Reasonable Look

at the Charter's Plain Language

Sixth, we shall now look closer at the plain language of the Charter and examining the logical inferences. The
drafters chose to emphasize and highlight agreements x x x involving either technical or financial
assistance in relation to foreign corporations' participation in large-scale EDU. The inclusion of this clause on
"technical or financial assistance" recognizes the fact that foreign business entities and multinational
corporations are the ones with the resources and know-how to provide technical and/or financial assistance
of the magnitude and type required for large-scale exploration, development and utilization of these
resources.

The drafters -- whose ranks included many academicians, economists, businessmen, lawyers, politicians and
government officials -- were not unfamiliar with the practices of foreign corporations and multinationals.

Neither were they so naïve as to believe that these entities would provide "assistance" without
conditionalities or some quid pro quo. Definitely, as business persons well know and as a matter of judicial
notice, this matter is not just a question of signing a promissory note or executing a technology transfer
agreement. Foreign corporations usually require that they be given a say in the management, for instance, of
day-to-day operations of the joint venture. They would demand the appointment of their own men as, for
example, operations managers, technical experts, quality control heads, internal auditors or comptrollers.
Furthermore, they would probably require seats on the Board of Directors -- all these to ensure the success
of the enterprise and the repayment of the loans and other financial assistance and to make certain that the
funding and the technology they supply would not go to waste. Ultimately, they would also want to protect
their business reputation and bottom lines.42

In short, the drafters will have to be credited with enough pragmatism and savvy to know that these foreign
entities will not enter into such "agreements involving assistance" without requiring arrangements for the
protection of their investments, gains and benefits.

Thus, by specifying such "agreements involving assistance," the drafters necessarily gave implied assent to
everything that these agreements necessarily entailed; or that could reasonably be deemed necessary to
make them tenable and effective, including management authority with respect to the day-to-day operations
of the enterprise and measures for the protection of the interests of the foreign corporation, PROVIDED
THAT Philippine sovereignty over natural resources and full control over the enterprise undertaking the EDU
activities remain firmly in the State.

Petitioners' Theory Deflated by the

Absence of Closing-Out Rules or Guidelines

Seventh and final point regarding the plain-language approach, one of the practical difficulties that results
from it is the fact that there is nothing by way of transitory provisions that would serve to confirm the theory

174 |C o n s t i t u t i o n a l L a w I P a g e 1
that the omission of the term "service contract" from the 1987 Constitution signaled the demise of service
contracts.

The framers knew at the time they were deliberating that there were various service contracts extant and in
force and effect, including those in the petroleum industry. Many of these service contracts were long-term
(25 years) and had several more years to run. If they had meant to ban service contracts altogether, they
would have had to provide for the termination or pretermination of the existing contracts. Accordingly, they
would have supplied the specifics and the when and how of effecting the extinguishment of these existing
contracts (or at least the mechanics for determining them); and of putting in place the means to address the
just claims of the contractors for compensation for their investments, lost opportunities, and so on, if not for
the recovery thereof.

If the framers had intended to put an end to service contracts, they would have at least left specific
instructions to Congress to deal with these closing-out issues, perhaps by way of general guidelines and a
timeline within which to carry them out. The following are some extant examples of such transitory guidelines
set forth in Article XVIII of our Constitution:

"Section 23. Advertising entities affected by paragraph (2), Section 11 of Article XVI of this
Constitution shall have five years from its ratification to comply on a graduated and proportionate
basis with the minimum Filipino ownership requirement therein.

xxxxxxxxx

"Section 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines
and the United States of America concerning military bases, foreign military bases, troops, or
facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the
Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people
in a national referendum held for that purpose, and recognized as a treaty by the other contracting
State.

"Section 26. The authority to issue sequestration or freeze orders under Proclamation No. 3 dated
March 25, 1986 in relation to the recovery of ill-gotten wealth shall remain operative for not more
than eighteen months after the ratification of this Constitution. However, in the national interest, as
certified by the President, the Congress may extend such period.

A sequestration or freeze order shall be issued only upon showing of a prima facie case. The order
and the list of the sequestered or frozen properties shall forthwith be registered with the proper
court. For orders issued before the ratification of this Constitution, the corresponding judicial action
or proceeding shall be filed within six months from its ratification. For those issued after such
ratification, the judicial action or proceeding shall be commenced within six months from the
issuance thereof.

The sequestration or freeze order is deemed automatically lifted if no judicial action or proceeding
is commenced as herein provided." 43]

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It is inconceivable that the drafters of the Constitution would leave such an important matter -- an expression
of sovereignty as it were -- indefinitely hanging in the air in a formless and ineffective state. Indeed, the
complete absence of even a general framework only serves to further deflate petitioners' theory, like a child's
balloon losing its air.

Under the circumstances, the logical inconsistencies resulting from petitioners' literal and purely verba
legisapproach to paragraph 4 of Section 2 of Article XII compel a resort to other aids to interpretation.

Petitioners' Posture Also Negated

by Ratio Legis Et Anima

Thus, in order to resolve the inconsistencies, incongruities and ambiguities encountered and to supply the
deficiencies of the plain-language approach, there is a need for recourse to the proceedings of the 1986
Constitutional Commission. There is a need for ratio legis et anima.

Service Contracts Not

"Deconstitutionalized"

Pertinent portions of the deliberations of the members of the Constitutional Commission (ConCom)
conclusively show that they discussed agreements involving either technical or financial assistance in the
same breadth as service contracts and used the terms interchangeably. The following exchange between
Commissioner Jamir (sponsor of the provision) and Commissioner Suarez irrefutably proves that the
"agreements involving technical or financial assistance" were none other than service contracts.

THE PRESIDENT. Commissioner Jamir is recognized. We are still on Section 3.

MR. JAMIR. Yes, Madam President. With respect to the second paragraph of Section 3, my
amendment by substitution reads: THE PRESIDENT MAY ENTER INTO AGREEMENTS WITH
FOREIGN-OWNED CORPORATIONS INVOLVING EITHER TECHNICAL OR FINANCIAL
ASSISTANCE FOR LARGE-SCALE EXPLORATION, DEVELOPMENT AND UTILIZATION OF
NATURAL RESOURCES ACCORDING TO THE TERMS AND CONDITIONS PROVIDED BY
LAW.

MR. VILLEGAS. The Committee accepts the amendment. Commissioner Suarez will give the
background.

MR. JAMIR. Thank you.

THE PRESIDENT. Commissioner Suarez is recognized.

MR. SUAREZ. Thank you, Madam President.

Will Commissioner Jamir answer a few clarificatory questions?

176 |C o n s t i t u t i o n a l L a w I P a g e 1
 MR. JAMIR. Yes, Madam President.

MR. SUAREZ. This particular portion of the section has reference to what was popularly known
before as service contracts, among other things, is that correct?

MR. JAMIR. Yes, Madam President.

MR. SUAREZ. As it is formulated, the President may enter into service contracts but subject to
the guidelines that may be promulgated by Congress?

MR. JAMIR. That is correct.

MR. SUAREZ. Therefore, that aspect of negotiation and consummation will fall on the President,
not upon Congress?

MR. JAMIR. That is also correct, Madam President.

MR. SUAREZ. Except that all of these contracts, service or otherwise, must be made strictly in
accordance with guidelines prescribed by Congress?

MR. JAMIR. That is also correct.

MR. SUAREZ. And the Gentleman is thinking in terms of a law that uniformly covers situations of
the same nature?

MR. JAMIR. That is 100 percent correct.

MR. SUAREZ. I thank the Commissioner.

MR. JAMIR. Thank you very much.44

The following exchange leaves no doubt that the commissioners knew exactly what they were dealing with:
service contracts.

THE PRESIDENT. Commissioner Gascon is recognized.

MR. GASCON. Commissioner Jamir had proposed an amendment with regard to special service
contractswhich was accepted by the Committee. Since the Committee has accepted it, I would
like to ask some questions.

THE PRESIDENT. Commissioner Gascon may proceed.

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MR. GASCON. As it is proposed now, such service contracts will be entered into by the President
with the guidelines of a general law on service contract to be enacted by Congress. Is that
correct?

MR. VILLEGAS. The Commissioner is right, Madam President.

MR. GASCON. According to the original proposal, if the President were to enter into a particular
agreement, he would need the concurrence of Congress. Now that it has been changed by the
proposal of Commissioner Jamir in that Congress will set the general law to which the President
shall comply, the President will, therefore, not need the concurrence of Congress every time he
enters into service contracts. Is that correct?

MR. VILLEGAS. That is right.

MR. GASCON. The proposed amendment of Commissioner Jamir is in indirect contrast to my

proposed amendment, so I would like to object and present my proposed amendment to the body.

xxxxxxxxx

MR. GASCON. Yes, it will be up to the body.

I feel that the general law to be set by Congress as regard service contract agreements which
the President will enter into might be too general or since we do not know the content yet of such a
law, it might be that certain agreements will be detrimental to the interest of the Filipinos. This is in
direct contrast to my proposal which provides that there be effective constraints in the
implementation of service contracts.

So instead of a general law to be passed by Congress to serve as a guideline to the President

when entering into service contract agreements, I propose that every service contract entered
into by the President would need the concurrence of Congress, so as to assure the Filipinos of
their interests with regard to the issue in Section 3 on all lands of the public domain. My alternative
amendment, which we will discuss later, reads: THAT THE PRESIDENT SHALL ENTER INTO
SUCH AGREEMENTS ONLY WITH THE CONCURRENCE OF TWO-THIRDS VOTE OF ALL THE
MEMBERS OF CONGRESS SITTING SEPARATELY.

xxxxxxxxx

MR. BENGZON. The reason we made that shift is that we realized the original proposal could
breed corruption. By the way, this is not just confined to service contracts but also to financial
assistance. If we are going to make every single contract subject to the concurrence of Congress
– which, according to the Commissioner's amendment is the concurrence of two-thirds of Congress
voting separately – then (1) there is a very great chance that each contract will be different from
another; and (2) there is a great temptation that it would breed corruption because of the great
lobbying that is going to happen. And we do not want to subject our legislature to that.

178 |C o n s t i t u t i o n a l L a w I P a g e 1
Now, to answer the Commissioner's apprehension, by "general law," we do not mean statements
of motherhood. Congress can build all the restrictions that it wishes into that general law so that
every contract entered into by the President under that specific area will have to be uniform. The
President has no choice but to follow all the guidelines that will be provided by law.

MR. GASCON. But my basic problem is that we do not know as of yet the contents of such a
general law as to how much constraints there will be in it. And to my mind, although the
Committee's contention that the regular concurrence from Congress would subject Congress to
extensive lobbying, I think that is a risk we will have to take since Congress is a body of
representatives of the people whose membership will be changing regularly as there will be
changing circumstances every time certain agreements are made. It would be best then to keep in
tab and attuned to the interest of the Filipino people, whenever the President enters into any
agreement with regard to such an important matter as technical or financial assistance for
large-scale exploration, development and utilization of natural resources or service
contracts, the people's elected representatives should be on top of it.

xxxxxxxxx

MR. OPLE. Madam President, we do not need to suspend the session. If Commissioner Gascon
needs a few minutes, I can fill up the remaining time while he completes his proposed amendment.
I just wanted to ask Commissioner Jamir whether he would entertain a minor amendment to his
amendment, and it reads as follows: THE PRESIDENT SHALL SUBSEQUENTLY NOTIFY
CONGRESS OF EVERY SERVICE CONTRACT ENTERED INTO IN ACCORDANCE WITH THE
GENERAL LAW. I think the reason is, if I may state it briefly, as Commissioner Bengzon said,
Congress can always change the general law later on to conform to new perceptions of standards
that should be built into service contracts. But the only way Congress can do this is if there were
a notification requirement from the Office of the President that such service contracts had been
entered into, subject then to the scrutiny of the Members of Congress. This pertains to a situation
where the service contracts are already entered into, and all that this amendment seeks is the
reporting requirement from the Office of the President. Will Commissioner Jamir entertain that?

MR. JAMIR. I will gladly do so, if it is still within my power.

MR. VILLEGAS. Yes, the Committee accepts the amendment.

xxxxxxxxx

SR. TAN. Madam President, may I ask a question?

THE PRESIDENT. Commissioner Tan is recognized.

SR. TAN. Am I correct in thinking that the only difference between these future service
contracts and the past service contracts under Mr. Marcos is the general law to be enacted by
the legislature and the notification of Congress by the President? That is the only difference, is it
not?

179 |C o n s t i t u t i o n a l L a w I P a g e 1
 MR. VILLEGAS. That is right.

SR. TAN. So those are the safeguards.

MR. VILLEGAS. Yes. There was no law at all governing service contracts before.

SR. TAN. Thank you, Madam President.45

More Than Mere Financial

and Technical Assistance
Entailed by the Agreements

The clear words of Commissioner Jose N. Nolledo quoted below explicitly and eloquently demonstrate that
the drafters knew that the agreements with foreign corporations were going to entail not mere technical or
financial assistance but, rather, foreign investment in and management of an enterprise involved in large-
scale exploration, development and utilization of minerals, petroleum, and other mineral oils.

THE PRESIDENT. Commissioner Nolledo is recognized.

MR. NOLLEDO. Madam President, I have the permission of the Acting Floor Leader to speak for
only two minutes in favor of the amendment of Commissioner Gascon.

THE PRESIDENT. Commissioner Nolledo may proceed.

MR. NOLLEDO. With due respect to the members of the Committee and Commissioner Jamir, I
am in favor of the objection of Commissioner Gascon.

Madam President, I was one of those who refused to sign the 1973 Constitution, and one
of the reasons is that there were many provisions in the Transitory Provisions therein that
favored aliens. I was shocked when I read a provision authorizing service
contracts while we, in this Constitutional Commission, provided for Filipino control of the
economy. We are, therefore, providing for exceptional instances where aliens may
circumvent Filipino control of our economy. And one way of circumventing the rule in
favor of Filipino control of the economy is to recognize service contracts.

As far as I am concerned, if I should have my own way, I am for the complete deletion of
this provision. However, we are presenting a compromise in the sense that we are
requiring a two-thirds vote of all the Members of Congress as a safeguard. I think we
should not mistrust the future Members of Congress by saying that the purpose of this
provision is to avoid corruption. We cannot claim that they are less patriotic than we are. I
think the Members of this Commission should know that entering into service
contracts is an exception to the rule on protection of natural resources for the interest of
the nation, and therefore, being an exception it should be subject, whenever possible, to
stringent rules. It seems to me that we are liberalizing the rules in favor of aliens.

180 |C o n s t i t u t i o n a l L a w I P a g e 1
 I say these things with a heavy heart, Madam President. I do not claim to be a nationalist,
but I love my country. Although we need investments, we must adopt
safeguards that are truly reflective of the sentiments of the people and not mere
cosmetic safeguards as they now appear in the Jamir amendment. (Applause)

Thank you, Madam President.46

Another excerpt, featuring then Commissioner (now Chief Justice) Hilario G. Davide Jr., indicates the
limitations of the scope of such service contracts -- they are valid only in regard to minerals, petroleum and
other mineral oils, not to all natural resources.

THE PRESIDENT. Commissioner Davide is recognized.

MR. DAVIDE. Thank you, Madam President. This is an amendment to the Jamir amendment and
also to the Ople amendment. I propose to delete "NATURAL RESOURCES" and substitute it with
the following: MINERALS, PETROLEUM AND OTHER MINERAL OILS. On the Ople amendment, I
propose to add: THE NOTIFICATION TO CONGRESS SHALL BE WITHIN THIRTY DAYS FROM
THE EXECUTION OF THE SERVICE CONTRACT.

THE PRESIDENT. What does the Committee say with respect to the first amendment in lieu of
"NATURAL RESOURCES"?

MR. VILLEGAS. Could Commissioner Davide explain that?

MR. DAVIDE. Madam President, with the use of "NATURAL RESOURCES" here, it would
necessarily include all lands of the public domain, our marine resources, forests, parks and so on.
So we would like to limit the scope of these service contracts to those areas really where these
may be needed, the exploitation, development and exploration of minerals, petroleum and other
mineral oils. And so, we believe that we should really, if we want to grant service contracts at all,
limit the same to only those particular areas where Filipino capital may not be sufficient, and
not to all natural resources.

MR. SUAREZ. Just a point of clarification again, Madam President. When the Commissioner made
those enumerations and specifications, I suppose he deliberately did not include "agricultural
land"?

MR. DAVIDE. That is precisely the reason we have to enumerate what these resources are into
which service contracts may enter. So, beyond the reach of any service contract will be lands of
the public domain, timberlands, forests, marine resources, fauna and flora, wildlife and national
parks.47

After the Jamir amendment was voted upon and approved by a vote of 21 to 10 with 2 abstentions,
Commissioner Davide made the following statement, which is very relevant to our quest:

181 |C o n s t i t u t i o n a l L a w I P a g e 1
 THE PRESIDENT. Commissioner Davide is recognized.

MR. DAVIDE. I am very glad that Commissioner Padilla emphasized minerals, petroleum and
mineral oils. The Commission has just approved the possible foreign entry into the development,
exploration and utilization of these minerals, petroleum and other mineral oils by virtue of the Jamir
amendment. I voted in favor of the Jamir amendment because it will eventually give way to vesting
in exclusively Filipino citizens and corporations wholly owned by Filipino citizens the right to utilize
the other natural resources. This means that as a matter of policy, natural resources should be
utilized and exploited only by Filipino citizens or corporations wholly owned by such citizens. But by
virtue of the Jamir amendment, since we feel that Filipino capital may not be enough for the
development and utilization of minerals, petroleum and other mineral oils, the President can enter
into service contracts with foreign corporations precisely for the development and utilization of
such resources. And so, there is nothing to fear that we will stagnate in the development of
minerals, petroleum and mineral oils because we now allow service contracts. x x x."48

The foregoing are mere fragments of the framers' lengthy discussions of the provision dealing
with agreements x x x involving either technical or financial assistance, which ultimately became paragraph 4
of Section 2 of Article XII of the Constitution. Beyond any doubt, the members of the ConCom were actually
debating about the martial-law-era service contracts for which they were crafting appropriate safeguards.

In the voting that led to the approval of Article XII by the ConCom, the explanations given by Commissioners
Gascon, Garcia and Tadeo indicated that they had voted to reject this provision on account of their
objections to the "constitutionalization" of the "service contract" concept.

Mr. Gascon said, "I felt that if we would constitutionalize any provision on service contracts, this should
always be with the concurrence of Congress and not guided only by a general law to be promulgated by
Congress."49 Mr. Garcia explained, "Service contracts are given constitutional legitimization in Sec. 3, even
when they have been proven to be inimical to the interests of the nation, providing, as they do, the legal
loophole for the exploitation of our natural resources for the benefit of foreign interests." 50 Likewise, Mr.
Tadeo cited inter alia the fact that service contracts continued to subsist, enabling foreign interests to benefit
from our natural resources.51 It was hardly likely that these gentlemen would have objected so
strenuously, had the provision called for mere technical or financial assistance and nothing more.

The deliberations of the ConCom and some commissioners' explanation of their votes leave no room for
doubt that the service contract concept precisely underpinned the commissioners' understanding of the
"agreements involving either technical or financial assistance."

Summation of the
Concom Deliberations

At this point, we sum up the matters established, based on a careful reading of the ConCom deliberations, as
follows:

· In their deliberations on what was to become paragraph 4, the framers used the term service
contracts in referring to agreements x x x involving either technical or financial assistance.

182 |C o n s t i t u t i o n a l L a w I P a g e 1
 · They spoke of service contracts as the concept was understood in the 1973 Constitution.

· It was obvious from their discussions that they were not about to ban or eradicate service
contracts.

· Instead, they were plainly crafting provisions to put in place safeguards that would eliminate or
minimize the abuses prevalent during the marital law regime. In brief, they were going to permit
service contracts with foreign corporations as contractors, but with safety measures to prevent
abuses, as an exception to the general norm established in the first paragraph of Section 2 of
Article XII. This provision reserves or limits to Filipino citizens -- and corporations at least 60
percent of which is owned by such citizens -- the exploration, development and utilization of natural
resources.

· This provision was prompted by the perceived insufficiency of Filipino capital and the felt need for
foreign investments in the EDU of minerals and petroleum resources.

· The framers for the most part debated about the sort of safeguards that would be considered
adequate and reasonable. But some of them, having more "radical" leanings, wanted to ban
service contracts altogether; for them, the provision would permit aliens to exploit and benefit from
the nation's natural resources, which they felt should be reserved only for Filipinos.

· In the explanation of their votes, the individual commissioners were heard by the entire body.
They sounded off their individual opinions, openly enunciated their philosophies, and supported or
attacked the provisions with fervor. Everyone's viewpoint was heard.

· In the final voting, the Article on the National Economy and Patrimony -- including paragraph 4
allowing service contracts with foreign corporations as an exception to the general norm in
paragraph 1 of Section 2 of the same article -- was resoundingly approved by a vote of 32 to 7,
with 2 abstentions.

Agreements Involving Technical

or Financial Assistance Are

Service Contracts With Safeguards

From the foregoing, we are impelled to conclude that the phrase agreements involving either technical or
financial assistance, referred to in paragraph 4, are in fact service contracts. But unlike those of the 1973
variety, the new ones are between foreign corporations acting as contractors on the one hand; and on the
other, the government as principal or "owner" of the works. In the new service contracts, the foreign
contractors provide capital, technology and technical know-how, and managerial expertise in the creation
and operation of large-scale mining/extractive enterprises; and the government, through its agencies (DENR,
MGB), actively exercises control and supervision over the entire operation.

183 |C o n s t i t u t i o n a l L a w I P a g e 1
Such service contracts may be entered into only with respect to minerals, petroleum and other mineral oils.
The grant thereof is subject to several safeguards, among which are these requirements:

(1) The service contract shall be crafted in accordance with a general law that will set standard or
uniform terms, conditions and requirements, presumably to attain a certain uniformity in provisions
and avoid the possible insertion of terms disadvantageous to the country.

(2) The President shall be the signatory for the government because, supposedly before an
agreement is presented to the President for signature, it will have been vetted several times over at
different levels to ensure that it conforms to law and can withstand public scrutiny.

(3) Within thirty days of the executed agreement, the President shall report it to Congress to give
that branch of government an opportunity to look over the agreement and interpose timely
objections, if any.

Use of the Record of the

ConCom to Ascertain Intent

At this juncture, we shall address, rather than gloss over, the use of the "framers' intent" approach, and the
criticism hurled by petitioners who quote a ruling of this Court:

"While it is permissible in this jurisdiction to consult the debates and proceedings of the
constitutional convention in order to arrive at the reason and purpose of the resulting Constitution,
resort thereto may be had only when other guides fail as said proceedings are powerless to vary
the terms of the Constitution when the meaning is clear. Debates in the constitutional convention
'are of value as showing the views of the individual members, and as indicating the reason for their
votes, but they give us no light as to the views of the large majority who did not talk, much less the
mass of our fellow citizens whose votes at the polls gave that instrument the force of fundamental
law. We think it safer to construe the constitution from what appears upon its face.' The proper
interpretation therefore depends more on how it was understood by the people adopting it than in
the framers' understanding thereof."52

The notion that the deliberations reflect only the views of those members who spoke out and not the views of
the majority who remained silent should be clarified. We must never forget that those who spoke out were
heard by those who remained silent and did not react. If the latter were silent because they happened not to
be present at the time, they are presumed to have read the minutes and kept abreast of the deliberations. By
remaining silent, they are deemed to have signified their assent to and/or conformity with at least some of the
views propounded or their lack of objections thereto. It was incumbent upon them, as representatives of the
entire Filipino people, to follow the deliberations closely and to speak their minds on the matter if they did not
see eye to eye with the proponents of the draft provisions.

In any event, each and every one of the commissioners had the opportunity to speak out and to vote on the
matter. Moreover, the individual explanations of votes are on record, and they show where each delegate

184 |C o n s t i t u t i o n a l L a w I P a g e 1
stood on the issues. In sum, we cannot completely denigrate the value or usefulness of the record of
the ConCom, simply because certain members chose not to speak out.

It is contended that the deliberations therein did not necessarily reflect the thinking of the voting population
that participated in the referendum and ratified the Constitution. Verily, whether we like it or not, it is a bit too
much to assume that every one of those who voted to ratify the proposed Charter did so only after carefully
reading and mulling over it, provision by provision.

Likewise, it appears rather extravagant to assume that every one of those who did in fact bother to read the
draft Charter actually understood the import of its provisions, much less analyzed it vis-à-vis the previous
Constitutions. We believe that in reality, a good percentage of those who voted in favor of it did so more out
of faith and trust. For them, it was the product of the hard work and careful deliberation of a group of
intelligent, dedicated and trustworthy men and women of integrity and conviction, whose love of country and
fidelity to duty could not be questioned.

In short, a large proportion of the voters voted "yes" because the drafters, or a majority of them, endorsed the
proposed Constitution. What this fact translates to is the inescapable conclusion that many of the voters in
the referendum did not form their own isolated judgment about the draft Charter, much less about particular
provisions therein. They only relied or fell back and acted upon the favorable endorsement or
recommendation of the framers as a group. In other words, by voting yes, they may be deemed to have
signified their voluntary adoption of the understanding and interpretation of the delegates with respect to the
proposed Charter and its particular provisions. "If it's good enough for them, it's good enough for me;" or, in
many instances, "If it's good enough for President Cory Aquino, it's good enough for me."

And even for those who voted based on their own individual assessment of the proposed Charter, there is no
evidence available to indicate that their assessment or understanding of its provisions was in fact different
from that of the drafters. This unwritten assumption seems to be petitioners' as well. For all we know, this
segment of voters must have read and understood the provisions of the Constitution in the same way the
framers had, an assumption that would account for the favorable votes.

Fundamentally speaking, in the process of rewriting the Charter, the members of the ConCom as a group
were supposed to represent the entire Filipino people. Thus, we cannot but regard their views as being very
much indicative of the thinking of the people with respect to the matters deliberated upon and to the Charter
as a whole.

It is therefore reasonable and unavoidable to make the following conclusion, based on the above
arguments. As written by the framers and ratified and adopted by the people, the Constitution allows
the continued use of service contracts with foreign corporations -- as contractors who would invest
in and operate and manage extractive enterprises, subject to the full control and supervision of the
State -- sans the abuses of the past regime. The purpose is clear: to develop and utilize our mineral,
petroleum and other resources on a large scale for the immediate and tangible benefit of the Filipino
people.

In view of the foregoing discussion, we should reverse the Decision of January 27, 2004, and in fact now
hold a view different from that of the Decision, which had these findings: (a) paragraph 4 of Section 2 of

185 |C o n s t i t u t i o n a l L a w I P a g e 1
Article XII limits foreign involvement in the local mining industry to agreements strictly for either financial or
technical assistance only; (b) the same paragraph precludes agreements that grant to foreign corporations
the management of local mining operations, as such agreements are purportedly in the nature of service
contracts as these were understood under the 1973 Constitution; (c) these service contracts were
supposedly "de-constitutionalized" and proscribed by the omission of the term service contracts from the
1987 Constitution; (d) since the WMCP FTAA contains provisions permitting the foreign contractor to
manage the concern, the said FTAA is invalid for being a prohibited service contract; and (e) provisions of
RA 7942 and DAO 96-40, which likewise grant managerial authority to the foreign contractor, are also invalid
and unconstitutional.

Ultimate Test: State's "Control"

Determinative of Constitutionality

But we are not yet at the end of our quest. Far from it. It seems that we are confronted with a possible
collision of constitutional provisions. On the one hand, paragraph 1 of Section 2 of Article XII explicitly
mandates the State to exercise "full control and supervision" over the exploration, development and
utilization of natural resources. On the other hand, paragraph 4 permits safeguarded service contracts with
foreign contractors. Normally, pursuant thereto, the contractors exercise management prerogatives over the
mining operations and the enterprise as a whole. There is thus a legitimate ground to be concerned that
either the State's full control and supervision may rule out any exercise of management authority by the
foreign contractor; or, the other way around, allowing the foreign contractor full management prerogatives
may ultimately negate the State's full control and supervision.

Ut Magis Valeat
Quam Pereat

Under the third principle of constitutional construction laid down in Francisco -- ut magis valeat quam pereat -
- every part of the Constitution is to be given effect, and the Constitution is to be read and understood as a
harmonious whole. Thus, "full control and supervision" by the State must be understood as one that does not
preclude the legitimate exercise of management prerogatives by the foreign contractor. Before any further
discussion, we must stress the primacy and supremacy of the principle of sovereignty and State control and
supervision over all aspects of exploration, development and utilization of the country's natural resources, as
mandated in the first paragraph of Section 2 of Article XII.

But in the next breadth we have to point out that "full control and supervision" cannot be taken literally to
mean that the State controls and supervises everything involved, down to the minutest details, and makes all
decisions required in the mining operations. This strained concept of control and supervision over the mining
enterprise would render impossible the legitimate exercise by the contractors of a reasonable degree of
management prerogative and authority necessary and indispensable to their proper functioning.

For one thing, such an interpretation would discourage foreign entry into large-scale exploration,
development and utilization activities; and result in the unmitigated stagnation of this sector, to the detriment
of our nation's development. This scenario renders paragraph 4 inoperative and useless. And as
respondents have correctly pointed out, the government does not have to micro-manage the mining

186 |C o n s t i t u t i o n a l L a w I P a g e 1
operations and dip its hands into the day-to-day affairs of the enterprise in order for it to be considered as
having full control and supervision.

The concept of control53 adopted in Section 2 of Article XII must be taken to mean less than dictatorial, all-
encompassing control; but nevertheless sufficient to give the State the power to direct, restrain, regulate and
govern the affairs of the extractive enterprises. Control by the State may be on a macro level, through the
establishment of policies, guidelines, regulations, industry standards and similar measures that would enable
the government to control the conduct of affairs in various enterprises and restrain activities deemed not
desirable or beneficial.

The end in view is ensuring that these enterprises contribute to the economic development and general
welfare of the country, conserve the environment, and uplift the well-being of the affected local communities.
Such a concept of control would be compatible with permitting the foreign contractor sufficient and
reasonable management authority over the enterprise it invested in, in order to ensure that it is operating
efficiently and profitably, to protect its investments and to enable it to succeed.

The question to be answered, then, is whether RA 7942 and its Implementing Rules enable the
government to exercise that degree of control sufficient to direct and regulate the conduct of affairs
of individual enterprises and restrain undesirable activities.

On the resolution of these questions will depend the validity and constitutionality of certain provisions of the
Philippine Mining Act of 1995 (RA 7942) and its Implementing Rules and Regulations (DAO 96-40), as well
as the WMCP FTAA.

Indeed, petitioners charge54 that RA 7942, as well as its Implementing Rules and Regulations, makes it
possible for FTAA contracts to cede full control and management of mining enterprises over to fully foreign-
owned corporations, with the result that the State is allegedly reduced to a passive regulator dependent on
submitted plans and reports, with weak review and audit powers. The State does not supposedly act as the
owner of the natural resources for and on behalf of the Filipino people; it practically has little effective say in
the decisions made by the enterprise. Petitioners then conclude that the law, the implementing regulations,
and the WMCP FTAA cede "beneficial ownership" of the mineral resources to the foreign contractor.

A careful scrutiny of the provisions of RA 7942 and its Implementing Rules belies petitioners' claims.
Paraphrasing the Constitution, Section 4 of the statute clearly affirms the State's control thus:

"Sec. 4. Ownership of Mineral Resources. – Mineral resources are owned by the State and the
exploration, development, utilization and processing thereof shall be under its full control and
supervision. The State may directly undertake such activities or it may enter into mineral
agreements with contractors.

"The State shall recognize and protect the rights of the indigenous cultural communities to their
ancestral lands as provided for by the Constitution."

The aforequoted provision is substantively reiterated in Section 2 of DAO 96-40 as follows:

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 "Sec. 2. Declaration of Policy. All mineral resources in public and private lands within the territory
and exclusive economic zone of the Republic of the Philippines are owned by the State. It shall be
the responsibility of the State to promote their rational exploration, development, utilization and
conservation through the combined efforts of the Government and private sector in order to
enhance national growth in a way that effectively safeguards the environment and protects the
rights of affected communities."

Sufficient Control Over Mining

Operations Vested in the State
by RA 7942 and DAO 96-40

RA 7942 provides for the State's control and supervision over mining operations. The following provisions
thereof establish the mechanism of inspection and visitorial rights over mining operations and institute
reportorial requirements in this manner:

1. Sec. 8 which provides for the DENR's power of over-all supervision and periodic review for "the
conservation, management, development and proper use of the State's mineral resources";

2. Sec. 9 which authorizes the Mines and Geosciences Bureau (MGB) under the DENR to exercise
"direct charge in the administration and disposition of mineral resources", and empowers the MGB
to "monitor the compliance by the contractor of the terms and conditions of the mineral
agreements", "confiscate surety and performance bonds", and deputize whenever necessary any
member or unit of the Phil. National Police, barangay, duly registered non-governmental
organization (NGO) or any qualified person to police mining activities;

3. Sec. 66 which vests in the Regional Director "exclusive jurisdiction over safety inspections of all
installations, whether surface or underground", utilized in mining operations.

4. Sec. 35, which incorporates into all FTAAs the following terms, conditions and warranties:

"(g) Mining operations shall be conducted in accordance with the provisions of the Act
and its IRR.

"(h) Work programs and minimum expenditures commitments.

xxxxxxxxx

"(k) Requiring proponent to effectively use appropriate anti-pollution technology and

facilities to protect the environment and restore or rehabilitate mined-out areas.

"(l) The contractors shall furnish the Government records of geologic, accounting and
other relevant data for its mining operation, and that books of accounts and records shall
be open for inspection by the government. x x x.

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 "(m) Requiring the proponent to dispose of the minerals at the highest price and more
advantageous terms and conditions.

"(n) x x x x x x x x x

"(o) Such other terms and conditions consistent with the Constitution and with this Act as
the Secretary may deem to be for the best interest of the State and the welfare of the
Filipino people."

The foregoing provisions of Section 35 of RA 7942 are also reflected and implemented in
Section 56 (g), (h), (l), (m) and (n) of the Implementing Rules, DAO 96-40.

Moreover, RA 7942 and DAO 96-40 also provide various stipulations confirming the government's control
over mining enterprises:

· The contractor is to relinquish to the government those portions of the contract area not needed
for mining operations and not covered by any declaration of mining feasibility (Section 35-e, RA
7942; Section 60, DAO 96-40).

· The contractor must comply with the provisions pertaining to mine safety, health and
environmental protection (Chapter XI, RA 7942; Chapters XV and XVI, DAO 96-40).

· For violation of any of its terms and conditions, government may cancel an FTAA. (Chapter XVII,
RA 7942; Chapter XXIV, DAO 96-40).

· An FTAA contractor is obliged to open its books of accounts and records for inspection by the
government (Section 56-m, DAO 96-40).

· An FTAA contractor has to dispose of the minerals and by-products at the highest market price
and register with the MGB a copy of the sales agreement (Section 56-n, DAO 96-40).

· MGB is mandated to monitor the contractor's compliance with the terms and conditions of the
FTAA; and to deputize, when necessary, any member or unit of the Philippine National Police, the
barangay or a DENR-accredited nongovernmental organization to police mining activities (Section
7-d and -f, DAO 96-40).

· An FTAA cannot be transferred or assigned without prior approval by the President (Section 40,
RA 7942; Section 66, DAO 96-40).

· A mining project under an FTAA cannot proceed to the construction/development/utilization

stage, unless its Declaration of Mining Project Feasibility has been approved by government
(Section 24, RA 7942).

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· The Declaration of Mining Project Feasibility filed by the contractor cannot be approved without
submission of the following documents:

1. Approved mining project feasibility study (Section 53-d, DAO 96-40)

2. Approved three-year work program (Section 53-a-4, DAO 96-40)

3. Environmental compliance certificate (Section 70, RA 7942)

4. Approved environmental protection and enhancement program (Section 69, RA 7942)

5. Approval by the Sangguniang Panlalawigan/Bayan/Barangay (Section 70, RA 7942;

Section 27, RA 7160)

6. Free and prior informed consent by the indigenous peoples concerned, including
payment of royalties through a Memorandum of Agreement (Section 16, RA 7942;
Section 59, RA 8371)

· The FTAA contractor is obliged to assist in the development of its mining community, promotion
of the general welfare of its inhabitants, and development of science and mining technology
(Section 57, RA 7942).

· The FTAA contractor is obliged to submit reports (on quarterly, semi-annual or annual basis as
the case may be; per Section 270, DAO 96-40), pertaining to the following:

1. Exploration

2. Drilling

3. Mineral resources and reserves

4. Energy consumption

5. Production

6. Sales and marketing

7. Employment

8. Payment of taxes, royalties, fees and other Government Shares

9. Mine safety, health and environment

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 10. Land use

11. Social development

12. Explosives consumption

· An FTAA pertaining to areas within government reservations cannot be granted without a written
clearance from the government agencies concerned (Section 19, RA 7942; Section 54, DAO 96-
40).

· An FTAA contractor is required to post a financial guarantee bond in favor of the government in
an amount equivalent to its expenditures obligations for any particular year. This requirement is
apart from the representations and warranties of the contractor that it has access to all the
financing, managerial and technical expertise and technology necessary to carry out the objectives
of the FTAA (Section 35-b, -e, and -f, RA 7942).

· Other reports to be submitted by the contractor, as required under DAO 96-40, are as follows: an
environmental report on the rehabilitation of the mined-out area and/or mine waste/tailing covered
area, and anti-pollution measures undertaken (Section 35-a-2); annual reports of the mining
operations and records of geologic accounting (Section 56-m); annual progress reports and final
report of exploration activities (Section 56-2).

· Other programs required to be submitted by the contractor, pursuant to DAO 96-40, are the
following: a safety and health program (Section 144); an environmental work program (Section
168); an annual environmental protection and enhancement program (Section 171).

The foregoing gamut of requirements, regulations, restrictions and limitations imposed upon the FTAA
contractor by the statute and regulations easily overturns petitioners' contention. The setup under RA 7942
and DAO 96-40 hardly relegates the State to the role of a "passive regulator" dependent on submitted plans
and reports. On the contrary, the government agencies concerned are empowered to approve or disapprove
-- hence, to influence, direct and change -- the various work programs and the corresponding minimum
expenditure commitments for each of the exploration, development and utilization phases of the mining
enterprise.

Once these plans and reports are approved, the contractor is bound to comply with its commitments therein.
Figures for mineral production and sales are regularly monitored and subjected to government review, in
order to ensure that the products and by-products are disposed of at the best prices possible; even copies of
sales agreements have to be submitted to and registered with MGB. And the contractor is mandated to open
its books of accounts and records for scrutiny, so as to enable the State to determine if the government
share has been fully paid.

The State may likewise compel the contractor's compliance with mandatory requirements on mine safety,
health and environmental protection, and the use of anti-pollution technology and facilities. Moreover, the
contractor is also obligated to assist in the development of the mining community and to pay royalties to the
indigenous peoples concerned.

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Cancellation of the FTAA may be the penalty for violation of any of its terms and conditions and/or
noncompliance with statutes or regulations. This general, all-around, multipurpose sanction is no trifling
matter, especially to a contractor who may have yet to recover the tens or hundreds of millions of dollars
sunk into a mining project.

Overall, considering the provisions of the statute and the regulations just discussed, we believe that the State
definitely possesses the means by which it can have the ultimate word in the operation of the enterprise, set
directions and objectives, and detect deviations and noncompliance by the contractor; likewise, it has the
capability to enforce compliance and to impose sanctions, should the occasion therefor arise.

In other words, the FTAA contractor is not free to do whatever it pleases and get away with it; on the
contrary, it will have to follow the government line if it wants to stay in the enterprise. Ineluctably
then, RA 7942 and DAO 96-40 vest in the government more than a sufficient degree of control and
supervision over the conduct of mining operations.

Section 3(aq) of RA 7942

Not Unconstitutional

An objection has been expressed that Section 3(aq)55 of RA 7942 -- which allows a foreign contractor to
apply for and hold an exploration permit -- is unconstitutional. The reasoning is that Section 2 of Article XII of
the Constitution does not allow foreign-owned corporations to undertake mining operations directly. They
may act only as contractors of the State under an FTAA; and the State, as the party directly undertaking
exploitation of its natural resources, must hold through the government all exploration permits and similar
authorizations. Hence, Section 3(aq), in permitting foreign-owned corporations to hold exploration permits, is
unconstitutional.

The objection, however, is not well-founded. While the Constitution mandates the State to exercise full
control and supervision over the exploitation of mineral resources, nowhere does it require the government to
hold all exploration permits and similar authorizations. In fact, there is no prohibition at all against foreign or
local corporations or contractors holding exploration permits. The reason is not hard to see.

Pursuant to Section 20 of RA 7942, an exploration permit merely grants to a qualified person the right
to conduct exploration for all minerals in specified areas. Such a permit does not amount to an authorization
to extract and carry off the mineral resources that may be discovered. This phase involves nothing but
expenditures for exploring the contract area and locating the mineral bodies. As no extraction is involved,
there are no revenues or incomes to speak of. In short, the exploration permit is an authorization for the
grantee to spend its own funds on exploration programs that are pre-approved by the government, without
any right to recover anything should no minerals in commercial quantities be discovered. The State risks
nothing and loses nothing by granting these permits to local or foreign firms; in fact, it stands to gain in the
form of data generated by the exploration activities.

Pursuant to Section 24 of RA 7942, an exploration permit grantee who determines the commercial viability of
a mining area may, within the term of the permit, file with the MGB a declaration of mining project feasibility
accompanied by a work program for development. The approval of the mining project feasibility and

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compliance with other requirements of RA 7942 vests in the grantee the exclusive right to an MPSA or any
other mineral agreement, or to an FTAA.

Thus, the permit grantee may apply for an MPSA, a joint venture agreement, a co-production agreement, or
an FTAA over the permit area, and the application shall be approved if the permit grantee meets the
necessary qualifications and the terms and conditions of any such agreement. Therefore, the contractor will
be in a position to extract minerals and earn revenues only when the MPSA or another mineral agreement, or
an FTAA, is granted. At that point, the contractor's rights and obligations will be covered by an FTAA or a
mineral agreement.

But prior to the issuance of such FTAA or mineral agreement, the exploration permit grantee (or prospective
contractor) cannot yet be deemed to have entered into any contract or agreement with the State, and the
grantee would definitely need to have some document or instrument as evidence of its right to conduct
exploration works within the specified area. This need is met by the exploration permit issued pursuant to
Sections 3(aq), 20 and 23 of RA 7942.

In brief, the exploration permit serves a practical and legitimate purpose in that it protects the
interests and preserves the rights of the exploration permit grantee (the would-be contractor) --
foreign or local -- during the period of time that it is spending heavily on exploration works, without
yet being able to earn revenues to recoup any of its investments and expenditures. Minus this permit
and the protection it affords, the exploration works and expenditures may end up benefiting only claim-
jumpers. Such a possibility tends to discourage investors and contractors. Thus, Section 3(aq) of RA 7942
may not be deemed unconstitutional.

The Terms of the WMCP FTAA

A Deference to State Control

A perusal of the WMCP FTAA also reveals a slew of stipulations providing for State control and supervision:

1. The contractor is obligated to account for the value of production and sale of minerals (Clause
1.4).

2. The contractor's work program, activities and budgets must be approved by/on behalf of the
State (Clause 2.1).

3. The DENR secretary has the power to extend the exploration period (Clause 3.2-a).

4. Approval by the State is necessary for incorporating lands into the FTAA contract area (Clause
4.3-c).

5. The Bureau of Forest Development is vested with discretion in regard to approving the inclusion
of forest reserves as part of the FTAA contract area (Clause 4.5).

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6. The contractor is obliged to relinquish periodically parts of the contract area not needed for
exploration and development (Clause 4.6).

7. A Declaration of Mining Feasibility must be submitted for approval by the State (Clause 4.6-b).

8. The contractor is obligated to report to the State its exploration activities (Clause 4.9).

9. The contractor is required to obtain State approval of its work programs for the succeeding two-
year periods, containing the proposed work activities and expenditures budget related to
exploration (Clause 5.1).

10. The contractor is required to obtain State approval for its proposed expenditures for exploration
activities (Clause 5.2).

11. The contractor is required to submit an annual report on geological, geophysical, geochemical
and other information relating to its explorations within the FTAA area (Clause 5.3-a).

12. The contractor is to submit within six months after expiration of exploration period a final report
on all its findings in the contract area (Clause 5.3-b).

13. The contractor, after conducting feasibility studies, shall submit a declaration of mining
feasibility, along with a description of the area to be developed and mined, a description of the
proposed mining operations and the technology to be employed, and a proposed work program for
the development phase, for approval by the DENR secretary (Clause 5.4).

14. The contractor is obliged to complete the development of the mine, including construction of
the production facilities, within the period stated in the approved work program (Clause 6.1).

15. The contractor is obligated to submit for approval of the DENR secretary a work program
covering each period of three fiscal years (Clause 6.2).

16. The contractor is to submit reports to the DENR secretary on the production, ore reserves,
work accomplished and work in progress, profile of its work force and management staff, and other
technical information (Clause 6.3).

17. Any expansions, modifications, improvements and replacements of mining facilities shall be
subject to the approval of the secretary (Clause 6.4).

18. The State has control with respect to the amount of funds that the contractor may borrow within
the Philippines (Clause 7.2).

19. The State has supervisory power with respect to technical, financial and marketing issues
(Clause 10.1-a).

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 20. The contractor is required to ensure 60 percent Filipino equity in the contractor, within ten years
of recovering specified expenditures, unless not so required by subsequent legislation (Clause
10.1).

21. The State has the right to terminate the FTAA for the contractor's unremedied substantial
breach thereof (Clause 13.2);

22. The State's approval is needed for any assignment of the FTAA by the contractor to an entity
other than an affiliate (Clause 14.1).

We should elaborate a little on the work programs and budgets, and what they mean with respect to the
State's ability to exercise full control and effective supervision over the enterprise. For instance, throughout
the initial five-year exploration and feasibility phase of the project, the contractor is mandated by Clause 5.1
of the WMCP FTAA to submit a series of work programs (copy furnished the director of MGB) to the DENR
secretary for approval. The programs will detail the contractor's proposed exploration activities and
budget covering each subsequent period of two fiscal years.

In other words, the concerned government officials will be informed beforehand of the proposed exploration
activities and expenditures of the contractor for each succeeding two-year period, with the right to
approve/disapprove them or require changes or adjustments therein if deemed necessary.

Likewise, under Clause 5.2(a), the amount that the contractor was supposed to spend for exploration
activities during the first contract year of the exploration period was fixed at not less than P24 million; and
then for the succeeding years, the amount shall be as agreed between the DENR secretary and the
contractor prior to the commencement of each subsequent fiscal year. If no such agreement is arrived upon,
the previous year's expenditure commitment shall apply.

This provision alone grants the government through the DENR secretary a very big say in the exploration
phase of the project. This fact is not something to be taken lightly, considering that the government has
absolutely no contribution to the exploration expenditures or work activities and yet is given veto power over
such a critical aspect of the project. We cannot but construe as very significant such a degree of control over
the project and, resultantly, over the mining enterprise itself.

Following its exploration activities or feasibility studies, if the contractor believes that any part of the contract
area is likely to contain an economic mineral resource, it shall submit to the DENR secretary a declaration of
mining feasibility (per Clause 5.4 of the FTAA), together with a technical description of the area delineated for
development and production, a description of the proposed mining operations including the technology to be
used, a work program for development, an environmental impact statement, and a description of the
contributions to the economic and general welfare of the country to be generated by the mining operations
(pursuant to Clause 5.5).

The work program for development is subject to the approval of the DENR secretary. Upon its approval, the
contractor must comply with it and complete the development of the mine, including the construction of
production facilities and installation of machinery and equipment, within the period provided in the approved
work program for development (per Clause 6.1).

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Thus, notably, the development phase of the project is likewise subject to the control and supervision of the
government. It cannot be emphasized enough that the proper and timely construction and deployment of the
production facilities and the development of the mine are of pivotal significance to the success of the mining
venture. Any missteps here will potentially be very costly to remedy. Hence, the submission of the work
program for development to the DENR secretary for approval is particularly noteworthy, considering that so
many millions of dollars worth of investments -- courtesy of the contractor -- are made to depend on the
State's consideration and action.

Throughout the operating period, the contractor is required to submit to the DENR secretary for approval,
copy furnished the director of MGB, work programs covering each period of three fiscal years (per Clause
6.2). During the same period (per Clause 6.3), the contractor is mandated to submit various quarterly and
annual reports to the DENR secretary, copy furnished the director of MGB, on the tonnages of production in
terms of ores and concentrates, with corresponding grades, values and destinations; reports of sales; total
ore reserves, total tonnage of ores, work accomplished and work in progress (installations and facilities
related to mining operations), investments made or committed, and so on and so forth.

Under Section VIII, during the period of mining operations, the contractor is also required to submit to the
DENR secretary (copy furnished the director of MGB) the work program and corresponding budget for the
contract area, describing the mining operations that are proposed to be carried out during the period
covered. The secretary is, of course, entitled to grant or deny approval of any work program or budget and/or
propose revisions thereto. Once the program/budget has been approved, the contractor shall comply
therewith.

In sum, the above provisions of the WMCP FTAA taken together, far from constituting a surrender of control
and a grant of beneficial ownership of mineral resources to the contractor in question, bestow upon the
State more than adequate control and supervision over the activities of the contractor and the
enterprise.

No Surrender of Control
Under the WMCP FTAA

Petitioners, however, take aim at Clause 8.2, 8.3, and 8.5 of the WMCP FTAA which, they say, amount to a
relinquishment of control by the State, since it "cannot truly impose its own discretion" in respect of the
submitted work programs.

"8.2. The Secretary shall be deemed to have approved any Work Programme or Budget or
variation thereofsubmitted by the Contractor unless within sixty (60) days after submission by the
Contractor the Secretary gives notice declining such approval or proposing a revision of certain
features and specifying its reasons therefor ('the Rejection Notice').

8.3. If the Secretary gives a Rejection Notice, the Parties shall promptly meet and endeavor to
agree on amendments to the Work Programme or Budget. If the Secretary and the Contractor fail
to agree on the proposed revision within 30 days from delivery of the Rejection Notice then
the Work Programme or Budget or variation thereof proposed by the Contractor shall be deemed
approved, so as not to unnecessarily delay the performance of the Agreement.

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 8.4. x x x x x x x x x

8.5. So far as is practicable, the Contractor shall comply with any approved Work Programme and
Budget. It is recognized by the Secretary and the Contractor that the details of any Work
Programmes or Budgets may require changes in the light of changing circumstances. The
Contractor may make such changes without approval of the Secretary provided they do not change
the general objective of any Work Programme, nor entail a downward variance of more than twenty
per centum (20percent) of the relevant Budget. All other variations to an approved Work
Programme or Budget shall be submitted for approval of the Secretary."

From the provisions quoted above, petitioners generalize by asserting that the government does not
participate in making critical decisions regarding the operations of the mining firm. Furthermore, while the
State can require the submission of work programs and budgets, the decision of the contractor will still
prevail, if the parties have a difference of opinion with regard to matters affecting operations and
management.

We hold, however, that the foregoing provisions do not manifest a relinquishment of control. For instance,
Clause 8.2 merely provides a mechanism for preventing the business or mining operations from grinding to a
complete halt as a result of possibly over-long and unjustified delays in the government's handling,
processing and approval of submitted work programs and budgets. Anyway, the provision does give the
DENR secretary more than sufficient time (60 days) to react to submitted work programs and budgets. It
cannot be supposed that proper grounds for objecting thereto, if any exist, cannot be discovered within a
period of two months.

On the other hand, Clause 8.3 seeks to provide a temporary, stop-gap solution in the event a disagreement
over the submitted work program or budget arises between the State and the contractor and results in a
stalemate or impasse, in order that there will be no unreasonably long delays in the performance of the
works.

These temporary or stop-gap solutions are not necessarily evil or wrong. Neither does it follow that the
government will inexorably be aggrieved if and when these temporary remedies come into play. First,
avoidance of long delays in these situations will undoubtedly redound to the benefit of the State as well as
the contractor. Second, who is to say that the work program or budget proposed by the contractor and
deemed approved under Clause 8.3 would not be the better or more reasonable or more effective
alternative? The contractor, being the "insider," as it were, may be said to be in a better position than the
State -- an outsider looking in -- to determine what work program or budget would be appropriate, more
effective, or more suitable under the circumstances.

All things considered, we take exception to the characterization of the DENR secretary as a subservient
nonentity whom the contractor can overrule at will, on account of Clause 8.3. And neither is it true that under
the same clause, the DENR secretary has no authority whatsoever to disapprove the work program. As
Respondent WMCP reasoned in its Reply-Memorandum, the State -- despite Clause 8.3 -- still has control
over the contract area and it may, as sovereign authority, prohibit work thereon until the dispute is resolved.
And ultimately, the State may terminate the agreement, pursuant to Clause 13.2 of the same FTAA, citing

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substantial breach thereof. Hence, it clearly retains full and effective control of the exploitation of the mineral
resources.

On the other hand, Clause 8.5 is merely an acknowledgment of the parties' need for flexibility, given that no
one can accurately forecast under all circumstances, or predict how situations may change. Hence, while
approved work programs and budgets are to be followed and complied with as far as practicable, there may
be instances in which changes will have to be effected, and effected rapidly, since events may take shape
and unfold with suddenness and urgency. Thus, Clause 8.5 allows the contractor to move ahead and make
changes without the express or implicit approval of the DENR secretary. Such changes are, however, subject
to certain conditions that will serve to limit or restrict the variance and prevent the contractor from straying
very far from what has been approved.

Clause 8.5 provides the contractor a certain amount of flexibility to meet unexpected situations, while still
guaranteeing that the approved work programs and budgets are not abandoned altogether. Clause 8.5 does
not constitute proof that the State has relinquished control. And ultimately, should there be disagreement with
the actions taken by the contractor in this instance as well as under Clause 8.3 discussed above, the DENR
secretary may resort to cancellation/termination of the FTAA as the ultimate sanction.

Discretion to Select Contract

Area Not an Abdication of Control

Next, petitioners complain that the contractor has full discretion to select -- and the government has no say
whatsoever as to -- the parts of the contract area to be relinquished pursuant to Clause 4.6 of the WMCP
FTAA.56This clause, however, does not constitute abdication of control. Rather, it is a mere acknowledgment
of the fact that the contractor will have determined, after appropriate exploration works, which portions of the
contract area do not contain minerals in commercial quantities sufficient to justify developing the same and
ought therefore to be relinquished. The State cannot just substitute its judgment for that of the contractor and
dictate upon the latter which areas to give up.

Moreover, we can be certain that the contractor's self-interest will propel proper and efficient relinquishment.
According to private respondent,57 a mining company tries to relinquish as much non-mineral areas as soon
as possible, because the annual occupation fees paid to the government are based on the total hectarage of
the contract area, net of the areas relinquished. Thus, the larger the remaining area, the heftier the amount of
occupation fees to be paid by the contractor. Accordingly, relinquishment is not an issue, given that the
contractor will not want to pay the annual occupation fees on the non-mineral parts of its contract area.
Neither will it want to relinquish promising sites, which other contractors may subsequently pick up.

Government Not a Subcontractor

Petitioners further maintain that the contractor can compel the government to exercise its power of eminent
domain to acquire surface areas within the contract area for the contractor's use. Clause 10.2 (e) of the
WMCP FTAA provides that the government agrees that the contractor shall "(e) have the right to require the
Government at the Contractor's own cost, to purchase or acquire surface areas for and on behalf of the
Contractor at such price and terms as may be acceptable to the contractor. At the termination of this

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Agreement such areas shall be sold by public auction or tender and the Contractor shall be entitled to
reimbursement of the costs of acquisition and maintenance, adjusted for inflation, from the proceeds of sale."

According to petitioners, "government becomes a subcontractor to the contractor" and may, on account of
this provision, be compelled "to make use of its power of eminent domain, not for public purposes but on
behalf of a private party, i.e., the contractor." Moreover, the power of the courts to determine the amount
corresponding to the constitutional requirement of just compensation has allegedly also been contracted
away by the government, on account of the latter's commitment that the acquisition shall be at such terms as
may be acceptable to the contractor.

However, private respondent has proffered a logical explanation for the provision. 58 Section 10.2(e)
contemplates a situation applicable to foreign-owned corporations. WMCP, at the time of the execution of the
FTAA, was a foreign-owned corporation and therefore not qualified to own land. As contractor, it has at some
future date to construct the infrastructure -- the mine processing plant, the camp site, the tailings dam, and
other infrastructure -- needed for the large-scale mining operations. It will then have to identify and pinpoint,
within the FTAA contract area, the particular surface areas with favorable topography deemed ideal for such
infrastructure and will need to acquire the surface rights. The State owns the mineral deposits in the earth,
and is also qualified to own land.

Section 10.2(e) sets forth the mechanism whereby the foreign-owned contractor, disqualified to own land,
identifies to the government the specific surface areas within the FTAA contract area to be acquired for the
mine infrastructure. The government then acquires ownership of the surface land areas on behalf of the
contractor, in order to enable the latter to proceed to fully implement the FTAA.

The contractor, of course, shoulders the purchase price of the land. Hence, the provision allows it, after
termination of the FTAA, to be reimbursed from proceeds of the sale of the surface areas, which the
government will dispose of through public bidding. It should be noted that this provision will not be applicable
to Sagittarius as the present FTAA contractor, since it is a Filipino corporation qualified to own and hold land.
As such, it may therefore freely negotiate with the surface rights owners and acquire the surface property in
its own right.

Clearly, petitioners have needlessly jumped to unwarranted conclusions, without being aware of the rationale
for the said provision. That provision does not call for the exercise of the power of eminent domain -- and
determination of just compensation is not an issue -- as much as it calls for a qualified party to acquire the
surface rights on behalf of a foreign-owned contractor.

Rather than having the foreign contractor act through a dummy corporation, having the State do the
purchasing is a better alternative. This will at least cause the government to be aware of such transaction/s
and foster transparency in the contractor's dealings with the local property owners. The government, then,
will not act as a subcontractor of the contractor; rather, it will facilitate the transaction and enable the parties
to avoid a technical violation of the Anti-Dummy Law.

Absence of Provision
Requiring Sale at Posted
Prices Not Problematic

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The supposed absence of any provision in the WMCP FTAA directly and explicitly requiring the contractor
to sell the mineral products at posted or market prices is not a problem. Apart from Clause 1.4 of the FTAA
obligating the contractor to account for the total value of mineral production and the sale of minerals, we can
also look to Section 35 of RA 7942, which incorporates into all FTAAs certain terms, conditions and
warranties, including the following:

"(l) The contractors shall furnish the Government records of geologic, accounting and other
relevant data for its mining operation, and that books of accounts and records shall be open for
inspection by the government.x x x

(m) Requiring the proponent to dispose of the minerals at the highest price and more
advantageous terms and conditions."

For that matter, Section 56(n) of DAO 99-56 specifically obligates an FTAA contractor to dispose of the
minerals and by-products at the highest market price and to register with the MGB a copy of the sales
agreement. After all, the provisions of prevailing statutes as well as rules and regulations are deemed written
into contracts.

Contractor's Right to Mortgage

Not Objectionable Per Se

Petitioners also question the absolute right of the contractor under Clause 10.2 (l) to mortgage and encumber
not only its rights and interests in the FTAA and the infrastructure and improvements introduced, but also the
mineral products extracted. Private respondents do not touch on this matter, but we believe that this
provision may have to do with the conditions imposed by the creditor-banks of the then foreign contractor
WMCP to secure the lendings made or to be made to the latter. Ordinarily, banks lend not only on the
security of mortgages on fixed assets, but also on encumbrances of goods produced that can easily be sold
and converted into cash that can be applied to the repayment of loans. Banks even lend on the security
of accounts receivable that are collectible within 90 days.59

It is not uncommon to find that a debtor corporation has executed deeds of assignment "by way of security"
over the production for the next twelve months and/or the proceeds of the sale thereof -- or the
corresponding accounts receivable, if sold on terms -- in favor of its creditor-banks. Such deeds may include
authorizing the creditors to sell the products themselves and to collect the sales proceeds and/or the
accounts receivable.

Seen in this context, Clause 10.2(l) is not something out of the ordinary or objectionable. In any case, as will
be explained below, even if it is allowed to mortgage or encumber the mineral end-products themselves, the
contractor is not freed of its obligation to pay the government its basic and additional shares in the net mining
revenue, which is the essential thing to consider.

In brief, the alarum raised over the contractor's right to mortgage the minerals is simply unwarranted. Just the
same, the contractor must account for the value of mineral production and the sales proceeds therefrom.
Likewise, under the WMCP FTAA, the government remains entitled to its sixty percent share in the net

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mining revenues of the contractor. The latter's right to mortgage the minerals does not negate the State's
right to receive its share of net mining revenues.

Shareholders Free to Sell Their Stocks

Petitioners likewise criticize Clause 10.2(k), which gives the contractor authority "to change its equity
structure at any time." This provision may seem somewhat unusual, but considering that WMCP then was
100 percent foreign-owned, any change would mean that such percentage would either stay unaltered or be
decreased in favor of Filipino ownership. Moreover, the foreign-held shares may change hands freely. Such
eventuality is as it should be.

We believe it is not necessary for government to attempt to limit or restrict the freedom of the shareholders in
the contractor to freely transfer, dispose of or encumber their shareholdings, consonant with the unfettered
exercise of their business judgment and discretion. Rather, what is critical is that, regardless of the identity,
nationality and percentage ownership of the various shareholders of the contractor -- and regardless of
whether these shareholders decide to take the company public, float bonds and other fixed-income
instruments, or allow the creditor-banks to take an equity position in the company -- the foreign-owned
contractor is always in a position to render the services required under the FTAA, under the direction and
control of the government.

Contractor's Right to Ask

For Amendment Not Absolute

With respect to Clauses 10.4(e) and (i), petitioners complain that these provisions bind government to allow
amendments to the FTAA if required by banks and other financial institutions as part of the conditions for
new lendings. However, we do not find anything wrong with Clause 10.4(e), which only states that "if the
Contractor seeks to obtain financing contemplated herein from banks or other financial institutions, (the
Government shall) cooperate with the Contractor in such efforts provided that such financing arrangements
will in no event reduce the Contractor's obligations or the Government's rights
hereunder." The colatilla obviously safeguards the State's interests; if breached, it will give the government
cause to object to the proposed amendments.

On the other hand, Clause 10.4(i) provides that "the Government shall favourably consider any request from
[the] Contractor for amendments of this Agreement which are necessary in order for the Contractor to
successfully obtain the financing." Petitioners see in this provision a complete renunciation of control. We
disagree.

The proviso does not say that the government shall grant any request for amendment. Clause 10.4(i) only
obliges the State to favorably consider any such request, which is not at all unreasonable, as it is not
equivalent to saying that the government must automatically consent to it. This provision should be read
together with the rest of the FTAA provisions instituting government control and supervision over the mining
enterprise. The clause should not be given an interpretation that enables the contractor to wiggle out of the
restrictions imposed upon it by merely suggesting that certain amendments are requested by the lenders.

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Rather, it is up to the contractor to prove to the government that the requested changes to the FTAA are
indispensable, as they enable the contractor to obtain the needed financing; that without such contract
changes, the funders would absolutely refuse to extend the loan; that there are no other sources of financing
available to the contractor (a very unlikely scenario); and that without the needed financing, the execution of
the work programs will not proceed. But the bottom line is, in the exercise of its power of control, the
government has the final say on whether to approve or disapprove such requested amendments to the
FTAA. In short, approval thereof is not mandatory on the part of the government.

In fine, the foregoing evaluation and analysis of the aforementioned FTAA provisions sufficiently
overturns petitioners' litany of objections to and criticisms of the State's alleged lack of control.

Financial Benefits Not

Surrendered to the Contractor

One of the main reasons certain provisions of RA 7942 were struck down was the finding mentioned in the
Decision that beneficial ownership of the mineral resources had been conveyed to the contractor. This
finding was based on the underlying assumption, common to the said provisions, that the foreign contractor
manages the mineral resources in the same way that foreign contractors in service contracts used to. "By
allowing foreign contractors to manage or operate all the aspects of the mining operation, the above-cited
provisions of R.A. No. 7942 have in effect conveyed beneficial ownership over the nation's mineral
resources to these contractors, leaving the State with nothing but bare title thereto."60 As the WMCP FTAA
contained similar provisions deemed by the ponente to be abhorrent to the Constitution, the Decision struck
down the Contract as well.

Beneficial ownership has been defined as ownership recognized by law and capable of being enforced in the
courts at the suit of the beneficial owner.61 Black's Law Dictionary indicates that the term is used in two
senses: first, to indicate the interest of a beneficiary in trust property (also called "equitable ownership");
and second, to refer to the power of a corporate shareholder to buy or sell the shares, though the
shareholder is not registered in the corporation's books as the owner.62 Usually, beneficial ownership is
distinguished from naked ownership, which is the enjoyment of all the benefits and privileges of ownership,
as against possession of the bare title to property.

An assiduous examination of the WMCP FTAA uncovers no indication that it confers upon WMCP
ownership, beneficial or otherwise, of the mining property it is to develop, the minerals to be produced, or the
proceeds of their sale, which can be legally asserted and enforced as against the State.

As public respondents correctly point out, any interest the contractor may have in the proceeds of the mining
operation is merely the equivalent of the consideration the government has undertaken to pay for its
services. All lawful contracts require such mutual prestations, and the WMCP FTAA is no different. The
contractor commits to perform certain services for the government in respect of the mining operation, and in
turn it is to be compensated out of the net mining revenues generated from the sale of mineral products.
What would be objectionable is a contractual provision that unduly benefits the contractor far in excess of the
service rendered or value delivered, if any, in exchange therefor.

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A careful perusal of the statute itself and its implementing rules reveals that neither RA 7942 nor DAO 99-56
can be said to convey beneficial ownership of any mineral resource or product to any foreign FTAA
contractor.

Equitable Sharing
of Financial Benefits

On the contrary, DAO 99-56, entitled "Guidelines Establishing the Fiscal Regime of Financial or Technical
Assistance Agreements" aims to ensure an equitable sharing of the benefits derived from mineral resources.
These benefits are to be equitably shared among the government (national and local), the FTAA contractor,
and the affected communities. The purpose is to ensure sustainable mineral resources development; and a
fair, equitable, competitive and stable investment regime for the large-scale exploration, development and
commercial utilization of minerals. The general framework or concept followed in crafting the fiscal regime of
the FTAA is based on the principle that the government expects real contributions to the economic growth
and general welfare of the country, while the contractor expects a reasonable return on its investments in the
project.63

Specifically, under the fiscal regime, the government's expectation is, inter alia, the receipt of its share from
the taxes and fees normally paid by a mining enterprise. On the other hand, the FTAA contractor is granted
by the government certain fiscal and non-fiscal incentives64 to help support the former's cash flow during the
most critical phase (cost recovery) and to make the Philippines competitive with other mineral-producing
countries. After the contractor has recovered its initial investment, it will pay all the normal taxes and fees
comprising the basic share of the government, plus an additional share for the government based on the
options and formulae set forth in DAO 99-56.

The said DAO spells out the financial benefits the government will receive from an FTAA, referred to as "the
Government Share," composed of a basic government share and an additional government share.

The basic government share is comprised of all direct taxes, fees and royalties, as well as other payments
made by the contractor during the term of the FTAA. These are amounts paid directly to (i) the national
government (through the Bureau of Internal Revenue, Bureau of Customs, Mines & Geosciences Bureau and
other national government agencies imposing taxes or fees), (ii) the local government units where the mining
activity is conducted, and (iii) persons and communities directly affected by the mining project. The major
taxes and other payments constituting the basic government share are enumerated below: 65

Payments to the National Government:

· Excise tax on minerals - 2 percent of the gross output of mining operations

· Contractor' income tax - maximum of 32 percent of taxable income for corporations

· Customs duties and fees on imported capital equipment -the rate is set by the Tariff and
Customs Code (3-7 percent for chemicals; 3-10 percent for explosives; 3-15 percent for
mechanical and electrical equipment; and 3-10 percent for vehicles, aircraft and vessels

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 · VAT on imported equipment, goods and services – 10 percent of value

· Royalties due the government on minerals extracted from mineral reservations, if

applicable – 5 percent of the actual market value of the minerals produced

· Documentary stamp tax - the rate depends on the type of transaction

· Capital gains tax on traded stocks - 5 to 10 percent of the value of the shares

· Withholding tax on interest payments on foreign loans -15 percent of the amount of
interest

· Withholding tax on dividend payments to foreign stockholders – 15 percent of the

dividend

· Wharfage and port fees

· Licensing fees (for example, radio permit, firearms permit, professional fees)

· Other national taxes and fees.

Payments to Local Governments:

· Local business tax - a maximum of 2 percent of gross sales or receipts (the rate varies
among local government units)

· Real property tax - 2 percent of the fair market value of the property, based on an
assessment level set by the local government

· Special education levy - 1 percent of the basis used for the real property tax

· Occupation fees - PhP50 per hectare per year; PhP100 per hectare per year if located
in a mineral reservation

· Community tax - maximum of PhP10,500 per year

· All other local government taxes, fees and imposts as of the effective date of the FTAA
- the rate and the type depend on the local government

Other Payments:

· Royalty to indigenous cultural communities, if any – 1 percent of gross output from

mining operations

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 · Special allowance - payment to claim owners and surface rights holders

Apart from the basic share, an additional government share is also collected from the FTAA contractor in
accordance with the second paragraph of Section 81 of RA 7942, which provides that the government share
shall be comprised of, among other things, certain taxes, duties and fees. The subject proviso reads:

"The Government share in a financial or technical assistance agreement shall consist of, among other
things, the contractor's corporate income tax, excise tax, special allowance, withholding tax due from the
contractor's foreign stockholders arising from dividend or interest payments to the said foreign stockholder in
case of a foreign national, and all such other taxes, duties and fees as provided for under existing
laws." (Bold types supplied.)

The government, through the DENR and the MGB, has interpreted the insertion of the phrase among other
things as signifying that the government is entitled to an "additional government share" to be paid by the
contractor apart from the "basic share," in order to attain a fifty-fifty sharing of net benefits from mining.

The additional government share is computed by using one of three options or schemes presented in DAO
99-56: (1) a fifty-fifty sharing in the cumulative present value of cash flows; (2) the share based on excess
profits; and (3) the sharing based on the cumulative net mining revenue. The particular formula to be applied
will be selected by the contractor, with a written notice to the government prior to the commencement of the
development and construction phase of the mining project.66

Proceeds from the government shares arising from an FTAA contract are distributed to and received by the
different levels of government in the following proportions:

National Government 50 percent

Provincial Government 10 percent

Municipal Government 20 percent

Affected Barangays 20 percent

The portion of revenues remaining after the deduction of the basic and additional government shares is what
goes to the contractor.

Government's Share in an
FTAA Not Consisting Solely
of Taxes, Duties and Fees

In connection with the foregoing discussion on the basic and additional government shares, it is pertinent
at this juncture to mention the criticism leveled at the second paragraph of Section 81 of RA 7942, quoted
earlier. The said proviso has been denounced, because, allegedly, the State's share in FTAAs with foreign
contractors has been limited to taxes, fees and duties only; in effect, the State has been deprived of a share

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in the after-tax income of the enterprise. In the face of this allegation, one has to consider that the law does
not define the term among other things; and the Office of the Solicitor General, in its Motion for
Reconsideration, appears to have erroneously claimed that the phrase refers to indirect taxes.

The law provides no definition of the term among other things, for the reason that Congress deliberately
avoided setting unnecessary limitations as to what may constitute compensation to the State for the
exploitation and use of mineral resources. But the inclusion of that phrase clearly and unmistakably reveals
the legislative intent to have the State collect more than just the usual taxes, duties and fees. Certainly, there
is nothing in that phrase -- or in the second paragraph of Section 81 -- that would suggest that such phrase
should be interpreted as referring only to taxes, duties, fees and the like.

Precisely for that reason, to fulfill the legislative intent behind the inclusion of the phrase among other
things in the second paragraph of Section 81,67 the DENR structured and formulated in DAO 99-56 the
said additional government share. Such a share was to consist not of taxes, but of a share in the
earnings or cash flows of the mining enterprise. The additional government share was to be paid by the
contractor on top of the basic share, so as to achieve a fifty-fifty sharing -- between the government and the
contractor -- of net benefits from mining. In the Ramos-DeVera paper, the explanation of the three options
or formulas68 -- presented in DAO 99-56 for the computation of the additional government share -- serves to
debunk the claim that the government's take from an FTAA consists solely of taxes, fees and duties.

Unfortunately, the Office of the Solicitor General -- although in possession of the relevant data -- failed to fully
replicate or echo the pertinent elucidation in the Ramos-DeVera paper regarding the three schemes or
options for computing the additional government share presented in DAO 99-56. Had due care been taken
by the OSG, the Court would have been duly apprised of the real nature and particulars of the additional
share.

But, perhaps, on account of the esoteric discussion in the Ramos-DeVera paper, and the even more
abstruse mathematical jargon employed in DAO 99-56, the OSG omitted any mention of the three options.
Instead, the OSG skipped to a side discussion of the effect of indirect taxes, which had nothing at all to do
with the additional government share, to begin with. Unfortunately, this move created the wrong impression,
pointed out in Justice Antonio T. Carpio's Opinion, that the OSG had taken the position that the additional
government share consisted of indirect taxes.

In any event, what is quite evident is the fact that the additional government share, as formulated, has
nothing to do with taxes -- direct or indirect -- or with duties, fees or charges. To repeat, it is over and above
the basic government share composed of taxes and duties. Simply put, the additional share may be (a) an
amount that will result in a 50-50 sharing of the cumulative present value of the cash flows69 of the enterprise;
(b) an amount equivalent to 25 percent of the additional or excess profits of the enterprise, reckoned against
a benchmark return on investments; or (c) an amount that will result in a fifty-fifty sharing of the
cumulative net mining revenue from the end of the recovery period up to the taxable year in question. The
contractor is required to select one of the three options or formulae for computing the additional share, an
option it will apply to all of its mining operations.

As used above, "net mining revenue" is defined as the gross output from mining operations for a calendar
year, less deductible expenses (inclusive of taxes, duties and fees). Such revenue would roughly be

206 |C o n s t i t u t i o n a l L a w I P a g e 1
equivalent to "taxable income" or income before income tax. Definitely, as compared with, say, calculating
the additional government share on the basis of net income (after income tax), the net mining revenue is a
better and much more reasonable basis for such computation, as it gives a truer picture of the profitability of
the company.

To demonstrate that the three options or formulations will operate as intended, Messrs. Ramos and de Vera
also performed some quantifications of the government share via a financial modeling of each of the three
options discussed above. They found that the government would get the highest share from the option that is
based on the net mining revenue, as compared with the other two options, considering only the basic and the
additional shares; and that, even though production rate decreases, the government share will actually
increase when the net mining revenue and the additional profit-based options are used.

Furthermore, it should be noted that the three options or formulae do not yet take into account the indirect
taxes70and other financial contributions71 of mining projects. These indirect taxes and other contributions are
real and actual benefits enjoyed by the Filipino people and/or government. Now, if some of the quantifiable
items are taken into account in the computations, the financial modeling would show that the total
government share increases to 60 percent or higher -- in one instance, as much as 77 percent and even 89
percent -- of the net present value of total benefits from the project. As noted in the Ramos-DeVera paper,
these results are not at all shabby, considering that the contractor puts in all the capital requirements and
assumes all the risks, without the government having to contribute or risk anything.

Despite the foregoing explanation, Justice Carpio still insisted during the Court's deliberations that the
phrase among other things refers only to taxes, duties and fees. We are bewildered by his position. On the
one hand, he condemns the Mining Law for allegedly limiting the government's benefits only to taxes, duties
and fees; and on the other, he refuses to allow the State to benefit from the correct and proper interpretation
of the DENR/MGB. To remove all doubts then, we hold that the State's share is not limited to taxes, duties
and fees only and that the DENR/MGB interpretation of the phrase among other things is correct. Definitely,
this DENR/MGB interpretation is not only legally sound, but also greatly advantageous to the government.

One last point on the subject. The legislature acted judiciously in not defining the terms among other
things and, instead, leaving it to the agencies concerned to devise and develop the various modes of arriving
at a reasonable and fair amount for the additional government share. As can be seen from DAO 99-56, the
agencies concerned did an admirable job of conceiving and developing not just one formula, but three
different formulae for arriving at the additional government share. Each of these options is quite fair and
reasonable; and, as Messrs. Ramos and De Vera stated, other alternatives or schemes for a possible
improvement of the fiscal regime for FTAAs are also being studied by the government.

Besides, not locking into a fixed definition of the term among other things will ultimately be more beneficial to
the government, as it will have that innate flexibility to adjust to and cope with rapidly changing
circumstances, particularly those in the international markets. Such flexibility is especially significant for the
government in terms of helping our mining enterprises remain competitive in world markets despite
challenging and shifting economic scenarios.

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In conclusion, we stress that we do not share the view that in FTAAs with foreign contractors under
RA 7942, the government's share is limited to taxes, fees and duties. Consequently, we find the
attacks on the second paragraph of Section 81 of RA 7942 totally unwarranted.

Collections Not Made Uncertain

by the Third Paragraph of Section 81

The third or last paragraph of Section 8172 provides that the government share in FTAAs shall be collected
when the contractor shall have recovered its pre-operating expenses and exploration and development
expenditures. The objection has been advanced that, on account of the proviso, the collection of the State's
share is not even certain, as there is no time limit in RA 7942 for this grace period or recovery period.

We believe that Congress did not set any time limit for the grace period, preferring to leave it to the
concerned agencies, which are, on account of their technical expertise and training, in a better position to
determine the appropriate durations for such recovery periods. After all, these recovery periods are
determined, to a great extent, by technical and technological factors peculiar to the mining industry. Besides,
with developments and advances in technology and in the geosciences, we cannot discount the possibility of
shorter recovery periods. At any rate, the concerned agencies have not been remiss in this area. The 1995
and 1996 Implementing Rules and Regulations of RA 7942 specify that the period of recovery, reckoned
from the date of commercial operation, shall be for a period not exceeding five years, or until the date
of actual recovery, whichever comes earlier.

Approval of Pre-Operating
Expenses Required by RA 7942

Still, RA 7942 is criticized for allegedly not requiring government approval of pre-operating, exploration and
development expenses of the foreign contractors, who are in effect given unfettered discretion to determine
the amounts of such expenses. Supposedly, nothing prevents the contractors from recording such expenses
in amounts equal to the mining revenues anticipated for the first 10 or 15 years of commercial production,
with the result that the share of the State will be zero for the first 10 or 15 years. Moreover, under the
circumstances, the government would be unable to say when it would start to receive its share under the
FTAA.

We believe that the argument is based on incorrect information as well as speculation. Obviously, certain
crucial provisions in the Mining Law were overlooked. Section 23, dealing with the rights and obligations of
the exploration permit grantee, states: "The permittee shall undertake exploration work on the area as
specified by its permit based on an approved work program." The next proviso reads: "Any expenditure in
excess of the yearly budget of the approved work program may be carried forward and credited to the
succeeding years covering the duration of the permit. x x x." (underscoring supplied)

Clearly, even at the stage of application for an exploration permit, the applicant is required to submit -- for
approval by the government -- a proposed work program for exploration, containing a yearly budget of
proposed expenditures. The State has the opportunity to pass upon (and approve or reject) such proposed
expenditures, with the foreknowledge that -- if approved -- these will subsequently be recorded as pre-
operating expenses that the contractor will have to recoup over the grace period. That is not all.

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Under Section 24, an exploration permit holder who determines the commercial viability of a project covering
a mining area may, within the term of the permit, file with the Mines and Geosciences Bureau a declaration of
mining project feasibility. This declaration is to be accompanied by a work program for development for the
Bureau's approval, the necessary prelude for entering into an FTAA, a mineral production sharing agreement
(MPSA), or some other mineral agreement. At this stage, too, the government obviously has the opportunity
to approve or reject the proposed work program and budgeted expenditures for development works on the
project. Such expenditures will ultimately become the pre-operating and development costs that will have to
be recovered by the contractor.

Naturally, with the submission of approved work programs and budgets for the exploration and the
development/construction phases, the government will be able to scrutinize and approve or reject such
expenditures. It will be well-informed as to the amounts of pre-operating and other expenses that the
contractor may legitimately recover and the approximate period of time needed to effect such a recovery.
There is therefore no way the contractor can just randomly post any amount of pre-operating expenses and
expect to recover the same.

The aforecited provisions on approved work programs and budgets have counterparts in Section 35, which
deals with the terms and conditions exclusively applicable to FTAAs. The said provision requires certain
terms and conditions to be incorporated into FTAAs; among them, "a firm commitment x x x of an amount
corresponding to the expenditure obligation that will be invested in the contract area" and "representations
and warranties x x x to timely deploy these [financing, managerial and technical expertise and
technological] resources under its supervision pursuant to the periodic work programs and related budgets x
x x," as well as "work programs and minimum expenditures commitments." (underscoring supplied)

Unarguably, given the provisions of Section 35, the State has every opportunity to pass upon the proposed
expenditures under an FTAA and approve or reject them. It has access to all the information it may need in
order to determine in advance the amounts of pre-operating and developmental expenses that will have to be
recovered by the contractor and the amount of time needed for such recovery.

In summary, we cannot agree that the third or last paragraph of Section 81 of RA 7942 is in any
manner unconstitutional.

No Deprivation of Beneficial Rights

It is also claimed that aside from the second and the third paragraphs of Section 81 (discussed above),
Sections 80, 84 and 112 of RA 7942 also operate to deprive the State of beneficial rights of ownership over
mineral resources; and give them away for free to private business enterprises (including foreign owned
corporations). Likewise, the said provisions have been construed as constituting, together with Section 81,
an ingenious attempt to resurrect the old and discredited system of "license, concession or lease."

Specifically, Section 80 is condemned for limiting the State's share in a mineral production-sharing
agreement (MPSA) to just the excise tax on the mineral product. Under Section 151(A) of the Tax Code,
such tax is only 2 percent of the market value of the gross output of the minerals. The colatilla in Section 84,
the portion considered offensive to the Constitution, reiterates the same limitation made in Section 80. 73

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It should be pointed out that Section 80 and the colatilla in Section 84 pertain only to MPSAs and have no
application to FTAAs. These particular statutory provisions do not come within the issues that were defined
and delineated by this Court during the Oral Argument -- particularly the third issue, which pertained
exclusively to FTAAs. Neither did the parties argue upon them in their pleadings. Hence, this Court cannot
make any pronouncement in this case regarding the constitutionality of Sections 80 and 84 without violating
the fundamental rules of due process. Indeed, the two provisos will have to await another case specifically
placing them in issue.

On the other hand, Section 11274 is disparaged for allegedly reverting FTAAs and all mineral agreements to
the old and discredited "license, concession or lease" system. This Section states in relevant part that "the
provisions of Chapter XIV [which includes Sections 80 to 82] on government share in mineral production-
sharing agreement x x x shall immediately govern and apply to a mining lessee or contractor." (underscoring
supplied) This provision is construed as signifying that the 2 percent excise tax which, pursuant to Section
80, comprises the government share in MPSAs shall now also constitute the government share in FTAAs --
as well as in co-production agreements and joint venture agreements -- to the exclusion of revenues of any
other nature or from any other source.

Apart from the fact that Section 112 likewise does not come within the issues delineated by this Court during
the Oral Argument, and was never touched upon by the parties in their pleadings, it must also be noted that
the criticism hurled against this Section is rooted in unwarranted conclusions made without considering other
relevant provisions in the statute. Whether Section 112 may properly apply to co-production or joint venture
agreements, the fact of the matter is that it cannot be made to apply to FTAAs.

First, Section 112 does not specifically mention or refer to FTAAs; the only reason it is being applied to them
at all is the fact that it happens to use the word "contractor." Hence, it is a bit of a stretch to insist that it
covers FTAAs as well. Second, mineral agreements, of which there are three types -- MPSAs, co-production
agreements, and joint venture agreements -- are covered by Chapter V of RA 7942. On the other hand,
FTAAs are covered by and in fact are the subject of Chapter VI, an entirely different chapter altogether. The
law obviously intends to treat them as a breed apart from mineral agreements, since Section 35 (found in
Chapter VI) creates a long list of specific terms, conditions, commitments, representations and warranties --
which have not been made applicable to mineral agreements -- to be incorporated into FTAAs.

Third, under Section 39, the FTAA contractor is given the option to "downgrade" -- to convert the FTAA into a
mineral agreement at any time during the term if the economic viability of the contract area is inadequate to
sustain large-scale mining operations. Thus, there is no reason to think that the law through Section 112
intends to exact from FTAA contractors merely the same government share (a 2 percent excise tax) that it
apparently demands from contractors under the three forms of mineral agreements. In brief, Section 112
does not apply to FTAAs.

Notwithstanding the foregoing explanation, Justices Carpio and Morales maintain that the Court must
rule now on the constitutionality of Sections 80, 84 and 112, allegedly because the WMCP FTAA contains a
provision which grants the contractor unbridled and "automatic" authority to convert the FTAA into an MPSA;
and should such conversion happen, the State would be prejudiced since its share would be limited to the 2
percent excise tax. Justice Carpio adds that there are five MPSAs already signed just awaiting the judgment
of this Court on respondents' and intervenor's Motions for Reconsideration. We hold however that, at this

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point, this argument is based on pure speculation. The Court cannot rule on mere surmises and hypothetical
assumptions, without firm factual anchor. We repeat: basic due process requires that we hear the parties
who have a real legal interest in the MPSAs (i.e. the parties who executed them) before these MPSAs can be
reviewed, or worse, struck down by the Court. Anything less than that requirement would be arbitrary and
capricious.

In any event, the conversion of the present FTAA into an MPSA is problematic. First, the contractor must
comply with the law, particularly Section 39 of RA 7942; inter alia, it must convincingly show that the
"economic viability of the contract is found to be inadequate to justify large-scale mining
operations;" second, it must contend with the President's exercise of the power of State control over the EDU
of natural resources; and third, it will have to risk a possible declaration of the unconstitutionality (in a proper
case) of Sections 80, 84 and 112.

The first requirement is not as simple as it looks. Section 39 contemplates a situation in which an FTAA has
already been executed and entered into, and is presumably being implemented, when the contractor
"discovers" that the mineral ore reserves in the contract area are not sufficient to justify large-scale mining,
and thus the contractor requests the conversion of the FTAA into an MPSA. The contractor in effect needs to
explain why, despite its exploration activities, including the conduct of various geologic and other scientific
tests and procedures in the contract area, it was unable to determine correctly the mineral ore reserves and
the economic viability of the area. The contractor must explain why, after conducting such exploration
activities, it decided to file a declaration of mining feasibility, and to apply for an FTAA, thereby leading the
State to believe that the area could sustain large-scale mining. The contractor must justify fully why its earlier
findings, based on scientific procedures, tests and data, turned out to be wrong, or were way off. It must
likewise prove that its new findings, also based on scientific tests and procedures, are correct. Right away,
this puts the contractor's technical capabilities and expertise into serious doubt. We wonder if anyone would
relish being in this situation. The State could even question and challenge the contractor's qualification and
competence to continue the activity under an MPSA.

All in all, while there may be cogent grounds to assail the aforecited Sections, this Court -- on
considerations of due process -- cannot rule upon them here. Anyway, if later on these Sections are
declared unconstitutional, such declaration will not affect the other portions since they are clearly
separable from the rest.

Our Mineral Resources Not

Given Away for Free by RA 7942

Nevertheless, if only to disabuse our minds, we should address the contention that our mineral resources are
effectively given away for free by the law (RA 7942) in general and by Sections 80, 81, 84 and 112 in
particular.

Foreign contractors do not just waltz into town one day and leave the next, taking away mineral
resources without paying anything. In order to get at the minerals, they have to invest huge sums of money
(tens or hundreds of millions of dollars) in exploration works first. If the exploration proves unsuccessful, all
the cash spent thereon will not be returned to the foreign investors; rather, those funds will have been
infused into the local economy, to remain there permanently. The benefits therefrom cannot be simply

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ignored. And assuming that the foreign contractors are successful in finding ore bodies that are viable for
commercial exploitation, they do not just pluck out the minerals and cart them off. They have first to build
camp sites and roadways; dig mine shafts and connecting tunnels; prepare tailing ponds, storage areas and
vehicle depots; install their machinery and equipment, generator sets, pumps, water tanks and sewer
systems, and so on.

In short, they need to expend a great deal more of their funds for facilities, equipment and supplies, fuel,
salaries of local labor and technical staff, and other operating expenses. In the meantime, they also have to
pay taxes,75 duties, fees, and royalties. All told, the exploration, pre-feasibility, feasibility, development and
construction phases together add up to as many as eleven years.76 The contractors have to continually shell
out funds for the duration of over a decade, before they can commence commercial production from which
they would eventually derive revenues. All that money translates into a lot of "pump-priming" for the local
economy.

Granted that the contractors are allowed subsequently to recover their pre-operating expenses, still, that
eventuality will happen only after they shall have first put out the cash and fueled the economy. Moreover, in
the process of recouping their investments and costs, the foreign contractors do not actually pull out the
money from the economy. Rather, they recover or recoup their investments out of actual commercial
production by not paying a portion of the basic government share corresponding to national taxes, along with
the additional government share, for a period of not more than five years77 counted from the commencement
of commercial production.

It must be noted that there can be no recovery without commencing actual commercial production. In the
meantime that the contractors are recouping costs, they need to continue operating; in order to do so, they
have to disburse money to meet their various needs. In short, money is continually infused into the economy.

The foregoing discussion should serve to rid us of the mistaken belief that, since the foreign contractors are
allowed to recover their investments and costs, the end result is that they practically get the minerals for free,
which leaves the Filipino people none the better for it.

All Businesses Entitled

to Cost Recovery

Let it be put on record that not only foreign contractors, but all businessmen and all business entities in
general, have to recoup their investments and costs. That is one of the first things a student learns in
business school. Regardless of its nationality, and whether or not a business entity has a five-year cost
recovery period, it will -- must -- have to recoup its investments, one way or another. This is just common
business sense. Recovery of investments is absolutely indispensable for business survival; and business
survival ensures soundness of the economy, which is critical and contributory to the general welfare of the
people. Even government corporations must recoup their investments in order to survive and continue in
operation. And, as the preceding discussion has shown, there is no business that gets ahead or earns profits
without any cost to it.

It must also be stressed that, though the State owns vast mineral wealth, such wealth is not readily
accessible or transformable into usable and negotiable currency without the intervention of the credible

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mining companies. Those untapped mineral resources, hidden beneath tons of earth and rock, may as well
not be there for all the good they do us right now. They have first to be extracted and converted into
marketable form, and the country needs the foreign contractor's funds, technology and know-how for that.

After about eleven years of pre-operation and another five years for cost recovery, the foreign contractors will
have just broken even. Is it likely that they would at that point stop their operations and leave? Certainly not.
They have yet to make profits. Thus, for the remainder of the contract term, they must strive to maintain
profitability. During this period, they pay the whole of the basic government share and the additional
government share which, taken together with indirect taxes and other contributions, amount to approximately
60 percent or more of the entire financial benefits generated by the mining venture.

In sum, we can hardly talk about foreign contractors taking our mineral resources for free. It takes a lot of
hard cash to even begin to do what they do. And what they do in this country ultimately benefits the local
economy, grows businesses, generates employment, and creates infrastructure, as discussed above. Hence,
we definitely disagree with the sweeping claim that no FTAA under Section 81 will ever make any real
contribution to the growth of the economy or to the general welfare of the country. This is not a plea for
foreign contractors. Rather, this is a question of focusing the judicial spotlight squarely on all the pertinent
facts as they bear upon the issue at hand, in order to avoid leaping precipitately to ill-conceived conclusions
not solidly grounded upon fact.

Repatriation of After-Tax Income

Another objection points to the alleged failure of the Mining Law to ensure real contributions to the economic
growth and general welfare of the country, as mandated by Section 2 of Article XII of the Constitution.
Pursuant to Section 81 of the law, the entire after-tax income arising from the exploitation of mineral
resources owned by the State supposedly belongs to the foreign contractors, which will naturally repatriate
the said after-tax income to their home countries, thereby resulting in no real contribution to the economic
growth of this country. Clearly, this contention is premised on erroneous assumptions.

First, as already discussed in detail hereinabove, the concerned agencies have correctly interpreted the
second paragraph of Section 81 of RA 7942 to mean that the government is entitled to an additional share, to
be computed based on any one of the following factors: net mining revenues, the present value of the cash
flows, or excess profits reckoned against a benchmark rate of return on investments. So it is not correct to
say that all of the after-tax income will accrue to the foreign FTAA contractor, as the government effectively
receives a significant portion thereof.

Second, the foreign contractors can hardly "repatriate the entire after-tax income to their home
countries." Even a bit of knowledge of corporate finance will show that it will be impossible to maintain a
business as a "going concern" if the entire "net profit" earned in any particular year will be taken out and
repatriated. The "net income" figure reflected in the bottom line is a mere accounting figure not necessarily
corresponding to cash in the bank, or other quick assets. In order to produce and set aside cash in an
amount equivalent to the bottom line figure, one may need to sell off assets or immediately collect
receivables or liquidate short-term investments; but doing so may very likely disrupt normal business
operations.

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In terms of cash flows, the funds corresponding to the net income as of a particular point in time are actually
in usein the normal course of business operations. Pulling out such net income disrupts the cash flows and
cash position of the enterprise and, depending on the amount being taken out, could seriously cripple or
endanger the normal operations and financial health of the business enterprise. In short, no sane business
person, concerned with maintaining the mining enterprise as a going concern and keeping a foothold
in its market, can afford to repatriate the entire after-tax income to the home country.

The State's Receipt of Sixty

Percent of an FTAA Contractor's
After-Tax Income Not Mandatory

We now come to the next objection which runs this way: In FTAAs with a foreign contractor, the State must
receive at least 60 percent of the after-tax income from the exploitation of its mineral resources. This share is
the equivalent of the constitutional requirement that at least 60 percent of the capital, and hence 60 percent
of the income, of mining companies should remain in Filipino hands.

First, we fail to see how we can properly conclude that the Constitution mandates the State to extract at least
60 percent of the after-tax income from a mining company run by a foreign contractor. The argument is that
the Charter requires the State's partner in a co-production agreement, joint venture agreement or MPSA to
be a Filipino corporation (at least 60 percent owned by Filipino citizens).

We question the logic of this reasoning, premised on a supposedly parallel or analogous situation. We are,
after all, dealing with an essentially different equation, one that involves different elements. The Charter did
not intend to fix an iron-clad rule on the 60 percent share, applicable to all situations at all times and
in all circumstances.If ever such was the intention of the framers, they would have spelt it out in black and
white. Verba legis will serve to dispel unwarranted and untenable conclusions.

Second, if we would bother to do the math, we might better appreciate the impact (and reasonableness) of
what we are demanding of the foreign contractor. Let us use a simplified illustration. Let us base it on gross
revenues of, say, P500. After deducting operating expenses, but prior to income tax, suppose a mining firm
makes a taxable incomeof P100. A corporate income tax of 32 percent results in P32 of taxable income
going to the government, leaving the mining firm with P68. Government then takes 60 percent thereof,
equivalent to P40.80, leaving only P27.20 for the mining firm.

At this point the government has pocketed P32.00 plus P40.80, or a total of P72.80 for every P100 of taxable
income, leaving the mining firm with only P27.20. But that is not all. The government has also taken 2
percent excise tax "off the top," equivalent to another P10. Under the minimum 60 percent proposal, the
government nets around P82.80 (not counting other taxes, duties, fees and charges) from a taxable income
of P100 (assuming gross revenues of P500, for purposes of illustration). On the other hand, the foreign
contractor, which provided all the capital, equipment and labor, and took all the entrepreneurial risks --
receives P27.20. One cannot but wonder whether such a distribution is even remotely equitable and
reasonable, considering the nature of the mining business. The amount of P82.80 out of P100.00 is really a
lot – it does not matter that we call part of it excise tax or income tax, and another portion thereof income
from exploitation of mineral resources. Some might think it wonderful to be able to take the lion's share of the
benefits. But we have to ask ourselves if we are really serious in attracting the investments that are the

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indispensable and key element in generating the monetary benefits of which we wish to take the lion's
share. Fairness is a credo not only in law, but also in business.

Third, the 60 percent rule in the petroleum industry cannot be insisted upon at all times in the mining
business. The reason happens to be the fact that in petroleum operations, the bulk of expenditures is in
exploration, but once the contractor has found and tapped into the deposit, subsequent investments and
expenditures are relatively minimal. The crude (or gas) keeps gushing out, and the work entailed is just a
matter of piping, transporting and storing. Not so in mineral mining. The ore body does not pop out on its
own. Even after it has been located, the contractor must continually invest in machineries and expend funds
to dig and build tunnels in order to access and extract the minerals from underneath hundreds of tons of
earth and rock.

As already stated, the numerous intrinsic differences involved in their respective operations and
requirements, cost structures and investment needs render it highly inappropriate to use petroleum
operations FTAAs as benchmarks for mining FTAAs. Verily, we cannot just ignore the realities of
the distinctly different situations and stubbornly insist on the "minimum 60 percent."

The Mining and the Oil Industries

Different From Each Other

To stress, there is no independent showing that the taking of at least a 60 percent share in the after-tax
income of a mining company operated by a foreign contractor is fair and reasonable under most if not all
circumstances. The fact that some petroleum companies like Shell acceded to such percentage of
sharing does not ipso facto mean that it is per se reasonable and applicable to non-petroleum situations (that
is, mining companies) as well. We can take judicial notice of the fact that there are, after all, numerous
intrinsic differences involved in their respective operations and equipment or technological requirements,
costs structures and capital investment needs, and product pricing and markets.

There is no showing, for instance, that mining companies can readily cope with a 60 percent government
share in the same way petroleum companies apparently can. What we have is a suggestion to enforce the
60 percent quota on the basis of a disjointed analogy. The only factor common to the two disparate situations
is the extraction of natural resources.

Indeed, we should take note of the fact that Congress made a distinction between mining firms and
petroleum companies. In Republic Act No. 7729 -- "An Act Reducing the Excise Tax Rates on Metallic and
Non-Metallic Minerals and Quarry Resources, Amending for the Purpose Section 151(a) of the National
Internal Revenue Code, as amended" -- the lawmakers fixed the excise tax rate on metallic and non-metallic
minerals at two percent of the actual market value of the annual gross output at the time of removal.
However, in the case of petroleum, the lawmakers set the excise tax rate for the first taxable sale at fifteen
percent of the fair international market price thereof.

There must have been a very sound reason that impelled Congress to impose two very dissimilar excise tax
rate. We cannot assume, without proof, that our honorable legislators acted arbitrarily, capriciously and
whimsically in this instance. We cannot just ignore the reality of two distinctly different situations and
stubbornly insist on going "minimum 60 percent."

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To repeat, the mere fact that gas and oil exploration contracts grant the State 60 percent of the net revenues
does not necessarily imply that mining contracts should likewise yield a minimum of 60 percent for the
State. Jumping to that erroneous conclusion is like comparing apples with oranges. The exploration,
development and utilization of gas and oil are simply different from those of mineral resources.

To stress again, the main risk in gas and oil is in the exploration. But once oil in commercial quantities is
struck and the wells are put in place, the risk is relatively over and black gold simply flows out continuously
with comparativelyless need for fresh investments and technology.

On the other hand, even if minerals are found in viable quantities, there is still need for continuous
fresh capital and expertise to dig the mineral ores from the mines. Just because deposits of mineral ores are
found in one area is no guarantee that an equal amount can be found in the adjacent areas. There are simply
continuing risks and need for more capital, expertise and industry all the time.

Note, however, that the indirect benefits -- apart from the cash revenues -- are much more in the mineral
industry. As mines are explored and extracted, vast employment is created, roads and other infrastructure
are built, and other multiplier effects arise. On the other hand, once oil wells start producing, there is less
need for employment. Roads and other public works need not be constructed continuously. In fine, there is
no basis for saying that government revenues from the oil industry and from the mineral industries are to be
identical all the time.

Fourth, to our mind, the proffered "minimum 60 percent" suggestion tends to limit the flexibility and tie the
hands of government, ultimately hampering the country's competitiveness in the international market, to the
detriment of the Filipino people. This "you-have-to-give-us-60-percent-of-after-tax-income-or-we-don't-do-
business-with-you" approach is quite perilous. True, this situation may not seem too unpalatable to the
foreign contractor during good years, when international market prices are up and the mining firm manages
to keep its costs in check. However, under unfavorable economic and business conditions, with costs
spiraling skywards and minerals prices plummeting, a mining firm may consider itself lucky to make just
minimal profits.

The inflexible, carved-in-granite demand for a 60 percent government share may spell the end of the mining
venture, scare away potential investors, and thereby further worsen the already dismal economic scenario.
Moreover, such an unbending or unyielding policy prevents the government from responding appropriately to
changing economic conditions and shifting market forces. This inflexibility further renders our country less
attractive as an investment option compared with other countries.

And fifth, for this Court to decree imperiously that the government's share should be not less than 60 percent
of the after-tax income of FTAA contractors at all times is nothing short of dictating upon the government.
The result, ironically, is that the State ends up losing control. To avoid compromising the State's full control
and supervision over the exploitation of mineral resources, this Court must back off from insisting upon a
"minimum 60 percent" rule. It is sufficient that the State has the power and means, should it so decide, to get
a 60 percent share (or more) in the contractor's net mining revenues or after-tax income, or whatever other
basis the government may decide to use in reckoning its share. It is not necessary for it to do so in every
case, regardless of circumstances.

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In fact, the government must be trusted, must be accorded the liberty and the utmost flexibility to deal,
negotiate and transact with contractors and third parties as it sees fit; and upon terms that it ascertains to be
most favorable or most acceptable under the circumstances, even if it means agreeing to less than 60
percent. Nothing must prevent the State from agreeing to a share less than that, should it be deemed fit;
otherwise the State will be deprived of full control over mineral exploitation that the Charter has vested in it.

To stress again, there is simply no constitutional or legal provision fixing the minimum share of the
government in an FTAA at 60 percent of the net profit. For this Court to decree such minimum is to wade
into judicial legislation, and thereby inordinately impinge on the control power of the State. Let it be clear: the
Court is not against the grant of more benefits to the State; in fact, the more the better. If during the FTAA
negotiations, the President can secure 60 percent,78 or even 90 percent, then all the better for our people.
But, if under the peculiar circumstances of a specific contract, the President could secure only 50 percent or
55 percent, so be it. Needless to say, the President will have to report (and be responsible for) the specific
FTAA to Congress, and eventually to the people.

Finally, if it should later be found that the share agreed to is grossly disadvantageous to the government, the
officials responsible for entering into such a contract on its behalf will have to answer to the courts for their
malfeasance. And the contract provision voided. But this Court would abuse its own authority should it force
the government's hand to adopt the 60 percent demand of some of our esteemed colleagues.

Capital and Expertise Provided,

Yet All Risks Assumed by Contractor

Here, we will repeat what has not been emphasized and appreciated enough: the fact that the contractor in
an FTAA provides all the needed capital, technical and managerial expertise, and technology required to
undertake the project.

In regard to the WMCP FTAA, the then foreign-owned WMCP as contractor committed, at the very outset, to
make capital investments of up to US$50 million in that single mining project. WMCP claims to have already
poured in well over P800 million into the country as of February 1998, with more in the pipeline. These
resources, valued in the tens or hundreds of millions of dollars, are invested in a mining project that provides
no assurance whatsoever that any part of the investment will be ultimately recouped.

At the same time, the contractor must comply with legally imposed environmental standards and the social
obligations, for which it also commits to make significant expenditures of funds. Throughout, the contractor
assumes all the risks79 of the business, as mentioned earlier. These risks are indeed very high, considering
that the rate of success in exploration is extremely low. The probability of finding any mineral or petroleum in
commercially viable quantities is estimated to be about 1:1,000 only. On that slim chance rides the
contractor's hope of recouping investments and generating profits. And when the contractor has recouped its
initial investments in the project, the government share increases to sixty percent of net benefits -- without
the State ever being in peril of incurring costs, expenses and losses.

And even in the worst possible scenario -- an absence of commercial quantities of minerals to justify
development -- the contractor would already have spent several million pesos for exploration works, before
arriving at the point in which it can make that determination and decide to cut its losses. In fact, during

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the first year alone of the exploration period, the contractor was already committed to spend not less
than P24 million. The FTAA therefore clearly ensures benefits for the local economy, courtesy of the
contractor.

All in all, this setup cannot be regarded as disadvantageous to the State or the Filipino people; it
certainly cannot be said to convey beneficial ownership of our mineral resources to foreign
contractors.

Deductions Allowed by the

WMCP FTAA Reasonable

Petitioners question whether the State's weak control might render the sharing arrangements ineffective.
They cite the so-called "suspicious" deductions allowed by the WMCP FTAA in arriving at the net mining
revenue, which is the basis for computing the government share. The WMCP FTAA, for instance, allows
expenditures for "development within and outside the Contract Area relating to the Mining
Operations,"80 "consulting fees incurred both inside and outside the Philippines for work related directly to the
Mining Operations,"81 and "the establishment and administration of field offices including administrative
overheads incurred within and outside the Philippines which are properly allocatable to the Mining
Operations and reasonably related to the performance of the Contractor's obligations and exercise of its
rights under this Agreement."82

It is quite well known, however, that mining companies do perform some marketing activities abroad in
respect of selling their mineral products and by-products. Hence, it would not be improper to allow the
deduction of reasonable consulting fees incurred abroad, as well as administrative expenses and overheads
related to marketing offices also located abroad -- provided that these deductions are directly related or
properly allocatable to the mining operations and reasonably related to the performance of the contractor's
obligations and exercise of its rights. In any event, more facts are needed. Until we see how these provisions
actually operate, mere "suspicions" will not suffice to propel this Court into taking action.

Section 7.9 of the WMCP FTAA

Invalid and Disadvantageous

Having defended the WMCP FTAA, we shall now turn to two defective provisos. Let us start with Section 7.9
of the WMCP FTAA. While Section 7.7 gives the government a 60 percent share in the net mining revenues
of WMCP from the commencement of commercial production, Section 7.9 deprives the government of part or
all of the said 60 percent. Under the latter provision, should WMCP's foreign shareholders -- who originally
owned 100 percent of the equity -- sell 60 percent or more of its outstanding capital stock to a Filipino citizen
or corporation, the State loses its right to receive its 60 percent share in net mining revenues under Section
7.7.

Section 7.9 provides:

The percentage of Net Mining Revenues payable to the Government pursuant to Clause 7.7 shall
be reduced by 1percent of Net Mining Revenues for every 1percent ownership interest in the
Contractor (i.e., WMCP) held by a Qualified Entity.83

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Evidently, what Section 7.7 grants to the State is taken away in the next breath by Section 7.9 without any
offsetting compensation to the State. Thus, in reality, the State has no vested right to receive any income
from the FTAA for the exploitation of its mineral resources. Worse, it would seem that what is given to the
State in Section 7.7 is by mere tolerance of WMCP's foreign stockholders, who can at any time cut off the
government's entire 60 percent share. They can do so by simply selling 60 percent of WMCP's outstanding
capital stock to a Philippine citizen or corporation. Moreover, the proceeds of such sale will of course accrue
to the foreign stockholders of WMCP, not to the State.

The sale of 60 percent of WMCP's outstanding equity to a corporation that is 60 percent Filipino-owned and
40 percent foreign-owned will still trigger the operation of Section 7.9. Effectively, the State will lose its right
to receive all 60 percent of the net mining revenues of WMCP; and foreign stockholders will own beneficially
up to 64 percent of WMCP, consisting of the remaining 40 percent foreign equity therein, plus the 24 percent
pro-rata share in the buyer-corporation.84

In fact, the January 23, 2001 sale by WMCP's foreign stockholder of the entire outstanding equity in WMCP
to Sagittarius Mines, Inc. -- a domestic corporation at least 60 percent Filipino owned -- may be deemed to
have automatically triggered the operation of Section 7.9, without need of further action by any party, and
removed the State's right to receive the 60 percent share in net mining revenues.

At bottom, Section 7.9 has the effect of depriving the State of its 60 percent share in the net mining revenues
of WMCP without any offset or compensation whatsoever. It is possible that the inclusion of the offending
provision was initially prompted by the desire to provide some form of incentive for the principal foreign
stockholder in WMCP to eventually reduce its equity position and ultimately divest in favor of Filipino citizens
and corporations. However, as finally structured, Section 7.9 has the deleterious effect of depriving
government of the entire 60 percent share in WMCP's net mining revenues, without any form of
compensation whatsoever. Such an outcome is completely unacceptable.

The whole point of developing the nation's natural resources is to benefit the Filipino people, future
generations included. And the State as sovereign and custodian of the nation's natural wealth is mandated to
protect, conserve, preserve and develop that part of the national patrimony for their benefit. Hence, the
Charter lays great emphasis on "real contributions to the economic growth and general welfare of the
country"85 as essential guiding principles to be kept in mind when negotiating the terms and conditions of
FTAAs.

Earlier, we held (1) that the State must be accorded the liberty and the utmost flexibility to deal, negotiate
and transact with contractors and third parties as it sees fit, and upon terms that it ascertains to be most
favorable or most acceptable under the circumstances, even if that should mean agreeing to less than 60
percent; (2) that it is not necessary for the State to extract a 60 percent share in every case and regardless of
circumstances; and (3) that should the State be prevented from agreeing to a share less than 60 percent as it
deems fit, it will be deprived of the full control over mineral exploitation that the Charter has vested in it.

That full control is obviously not an end in itself; it exists and subsists precisely because of the need to serve
and protect the national interest. In this instance, national interest finds particular application in the protection
of the national patrimony and the development and exploitation of the country's mineral resources for the

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benefit of the Filipino people and the enhancement of economic growth and the general welfare of the
country. Undoubtedly, such full control can be misused and abused, as we now witness.

Section 7.9 of the WMCP FTAA effectively gives away the State's share of net mining revenues (provided for
in Section 7.7) without anything in exchange. Moreover, this outcome constitutes unjust enrichment on the
part of the local and foreign stockholders of WMCP. By their mere divestment of up to 60 percent equity in
WMCP in favor of Filipino citizens and/or corporations, the local and foreign stockholders get a windfall. Their
share in the net mining revenues of WMCP is automatically increased, without their having to pay the
government anything for it. In short, the provision in question is without a doubt grossly disadvantageous to
the government, detrimental to the interests of the Filipino people, and violative of public policy.

Moreover, it has been reiterated in numerous decisions86 that the parties to a contract may establish any
agreements, terms and conditions that they deem convenient; but these should not be contrary to law,
morals, good customs, public order or public policy.87 Being precisely violative of anti-graft provisions and
contrary to public policy, Section 7.9 must therefore be stricken off as invalid.

Whether the government officials concerned acceded to that provision by sheer mistake or with full
awareness of the ill consequences, is of no moment. It is hornbook doctrine that the principle of estoppel
does not operate against the government for the act of its agents,88 and that it is never estopped by any
mistake or error on their part.89 It is therefore possible and proper to rectify the situation at this time.
Moreover, we may also say that the FTAA in question does not involve mere contractual rights; being
impressed as it is with public interest, the contractual provisions and stipulations must yield to the common
good and the national interest.

Since the offending provision is very much separable90 from Section 7.7 and the rest of the FTAA, the
deletion of Section 7.9 can be done without affecting or requiring the invalidation of the WMCP FTAA itself.
Such a deletion will preserve for the government its due share of the benefits. This way, the mandates of the
Constitution are complied with and the interests of the government fully protected, while the business
operations of the contractor are not needlessly disrupted.

Section 7.8(e) of the WMCP FTAA

Also Invalid and Disadvantageous

Section 7.8(e) of the WMCP FTAA is likewise invalid. It provides thus:

"7.8 The Government Share shall be deemed to include all of the following sums:

"(a) all Government taxes, fees, levies, costs, imposts, duties and royalties including
excise tax, corporate income tax, customs duty, sales tax, value added tax, occupation
and regulatory fees, Government controlled price stabilization schemes, any other form
of Government backed schemes, any tax on dividend payments by the Contractor or its
Affiliates in respect of revenues from the Mining Operations and any tax on interest on
domestic and foreign loans or other financial arrangements or accommodations,
including loans extended to the Contractor by its stockholders;

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 "(b) any payments to local and regional government, including taxes, fees, levies, costs,
imposts, duties, royalties, occupation and regulatory fees and infrastructure contributions;

"(c) any payments to landowners, surface rights holders, occupiers, indigenous people or
Claimowners;

"(d) costs and expenses of fulfilling the Contractor's obligations to contribute to national
development in accordance with Clause 10.1(i) (1) and 10.1(i) (2);

"(e) an amount equivalent to whatever benefits that may be extended in the future by the
Government to the Contractor or to financial or technical assistance agreement
contractors in general;

"(f) all of the foregoing items which have not previously been offset against the
Government Share in an earlier Fiscal Year, adjusted for inflation." (underscoring
supplied)

Section 7.8(e) is out of place in the FTAA. It makes no sense why, for instance, money spent by the
government for the benefit of the contractor in building roads leading to the mine site should still be
deductible from the State's share in net mining revenues. Allowing this deduction results in benefiting the
contractor twice over. It constitutes unjust enrichment on the part of the contractor at the expense of the
government, since the latter is effectively being made to pay twice for the same item.91 For being grossly
disadvantageous and prejudicial to the government and contrary to public policy, Section 7.8(e) is
undoubtedly invalid and must be declared to be without effect. Fortunately, this provision can also easily be
stricken off without affecting the rest of the FTAA.

Nothing Left Over

After Deductions?

In connection with Section 7.8, an objection has been raised: Specified in Section 7.8 are numerous items of
deduction from the State's 60 percent share. After taking these into account, will the State ever receive
anything for its ownership of the mineral resources?

We are confident that under normal circumstances, the answer will be yes. If we examine the various items
of "deduction" listed in Section 7.8 of the WMCP FTAA, we will find that they correspond closely to the
components or elements of the basic government share established in DAO 99-56, as discussed in the
earlier part of this Opinion.

Likewise, the balance of the government's 60 percent share -- after netting out the items of deduction listed in
Section 7.8 --corresponds closely to the additional government share provided for in DAO 99-56 which, we
once again stress, has nothing at all to do with indirect taxes. The Ramos-DeVera paper92 concisely presents
the fiscal contribution of an FTAA under DAO 99-56 in this equation:

Receipts from an FTAA = basic gov't share + add'l gov't share

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Transposed into a similar equation, the fiscal payments system from the WMCP FTAA assumes the following
formulation:

Government's 60 percent share in net mining revenues of WMCP = items listed in Sec. 7.8 of the
FTAA + balance of Gov't share, payable 4 months from the end of the fiscal year

It should become apparent that the fiscal arrangement under the WMCP FTAA is very similar to that under
DAO 99-56, with the "balance of government share payable 4 months from end of fiscal year" being the
equivalent of the additional government share computed in accordance with the "net-mining-revenue-
based option" under DAO 99-56, as discussed above. As we have emphasized earlier, we find each of the
three options for computing the additional government share -- as presented in DAO 99-56 -- to be sound
and reasonable.

We therefore conclude that there is nothing inherently wrong in the fiscal regime of the WMCP FTAA,
and certainly nothing to warrant the invalidation of the FTAA in its entirety.

Section 3.3 of the WMCP

FTAA Constitutional

Section 3.3 of the WMCP FTAA is assailed for violating supposed constitutional restrictions on the term of
FTAAs. The provision in question reads:

"3.3 This Agreement shall be renewed by the Government for a further period of twenty-five (25)
years under the same terms and conditions provided that the Contractor lodges a request for
renewal with the Government not less than sixty (60) days prior to the expiry of the initial term of
this Agreement and provided that the Contractor is not in breach of any of the requirements of this
Agreement."

Allegedly, the above provision runs afoul of Section 2 of Article XII of the 1987 Constitution, which states:

"Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception of agricultural lands, all other natural
resources shall not be alienated. The exploration, development and utilization of natural resources
shall be under the full control and supervision of the State. The State may directly undertake such
activities, or it may enter into co-production, joint venture or production-sharing agreements with
Filipino citizens or corporations or associations at least sixty per centum of whose capital is owned
by such citizens. Such agreements may be for a period not exceeding twenty-five years,
renewable for not more than twenty-five years, and under such terms and conditions as
may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial
uses other than the development of water power, beneficial use may be the measure and limit of
the grant.

"The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and
exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

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 "The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as
well as cooperative fish farming, with priority to subsistence fishermen and fish-workers in rivers,
lakes, bays and lagoons.

"The President may enter into agreements with foreign-owned corporations involving either
technical or financial assistance for large-scale exploration, development, and utilization of
minerals, petroleum, and other mineral oils according to the general terms and conditions provided
by law, based on real contributions to the economic growth and general welfare of the country. In
such agreements, the State shall promote the development and use of local scientific and technical
resources.

"The President shall notify the Congress of every contract entered into in accordance with this
provision, within thirty days from its execution."93

We hold that the term limitation of twenty-five years does not apply to FTAAs. The reason is that the above
provision is found within paragraph 1 of Section 2 of Article XII, which refers to mineral agreements -- co-
production agreements, joint venture agreements and mineral production-sharing agreements -- which the
government may enter into with Filipino citizens and corporations, at least 60 percent owned by Filipino
citizens. The word "such" clearly refers to these three mineral agreements -- CPAs, JVAs and MPSAs -- not
to FTAAs.

Specifically, FTAAs are covered by paragraphs 4 and 5 of Section 2 of Article XII of the Constitution. It will be
noted that there are no term limitations provided for in the said paragraphs dealing with FTAAs. This shows
that FTAAs are sui generis, in a class of their own. This omission was obviously a deliberate move on the
part of the framers. They probably realized that FTAAs would be different in many ways from MPSAs, JVAs
and CPAs. The reason the framers did not fix term limitations applicable to FTAAs is that they preferred to
leave the matter to the discretion of the legislature and/or the agencies involved in implementing the laws
pertaining to FTAAs, in order to give the latter enough flexibility and elbow room to meet changing
circumstances.

Note also that, as previously stated, the exploratory phrases of an FTAA lasts up to eleven years. Thereafter,
a few more years would be gobbled up in start-up operations. It may take fifteen years before an FTAA
contractor can start earning profits. And thus, the period of 25 years may really be short for an FTAA.
Consider too that in this kind of agreement, the contractor assumes all entrepreneurial risks. If no commercial
quantities of minerals are found, the contractor bears all financial losses. To compensate for this long
gestation period and extra business risks, it would not be totally unreasonable to allow it to continue EDU
activities for another twenty five years.

In any event, the complaint is that, in essence, Section 3.3 gives the contractor the power to compel the
government to renew the WMCP FTAA for another 25 years and deprives the State of any say on whether to
renew the contract.

While we agree that Section 3.3 could have been worded so as to prevent it from favoring the contractor, this
provision does not violate any constitutional limits, since the said term limitation does not apply at all to

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FTAAs. Neither can the provision be deemed in any manner to be illegal, as no law is being violated thereby.
It is certainly not illegal for the government to waive its option to refuse the renewal of a commercial contract.

Verily, the government did not have to agree to Section 3.3. It could have said "No" to the stipulation, but it
did not. It appears that, in the process of negotiations, the other contracting party was able to convince the
government to agree to the renewal terms. Under the circumstances, it does not seem proper for this Court
to intervene and step in to undo what might have perhaps been a possible miscalculation on the part of the
State. If government believes that it is or will be aggrieved by the effects of Section 3.3, the remedy is the
renegotiation of the provision in order to provide the State the option to not renew the FTAA.

Financial Benefits for Foreigners

Not Forbidden by the Constitution

Before leaving this subject matter, we find it necessary for us to rid ourselves of the false belief that the
Constitution somehow forbids foreign-owned corporations from deriving financial benefits from the
development of our natural or mineral resources.

The Constitution has never prohibited foreign corporations from acquiring and enjoying "beneficial interest" in
the development of Philippine natural resources. The State itself need not directly undertake exploration,
development, and utilization activities. Alternatively, the Constitution authorizes the government to enter into
joint venture agreements (JVAs), co-production agreements (CPAs) and mineral production sharing
agreements (MPSAs) with contractors who are Filipino citizens or corporations that are at least 60 percent
Filipino-owned. They may do the actual "dirty work" -- the mining operations.

In the case of a 60 percent Filipino-owned corporation, the 40 percent individual and/or corporate non-
Filipino stakeholders obviously participate in the beneficial interest derived from the development and
utilization of our natural resources. They may receive by way of dividends, up to 40 percent of the
contractor's earnings from the mining project. Likewise, they may have a say in the decisions of the board of
directors, since they are entitled to representation therein to the extent of their equity participation, which the
Constitution permits to be up to 40 percent of the contractor's equity. Hence, the non-Filipino stakeholders
may in that manner also participate in the management of the contractor's natural resource development
work. All of this is permitted by our Constitution, for any natural resource, and without limitation even in
regard to the magnitude of the mining project or operations (see paragraph 1 of Section 2 of Article XII).

It is clear, then, that there is nothing inherently wrong with or constitutionally objectionable about the idea of
foreign individuals and entities having or enjoying "beneficial interest" in -- and participating in the
management of operations relative to -- the exploration, development and utilization of our natural resources.

FTAA More Advantageous

Than Other Schemes
Like CPA, JVA and MPSA

A final point on the subject of beneficial interest. We believe the FTAA is a more advantageous proposition
for the government as compared with other agreements permitted by the Constitution. In a CPA that the

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government enters into with one or more contractors, the government shall provide inputs to the mining
operations other than the mineral resource itself.94

In a JVA, a JV company is organized by the government and the contractor, with both parties having equity
shares (investments); and the contractor is granted the exclusive right to conduct mining operations and to
extract minerals found in the area.95 On the other hand, in an MPSA, the government grants the contractor
the exclusive right to conduct mining operations within the contract area and shares in the gross output; and
the contractor provides the necessary financing, technology, management and manpower.

The point being made here is that, in two of the three types of agreements under consideration,
the government has to ante up some risk capital for the enterprise. In other words, government funds (public
moneys) are withdrawn from other possible uses, put to work in the venture and placed at risk in case the
venture fails. This notwithstanding, management and control of the operations of the enterprise are -- in all
three arrangements -- in the hands of the contractor, with the government being mainly a silent partner. The
three types of agreement mentioned above apply to any natural resource, without limitation and regardless of
the size or magnitude of the project or operations.

In contrast to the foregoing arrangements, and pursuant to paragraph 4 of Section 2 of Article XII, the FTAA
is limited to large-scale projects and only for minerals, petroleum and other mineral oils. Here, the
Constitution removes the 40 percent cap on foreign ownership and allows the foreign corporation to own up
to 100 percent of the equity. Filipino capital may not be sufficient on account of the size of the project, so the
foreign entity may have to ante up all the risk capital.

Correlatively, the foreign stakeholder bears up to 100 percent of the risk of loss if the project fails. In respect
of the particular FTAA granted to it, WMCP (then 100 percent foreign owned) was responsible, as contractor,
for providing the entire equity, including all the inputs for the project. It was to bear 100 percent of the risk of
loss if the project failed, but its maximum potential "beneficial interest" consisted only of 40 percent of the net
beneficial interest, because the other 60 percent is the share of the government, which will never be exposed
to any risk of loss whatsoever.

In consonance with the degree of risk assumed, the FTAA vested in WMCP the day-to-day management of
the mining operations. Still such management is subject to the overall control and supervision of the State in
terms of regular reporting, approvals of work programs and budgets, and so on.

So, one needs to consider in relative terms, the costs of inputs for, degree of risk attendant to, and benefits
derived or to be derived from a CPA, a JVA or an MPSA vis-à-vis those pertaining to an FTAA. It may not be
realistically asserted that the foreign grantee of an FTAA is being unduly favored or benefited as compared
with a foreign stakeholder in a corporation holding a CPA, a JVA or an MPSA. Seen the other way around,
the government is definitely better off with an FTAA than a CPA, a JVA or an MPSA.

Developmental Policy on the Mining Industry

During the Oral Argument and in their Final Memorandum, petitioners repeatedly urged the Court to consider
whether mining as an industry and economic activity deserved to be accorded priority, preference and
government support as against, say, agriculture and other activities in which Filipinos and the Philippines

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may have an "economic advantage." For instance, a recent US study96 reportedly examined the economic
performance of all local US counties that were dependent on mining and 20 percent of whose labor earnings
between 1970 and 2000 came from mining enterprises.

The study -- covering 100 US counties in 25 states dependent on mining -- showed that per capita income
grew about 30 percent less in mining-dependent communities in the 1980s and 25 percent less for the entire
period 1980 to 2000; the level of per capita income was also lower. Therefore, given the slower rate of
growth, the gap between these and other local counties increased.

Petitioners invite attention to the OXFAM America Report's warning to developing nations that mining brings
with it serious economic problems, including increased regional inequality, unemployment and poverty. They
also cite the final report97 of the Extractive Industries Review project commissioned by the World Bank (the
WB-EIR Report), which warns of environmental degradation, social disruption, conflict, and uneven sharing
of benefits with local communities that bear the negative social and environmental impact. The Report
suggests that countries need to decide on the best way to exploit their natural resources, in order to
maximize the value added from the development of their resources and ensure that they are on the path to
sustainable development once the resources run out.

Whatever priority or preference may be given to mining vis-à-vis other economic or non-economic activities is
a question of policy that the President and Congress will have to address; it is not for this Court to
decide. This Court declares what the Constitution and the laws say, interprets only when necessary, and
refrains from delving into matters of policy.

Suffice it to say that the State control accorded by the Constitution over mining activities assures a proper
balancing of interests. More pointedly, such control will enable the President to demand the best mining
practices and the use of the best available technologies to protect the environment and to rehabilitate mined-
out areas. Indeed, under the Mining Law, the government can ensure the protection of the environment
during and after mining. It can likewise provide for the mechanisms to protect the rights of indigenous
communities, and thereby mold a more socially-responsive, culturally-sensitive and sustainable mining
industry.

Early on during the launching of the Presidential Mineral Industry Environmental Awards on February 6,
1997, then President Fidel V. Ramos captured the essence of balanced and sustainable mining in these
words:

"Long term, high profit mining translates into higher revenues for government, more decent jobs for
the population, more raw materials to feed the engines of downstream and allied industries, and
improved chances of human resource and countryside development by creating self-reliant
communities away from urban centers.

xxxxxxxxx

"Against a fragile and finite environment, it is sustainability that holds the key. In sustainable
mining, we take a middle ground where both production and protection goals are balanced, and
where parties-in-interest come to terms."

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Neither has the present leadership been remiss in addressing the concerns of sustainable mining operations.
Recently, on January 16, 2004 and April 20, 2004, President Gloria Macapagal Arroyo issued Executive
Orders Nos. 270 and 270-A, respectively, "to promote responsible mineral resources exploration,
development and utilization, in order to enhance economic growth, in a manner that adheres to the principles
of sustainable development and with due regard for justice and equity, sensitivity to the culture of the Filipino
people and respect for Philippine sovereignty."98

REFUTATION OF DISSENTS

The Court will now take up a number of other specific points raised in the dissents of Justices Carpio and
Morales.

1. Justice Morales introduced us to Hugh Morgan, former president and chief executive officer of Western
Mining Corporation (WMC) and former president of the Australian Mining Industry Council, who spearheaded
the vociferous opposition to the filing by aboriginal peoples of native title claims against mining companies in
Australia in the aftermath of the landmark Mabo decision by the Australian High Court. According to sources
quoted by our esteemed colleague, Morgan was also a racist and a bigot. In the course of
protesting Mabo, Morgan allegedly uttered derogatory remarks belittling the aboriginal culture and race.

An unwritten caveat of this introduction is that this Court should be careful not to permit the entry of the likes
of Hugh Morgan and his hordes of alleged racist-bigots at WMC. With all due respect, such scare tactics
should have no place in the discussion of this case. We are deliberating on the constitutionality of RA 7942,
DAO 96-40 and the FTAA originally granted to WMCP, which had been transferred to Sagittarius Mining, a
Filipino corporation. We are not discussing the apparition of white Anglo-Saxon racists/bigots massing at our
gates.

2. On the proper interpretation of the phrase agreements involving either technical or financial
assistance, Justice Morales points out that at times we "conveniently omitted" the use of the
disjunctive either…or, which according to her denotes restriction; hence the phrase must be deemed to
connote restriction and limitation.

But, as Justice Carpio himself pointed out during the Oral Argument, the disjunctive phrase either technical
or financial assistance would, strictly speaking, literally mean that a foreign contractor may provide only one
or the other, but not both. And if both technical and financial assistance were required for a project, the State
would have to deal with at least two different foreign contractors -- one for financial and the other for
technical assistance. And following on that, a foreign contractor, though very much qualified to provide both
kinds of assistance, would nevertheless be prohibited from providing one kind as soon as it shall have
agreed to provide the other.

But if the Court should follow this restrictive and literal construction, can we really find two (or more)
contractors who are willing to participate in one single project -- one to provide the "financial assistance" only
and the other the "technical assistance" exclusively; it would be excellent if these two or more contractors
happen to be willing and are able to cooperate and work closely together on the same project (even if they
are otherwise competitors). And it would be superb if no conflicts would arise between or among them in the
entire course of the contract. But what are the chances things will turn out this way in the real world? To think

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that the framers deliberately imposed this kind of restriction is to say that they were either exceedingly
optimistic, or incredibly naïve. This begs the question -- What laudable objective or purpose could possibly
be served by such strict and restrictive literal interpretation?

3. Citing Oposa v. Factoran Jr., Justice Morales claims that a service contract is not a contract or property
right which merits protection by the due process clause of the Constitution, but merely a license or privilege
which may be validly revoked, rescinded or withdrawn by executive action whenever dictated by public
interest or public welfare.

Oposa cites Tan v. Director of Forestry and Ysmael v. Deputy Executive Secretary as authority. The latter
cases dealt specifically with timber licenses only. Oposa allegedly reiterated that a license is merely a
permit or privilege to do what otherwise would be unlawful, and is not a contract between the authority,
federal, state or municipal, granting it and the person to whom it is granted; neither is it property or a property
right, nor does it create a vested right; nor is it taxation. Thus this Court held that the granting of license does
not create irrevocable rights, neither is it property or property rights.

Should Oposa be deemed applicable to the case at bar, on the argument that natural resources are also
involved in this situation? We do not think so. A grantee of a timber license, permit or license agreement gets
to cut the timber already growing on the surface; it need not dig up tons of earth to get at the logs. In a
logging concession, the investment of the licensee is not as substantial as the investment of a large-scale
mining contractor. If a timber license were revoked, the licensee packs up its gear and moves to a new area
applied for, and starts over; what it leaves behind are mainly the trails leading to the logging site.

In contrast, the mining contractor will have sunk a great deal of money (tens of millions of dollars) into the
ground, so to speak, for exploration activities, for development of the mine site and infrastructure, and for the
actual excavation and extraction of minerals, including the extensive tunneling work to reach the ore body.
The cancellation of the mining contract will utterly deprive the contractor of its investments (i.e., prevent
recovery of investments), most of which cannot be pulled out.

To say that an FTAA is just like a mere timber license or permit and does not involve contract or property
rights which merit protection by the due process clause of the Constitution, and may therefore be revoked or
cancelled in the blink of an eye, is to adopt a well-nigh confiscatory stance; at the very least, it is downright
dismissive of the property rights of businesspersons and corporate entities that have investments in the
mining industry, whose investments, operations and expenditures do contribute to the general welfare of the
people, the coffers of government, and the strength of the economy. Such a pronouncement will surely
discourage investments (local and foreign) which are critically needed to fuel the engine of economic growth
and move this country out of the rut of poverty. In sum, Oposa is not applicable.

4. Justice Morales adverts to the supposedly "clear intention" of the framers of the Constitution to reserve our
natural resources exclusively for the Filipino people. She then quoted from the records of the ConCom
deliberations a passage in which then Commissioner Davide explained his vote, arguing in the process that
aliens ought not be allowed to participate in the enjoyment of our natural resources. One passage does not
suffice to capture the tenor or substance of the entire extensive deliberations of the commissioners, or to
reveal the clear intention of the framers as a group. A re-reading of the entire deliberations (quoted here
earlier) is necessary if we are to understand the true intent of the framers.

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5. Since 1935, the Filipino people, through their Constitution, have decided that the retardation or delay in the
exploration, development or utilization of the nation's natural resources is merely secondary to the protection
and preservation of their ownership of the natural resources, so says Justice Morales, citing Aruego. If it is
true that the framers of the 1987 Constitution did not care much about alleviating the retardation or delay in
the development and utilization of our natural resources, why did they bother to write paragraph 4 at all?
Were they merely paying lip service to large-scale exploration, development and utilization? They could have
just completely ignored the subject matter and left it to be dealt with through a future constitutional
amendment. But we have to harmonize every part of the Constitution and to interpret each provision in a
manner that would give life and meaning to it and to the rest of the provisions. It is obvious that a literal
interpretation of paragraph 4 will render it utterly inutile and inoperative.

6. According to Justice Morales, the deliberations of the Constitutional Commission do not support our
contention that the framers, by specifying such agreements involving financial or technical assistance,
necessarily gave implied assent to everything that these agreements implicitly entailed, or that could
reasonably be deemed necessary to make them tenable and effective, including management authority in
the day-to-day operations. As proof thereof, she quotes one single passage from the ConCom deliberations,
consisting of an exchange among Commissioners Tingson, Garcia and Monsod.

However, the quoted exchange does not serve to contradict our argument; it even bolsters it. Comm.
Christian Monsod was quoted as saying: "xxx I think we have to make a distinction that it is not really realistic
to say that we will borrow on our own terms. Maybe we can say that we inherited unjust loans, and we would
like to repay these on terms that are not prejudicial to our own growth. But the general statement that we
should only borrow on our own terms is a bit unrealistic." Comm. Monsod is one who knew whereof he
spoke.

7. Justice Morales also declares that the optimal time for the conversion of an FTAA into an MPSA is after
completion of the exploration phase and just before undertaking the development and construction phase, on
account of the fact that the requirement for a minimum investment of $50 million is applicable only during the
development, construction and utilization phase, but not during the exploration phase, when the foreign
contractor need merely comply with minimum ground expenditures. Thus by converting, the foreign
contractor maximizes its profits by avoiding its obligation to make the minimum investment of $50 million.

This argument forgets that the foreign contractor is in the game precisely to make money. In order to come
anywhere near profitability, the contractor must first extract and sell the mineral ore. In order to do that, it
must also develop and construct the mining facilities, set up its machineries and equipment and dig the
tunnels to get to the deposit. The contractor is thus compelled to expend funds in order to make profits. If it
decides to cut back on investments and expenditures, it will necessarily sacrifice the pace of development
and utilization; it will necessarily sacrifice the amount of profits it can make from the mining operations. In
fact, at certain less-than-optimal levels of operation, the stream of revenues generated may not even be
enough to cover variable expenses, let alone overhead expenses; this is a dismal situation anyone would
want to avoid. In order to make money, one has to spend money. This truism applies to the mining industry
as well.

8. Mortgaging the minerals to secure a foreign FTAA contractor's obligations is anomalous, according to
Justice Morales since the contractor was from the beginning obliged to provide all financing needed for the

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mining operations. However, the mortgaging of minerals by the contractor does not necessarily signify that
the contractor is unable to provide all financing required for the project, or that it does not have the financial
capability to undertake large-scale operations. Mortgaging of mineral products, just like the assignment (by
way of security) of manufactured goods and goods in inventory, and the assignment of receivables, is an
ordinary requirement of banks, even in the case of clients with more than sufficient financial resources. And
nowadays, even the richest and best managed corporations make use of bank credit facilities -- it does not
necessarily signify that they do not have the financial resources or are unable to provide the financing on
their own; it is just a manner of maximizing the use of their funds.

9. Does the contractor in reality acquire the surface rights "for free," by virtue of the fact that it is entitled to
reimbursement for the costs of acquisition and maintenance, adjusted for inflation? We think not. The
"reimbursement" is possible only at the end of the term of the contract, when the surface rights will no longer
be needed, and the land previously acquired will have to be disposed of, in which case the contractor gets
reimbursement from the sales proceeds. The contractor has to pay out the acquisition price for the land. That
money will belong to the seller of the land. Only if and when the land is finally sold off will the contractor get
any reimbursement. In other words, the contractor will have been cash-out for the entire duration of the term
of the contract -- 25 or 50 years, depending. If we calculate the cost of money at say 12 percent per annum,
that is the cost or opportunity loss to the contractor, in addition to the amount of the acquisition price. 12
percent per annum for 50 years is 600 percent; this, without any compounding yet. The cost of money is
therefore at least 600 percent of the original acquisition cost; it is in addition to the acquisition cost. "For
free"? Not by a long shot.

10. The contractor will acquire and hold up to 5,000 hectares? We doubt it. The acquisition by the State of
land for the contractor is just to enable the contractor to establish its mine site, build its facilities, establish a
tailings pond, set up its machinery and equipment, and dig mine shafts and tunnels, etc. It is impossible that
the surface requirement will aggregate 5,000 hectares. Much of the operations will consist of the tunneling
and digging underground, which will not require possessing or using any land surface. 5,000 hectares is way
too much for the needs of a mining operator. It simply will not spend its cash to acquire property that it will
not need; the cash may be better employed for the actual mining operations, to yield a profit.

11. Justice Carpio claims that the phrase among other things (found in the second paragraph of Section 81
of the Mining Act) is being incorrectly treated as a delegation of legislative power to the DENR secretary to
issue DAO 99-56 and prescribe the formulae therein on the State's share from mining operations. He adds
that the phrase among other things was not intended as a delegation of legislative power to the DENR
secretary, much less could it be deemed a valid delegation of legislative power, since there is nothing in the
second paragraph of Section 81 which can be said to grant any delegated legislative power to the DENR
secretary. And even if there were, such delegation would be void, for lack of any standards by which the
delegated power shall be exercised.

While there is nothing in the second paragraph of Section 81 which can directly be construed as a delegation
of legislative power to the DENR secretary, it does not mean that DAO 99-56 is invalid per se, or that the
secretary acted without any authority or jurisdiction in issuing DAO 99-56. As we stated earlier in our
Prologue, "Who or what organ of government actually exercises this power of control on behalf of the State?
The Constitution is crystal clear: the President. Indeed, the Chief Executive is the official constitutionally
mandated to 'enter into agreements with foreign owned corporations.' On the other hand, Congress may
review the action of the President once it is notified of 'every contract entered into in accordance with this

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[constitutional] provision within thirty days from its execution.'"It is the President who is constitutionally
mandated to enter into FTAAs with foreign corporations, and in doing so, it is within the President's
prerogative to specify certain terms and conditions of the FTAAs, for example, the fiscal regime of FTAAs
-- i.e., the sharing of the net mining revenues between the contractor and the State.

Being the President's alter ego with respect to the control and supervision of the mining industry, the DENR
secretary, acting for the President, is necessarily clothed with the requisite authority and power to draw up
guidelines delineating certain terms and conditions, and specifying therein the terms of sharing of benefits
from mining, to be applicable to FTAAs in general. It is important to remember that DAO 99-56 has been in
existence for almost six years, and has not been amended or revoked by the President.

The issuance of DAO 99-56 did not involve the exercise of delegated legislative power. The legislature did
not delegate the power to determine the nature, extent and composition of the items that would come under
the phrase among other things. The legislature's power pertains to the imposition of taxes, duties and fees.
This power was not delegated to the DENR secretary. But the power to negotiate and enter into FTAAs was
withheld from Congress, and reserved for the President. In determining the sharing of mining benefits, i.e., in
specifying what the phrase among other things include, the President (through the secretary acting in his/her
behalf) was not determining the amount or rate of taxes, duties and fees, but rather the amount of INCOME
to be derived from minerals to be extracted and sold, income which belongs to the State as owner of the
mineral resources. We may say that, in the second paragraph of Section 81, the legislature in a sense
intruded partially into the President's sphere of authority when the former provided that

"The Government share in financial or technical assistance agreement shall consist of, among
other things, the contractor's corporate income tax, excise tax, special allowance, withholding tax
due from the contractor's foreign stockholders arising from dividend or interest payments to the
said foreign stockholder in case of a foreign national and all such other taxes, duties and fees as
provided for under existing laws." (Italics supplied)

But it did not usurp the President's authority since the provision merely included the enumerated items as
part of the government share, without foreclosing or in any way preventing (as in fact Congress could not
validly prevent) the President from determining what constitutes the State's compensation derived from
FTAAs. In this case, the President in effect directed the inclusion or addition of "other things," viz., INCOME
for the owner of the resources, in the government's share, while adopting the items enumerated by Congress
as part of the government share also.

12. Justice Carpio's insistence on applying the ejusdem generis rule of statutory construction to the
phrase among other things is therefore useless, and must fall by the wayside. There is no point trying to
construe that phrase in relation to the enumeration of taxes, duties and fees found in paragraph 2 of Section
81, precisely because "the constitutional power to prescribe the sharing of mining income between the
State and mining companies,"to quote Justice Carpio pursuant to an FTAA is constitutionally lodged
with the President, not with Congress. It thus makes no sense to persist in giving the phrase among other
things a restricted meaning referring only to taxes, duties and fees.

13. Strangely, Justice Carpio claims that the DENR secretary can change the formulae in DAO 99-56 any
time even without the approval of the President, and the secretary is the sole authority to determine the

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amount of consideration that the State shall receive in an FTAA, because Section 5 of the DAO states
that "xxx any amendment of an FTAA other than the provision on fiscal regime shall require the negotiation
with the Negotiation Panel and the recommendation of the Secretary for approval of the President xxx".
Allegedly, because of that provision, if an amendment in the FTAA involves non-fiscal matters, the
amendment requires approval of the President, but if the amendment involves a change in the fiscal regime,
the DENR secretary has the final authority, and approval of the President may be dispensed with; hence the
secretary is more powerful than the President.

We believe there is some distortion resulting from the quoted provision being taken out of context. Section 5
of DAO 99-56 reads as follows:

"Section 5. Status of Existing FTAAs. All FTAAs approved prior to the effectivity of this
Administrative Order shall remain valid and be recognized by the Government: Provided, That
should a Contractor desire to amend its FTAA, it shall do so by filing a Letter of Intent (LOI) to the
Secretary thru the Director. Provided, further, That if the Contractor desires to amend the fiscal
regime of its FTAA, it may do so by seeking for the amendment of its FTAA's whole fiscal regime
by adopting the fiscal regime provided hereof: Provided, finally, That any amendment of an FTAA
other than the provision on fiscal regime shall require the negotiation with the Negotiating Panel
and the recommendation of the Secretary for approval of the President of the Republic of the
Philippines." (underscoring supplied)

It looks like another case of misapprehension. The proviso being objected to by Justice Carpio is actually
preceded by a phrase that requires a contractor desiring to amend the fiscal regime of its FTAA, to amend
the same by adopting the fiscal regime prescribed in DAO 99-56 -- i.e., solely in that manner, and in no
other. Obviously, since DAO 99-56 was issued by the secretary under the authority and with the
presumed approval of the President, the amendment of an FTAA by merely adopting the fiscal regime
prescribed in said DAO 99-56 (and nothing more) need not have the express clearance of the
President anymore. It is as if the same had been pre-approved. We cannot fathom the complaint that that
makes the secretary more powerful than the President, or that the former is trying to hide things from the
President or Congress.

14. Based on the first sentence of Section 5 of DAO 99-56, which states "[A]ll FTAAs approved prior to the
effectivity of this Administrative Order shall remain valid and be recognized by the Government", Justice
Carpio concludes that said Administrative Order allegedly exempts FTAAs approved prior to its effectivity --
like the WMCP FTAA -- from having to pay the State any share from their mining income, apart from taxes,
duties and fees.

We disagree. What we see in black and white is the statement that the FTAAs approved before the DAO
came into effect are to continue to be valid and will be recognized by the State. Nothing is said about their
fiscal regimes. Certainly, there is no basis to claim that the contractors under said FTAAs were being
exempted from paying the government a share in their mining incomes.

For the record, the WMCP FTAA is NOT and has never been exempt from paying the government
share. The WMCP FTAA has its own fiscal regime -- Section 7.7 -- which gives the government a 60

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percent share in the net mining revenues of WMCP from the commencement of commercial
production.

For that very reason, we have never said that DAO 99-56 is the basis for claiming that the WMCP FTAA has
a consideration. Hence, we find quite out of place Justice Carpio's statement that ironically, DAO 99-56, the
very authority cited to support the claim that the WMCP FTAA has a consideration, does not apply to the
WMCP FTAA. By its own express terms, DAO 99-56 does not apply to FTAAs executed before the issuance
of DAO 99-56, like the WMCP FTAA. The majority's position has allegedly no leg to stand on since even
DAO 99-56, assuming it is valid, cannot save the WMCP FTAA from want of consideration. Even
assuming arguendo that DAO 99-56 does not apply to the WMCP FTAA, nevertheless, the WMCP FTAA has
its own fiscal regime, found in Section 7.7 thereof. Hence, there is no such thing as "want of consideration"
here.

Still more startling is this claim: The majority supposedly agrees that the provisions of the WMCP FTAA,
which grant a sham consideration to the State, are void. Since the majority agrees that the WMCP FTAA has
a sham consideration, the WMCP FTAA thus lacks the third element of a valid contract. The Decision should
declare the WMCP FTAA void for want of consideration unless it treats the contract as an MPSA under
Section 80. Indeed the only recourse of WMCP to save the validity of its contract is to convert it into an
MPSA.

To clarify, we said that Sections 7.9 and 7.8(e) of the WMCP FTAA are provisions grossly disadvantageous
to government and detrimental to the interests of the Filipino people, as well as violative of public policy, and
must therefore be stricken off as invalid. Since the offending provisions are very much separable from
Section 7.7 and the rest of the FTAA, the deletion of Sections 7.9 and 7.8(e) can be done without affecting or
requiring the invalidation of the WMCP FTAA itself, and such deletion will preserve for government its due
share of the 60 percent benefits. Therefore, the WMCP FTAA is NOT bereft of a valid
consideration (assuming for the nonce that indeed this is the "consideration" of the FTAA).

SUMMATION

To conclude, a summary of the key points discussed above is now in order.

The Meaning of "Agreements Involving

Either Technical or Financial Assistance"

Applying familiar principles of constitutional construction to the phrase agreements involving either technical
or financial assistance, the framers' choice of words does not indicate the intent to exclude other modes of
assistance, but rather implies that there are other things being included or possibly being made part of the
agreement, apart from financial or technical assistance. The drafters avoided the use of restrictive and
stringent phraseology; a verba legis scrutiny of Section 2 of Article XII of the Constitution discloses not even
a hint of a desire to prohibit foreign involvement in the management or operation of mining activities, or
to eradicate service contracts. Such moves would necessarily imply an underlying drastic shift in
fundamental economic and developmental policies of the State. That change requires a much more definite
and irrefutable basis than mere omission of the words "service contract" from the new Constitution.

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Furthermore, a literal and restrictive interpretation of this paragraph leads to logical inconsistencies. A
constitutional provision specifically allowing foreign-owned corporations to render financial or
technical assistance in respect of mining or any other commercial activity was clearly unnecessary; the
provision was meant to refer to more than mere financial or technical assistance.

Also, if paragraph 4 permits only agreements for financial or technical assistance, there would be no point in
requiring that they be "based on real contributions to the economic growth and general welfare of the
country." And considering that there were various long-term service contracts still in force and effect at the
time the new Charter was being drafted, the absence of any transitory provisions to govern the termination
and closing-out of the then existing service contracts strongly militates against the theory that the mere
omission of "service contracts" signaled their prohibition by the new Constitution.

Resort to the deliberations of the Constitutional Commission is therefore unavoidable, and a careful scrutiny
thereof conclusively shows that the ConCom members discussed agreements involving either technical or
financial assistance in the same sense as service contracts and used the terms interchangeably. The
drafters in fact knew that the agreements with foreign corporations were going to entail not mere technical or
financial assistance but, rather, foreign investment in and management of an enterprise for large-
scale exploration, development and utilization of minerals.

The framers spoke about service contracts as the concept was understood in the 1973 Constitution. It is
obvious from their discussions that they did not intend to ban or eradicate service contracts. Instead, they
were intent on crafting provisions to put in place safeguards that would eliminate or minimize the abuses
prevalent during the martial law regime. In brief, they were going to permit service contracts with
foreign corporations as contractors, but with safety measures to prevent abuses, as an exception to
the general norm established in the first paragraph of Section 2 of Article XII, which reserves or limits
to Filipino citizens and corporations at least 60 percent owned by such citizens the exploration,
development and utilization of mineral or petroleum resources. This was prompted by the perceived
insufficiency of Filipino capital and the felt need for foreign expertise in the EDU of mineral resources.

Despite strong opposition from some ConCom members during the final voting, the Article on the National
Economy and Patrimony -- including paragraph 4 allowing service contracts with foreign corporations as an
exception to the general norm in paragraph 1 of Section 2 of the same Article -- was resoundingly and
overwhelmingly approved.

The drafters, many of whom were economists, academicians, lawyers, businesspersons and politicians knew
that foreign entities will not enter into agreements involving assistance without requiring measures of
protection to ensure the success of the venture and repayment of their investments, loans and other financial
assistance, and ultimately to protect the business reputation of the foreign corporations. The drafters, by
specifying such agreements involving assistance, necessarily gave implied assent to everything that these
agreements entailed or that could reasonably be deemed necessary to make them tenable and effective --
including management authority with respect to the day-to-day operations of the enterprise, and measures
for the protection of the interests of the foreign corporation, at least to the extent that they are consistent with
Philippine sovereignty over natural resources, the constitutional requirement of State control, and beneficial
ownership of natural resources remaining vested in the State.

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From the foregoing, it is clear that agreements involving either technical or financial assistance referred to in
paragraph 4 are in fact service contracts, but such new service contracts are between foreign corporations
acting as contractors on the one hand, and on the other hand government as principal or "owner" (of the
works), whereby the foreign contractor provides the capital, technology and technical know-how, and
managerial expertise in the creation and operation of the large-scale mining/extractive enterprise, and
government through its agencies (DENR, MGB) actively exercises full control and supervision over the entire
enterprise.

Such service contracts may be entered into only with respect to minerals, petroleum and other mineral oils.
The grant of such service contracts is subject to several safeguards, among them: (1) that the service
contract be crafted in accordance with a general law setting standard or uniform terms, conditions and
requirements; (2) the President be the signatory for the government; and (3) the President report the
executed agreement to Congress within thirty days.

Ultimate Test: Full State Control

To repeat, the primacy of the principle of the State's sovereign ownership of all mineral resources, and its full
control and supervision over all aspects of exploration, development and utilization of natural resources must
be upheld. But "full control and supervision" cannot be taken literally to mean that the State controls and
supervises everything down to the minutest details and makes all required actions, as this would render
impossible the legitimate exercise by the contractor of a reasonable degree of management prerogative and
authority, indispensable to the proper functioning of the mining enterprise. Also, government need not micro-
manage mining operations and day-to-day affairs of the enterprise in order to be considered as exercising full
control and supervision.

Control, as utilized in Section 2 of Article XII, must be taken to mean a degree of control sufficient to enable
the State to direct, restrain, regulate and govern the affairs of the extractive enterprises. Control by the State
may be on a macro level, through the establishment of policies, guidelines, regulations, industry standards
and similar measures that would enable government to regulate the conduct of affairs in various enterprises,
and restrain activities deemed not desirable or beneficial, with the end in view of ensuring that these
enterprises contribute to the economic development and general welfare of the country, conserve the
environment, and uplift the well-being of the local affected communities. Such a degree of control would be
compatible with permitting the foreign contractor sufficient and reasonable management authority over the
enterprise it has invested in, to ensure efficient and profitable operation.

Government Granted Full Control

by RA 7942 and DAO 96-40

Baseless are petitioners' sweeping claims that RA 7942 and its Implementing Rules and Regulations make it
possible for FTAA contracts to cede full control and management of mining enterprises over to fully foreign
owned corporations. Equally wobbly is the assertion that the State is reduced to a passive regulator
dependent on submitted plans and reports, with weak review and audit powers and little say in the decision-
making of the enterprise, for which reasons "beneficial ownership" of the mineral resources is allegedly
ceded to the foreign contractor.

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As discussed hereinabove, the State's full control and supervision over mining operations are ensured
through the following provisions in RA 7942: Sections 8, 9, 16, 19, 24, 35[(b), (e), (f), (g), (h), (k), (l), (m) and
(o)], 40, 57, 66, 69, 70, and Chapters XI and XVII; as well as the following provisions of DAO 96-40:
Sections7[(d) and (f)], 35(a-2), 53[(a-4) and (d)], 54, 56[(g), (h), (l), (m) and (n)], 56(2), 60, 66, 144, 168, 171
and 270, and also Chapters XV, XVI and XXIV.

Through the foregoing provisions, the government agencies concerned are empowered to approve or
disapprove -- hence, in a position to influence, direct, and change -- the various work programs and the
corresponding minimum expenditure commitments for each of the exploration, development and utilization
phases of the enterprise. Once they have been approved, the contractor's compliance with its commitments
therein will be monitored. Figures for mineral production and sales are regularly monitored and subjected to
government review, to ensure that the products and by-products are disposed of at the best prices; copies of
sales agreements have to be submitted to and registered with MGB.

The contractor is mandated to open its books of accounts and records for scrutiny, to enable the State to
determine that the government share has been fully paid. The State may likewise compel compliance by the
contractor with mandatory requirements on mine safety, health and environmental protection, and the use of
anti-pollution technology and facilities. The contractor is also obligated to assist the development of the
mining community, and pay royalties to the indigenous peoples concerned. And violation of any of the
FTAA's terms and conditions, and/or non-compliance with statutes or regulations, may be penalized by
cancellation of the FTAA. Such sanction is significant to a contractor who may have yet to recover the tens or
hundreds of millions of dollars sunk into a mining project.

Overall, the State definitely has a pivotal say in the operation of the individual enterprises, and can set
directions and objectives, detect deviations and non-compliances by the contractor, and enforce compliance
and impose sanctions should the occasion arise. Hence, RA 7942 and DAO 96-40 vest in government more
than a sufficient degree of control and supervision over the conduct of mining operations.

Section 3(aq) of RA 7942 was objected to as being unconstitutional for allowing a foreign contractor to apply
for and hold an exploration permit. During the exploration phase, the permit grantee (and prospective
contractor) is spending and investing heavily in exploration activities without yet being able to extract
minerals and generate revenues. The exploration permit issued under Sections 3(aq), 20 and 23 of RA 7942,
which allows exploration but not extraction, serves to protect the interests and rights of the exploration permit
grantee (and would-be contractor), foreign or local. Otherwise, the exploration works already conducted, and
expenditures already made, may end up only benefiting claim-jumpers. Thus, Section 3(aq) of RA 7942 is
not unconstitutional.

WMCP FTAA Likewise Gives the

State Full Control and Supervision

The WMCP FTAA obligates the contractor to account for the value of production and sale of minerals
(Clause 1.4); requires that the contractor's work program, activities and budgets be approved by the State
(Clause 2.1); gives the DENR secretary power to extend the exploration period (Clause 3.2-a); requires
approval by the State for incorporation of lands into the contract area (Clause 4.3-c); requires Bureau of
Forest Development approval for inclusion of forest reserves as part of the FTAA contract area (Clause 4.5);

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obligates the contractor to periodically relinquish parts of the contract area not needed for exploration and
development (Clause 4.6); requires submission of a declaration of mining feasibility for approval by the State
(Clause 4.6-b); obligates the contractor to report to the State the results of its exploration activities (Clause
4.9); requires the contractor to obtain State approval for its work programs for the succeeding two year
periods, containing the proposed work activities and expenditures budget related to exploration (Clause 5.1);
requires the contractor to obtain State approval for its proposed expenditures for exploration activities
(Clause 5.2); requires the contractor to submit an annual report on geological, geophysical, geochemical and
other information relating to its explorations within the FTAA area (Clause 5.3-a); requires the contractor to
submit within six months after expiration of exploration period a final report on all its findings in the contract
area (Clause 5.3-b); requires the contractor after conducting feasibility studies to submit a declaration of
mining feasibility, along with a description of the area to be developed and mined, a description of the
proposed mining operations and the technology to be employed, and the proposed work program for the
development phase, for approval by the DENR secretary (Clause 5.4); obligates the contractor to complete
the development of the mine, including construction of the production facilities, within the period stated in the
approved work program (Clause 6.1); requires the contractor to submit for approval a work program covering
each period of three fiscal years (Clause 6.2); requires the contractor to submit reports to the secretary on
the production, ore reserves, work accomplished and work in progress, profile of its work force and
management staff, and other technical information (Clause 6.3); subjects any expansions, modifications,
improvements and replacements of mining facilities to the approval of the secretary (Clause 6.4); subjects to
State control the amount of funds that the contractor may borrow within the Philippines (Clause 7.2); subjects
to State supervisory power any technical, financial and marketing issues (Clause 10.1-a); obligates the
contractor to ensure 60 percent Filipino equity in the contractor within ten years of recovering specified
expenditures unless not so required by subsequent legislation (Clause 10.1); gives the State the right to
terminate the FTAA for unremedied substantial breach thereof by the contractor (Clause 13.2); requires State
approval for any assignment of the FTAA by the contractor to an entity other than an affiliate (Clause 14.1).

In short, the aforementioned provisions of the WMCP FTAA, far from constituting a surrender of control and a
grant of beneficial ownership of mineral resources to the contractor in question, vest the State with control
and supervision over practically all aspects of the operations of the FTAA contractor, including the charging
of pre-operating and operating expenses, and the disposition of mineral products.

There is likewise no relinquishment of control on account of specific provisions of the WMCP FTAA. Clause
8.2 provides a mechanism to prevent the mining operations from grinding to a complete halt as a result of
possible delays of more than 60 days in the government's processing and approval of submitted work
programs and budgets. Clause 8.3 seeks to provide a temporary, stop-gap solution in case a disagreement
between the State and the contractor (over the proposed work program or budget submitted by the
contractor) should result in a deadlock or impasse, to avoid unreasonably long delays in the performance of
the works.

The State, despite Clause 8.3, still has control over the contract area, and it may, as sovereign authority,
prohibit work thereon until the dispute is resolved, or it may terminate the FTAA, citing substantial breach
thereof. Hence, the State clearly retains full and effective control.

Clause 8.5, which allows the contractor to make changes to approved work programs and budgets without
the prior approval of the DENR secretary, subject to certain limitations with respect to the variance/s, merely
provides the contractor a certain amount of flexibility to meet unexpected situations, while still guaranteeing

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that the approved work programs and budgets are not abandoned altogether. And if the secretary disagrees
with the actions taken by the contractor in this instance, he may also resort to cancellation/termination of the
FTAA as the ultimate sanction.

Clause 4.6 of the WMCP FTAA gives the contractor discretion to select parts of the contract area to be
relinquished. The State is not in a position to substitute its judgment for that of the contractor, who knows
exactly which portions of the contract area do not contain minerals in commercial quantities and should be
relinquished. Also, since the annual occupation fees paid to government are based on the total hectarage of
the contract area, net of the areas relinquished, the contractor's self-interest will assure proper and efficient
relinquishment.

Clause 10.2(e) of the WMCP FTAA does not mean that the contractor can compel government to use its
power of eminent domain. It contemplates a situation in which the contractor is a foreign-owned corporation,
hence, not qualified to own land. The contractor identifies the surface areas needed for it to construct the
infrastructure for mining operations, and the State then acquires the surface rights on behalf of the former.
The provision does not call for the exercise of the power of eminent domain (or determination of just
compensation); it seeks to avoid a violation of the anti-dummy law.

Clause 10.2(l) of the WMCP FTAA giving the contractor the right to mortgage and encumber the mineral
products extracted may have been a result of conditions imposed by creditor-banks to secure the loan
obligations of WMCP. Banks lend also upon the security of encumbrances on goods produced, which can be
easily sold and converted into cash and applied to the repayment of loans. Thus, Clause 10.2(l) is not
something out of the ordinary. Neither is it objectionable, because even though the contractor is allowed to
mortgage or encumber the mineral end-products themselves, the contractor is not thereby relieved of its
obligation to pay the government its basic and additional shares in the net mining revenue. The contractor's
ability to mortgage the minerals does not negate the State's right to receive its share of net mining revenues.

Clause 10.2(k) which gives the contractor authority "to change its equity structure at any time," means that
WMCP, which was then 100 percent foreign owned, could permit Filipino equity ownership. Moreover, what
is important is that the contractor, regardless of its ownership, is always in a position to render the services
required under the FTAA, under the direction and control of the government.

Clauses 10.4(e) and (i) bind government to allow amendments to the FTAA if required by banks and other
financial institutions as part of the conditions of new lendings. There is nothing objectionable here, since
Clause 10.4(e) also provides that such financing arrangements should in no event reduce the contractor's
obligations or the government's rights under the FTAA. Clause 10.4(i) provides that government shall
"favourably consider" any request for amendments of this agreement necessary for the contractor to
successfully obtain financing. There is no renunciation of control, as the proviso does not say that
government shall automatically grant any such request. Also, it is up to the contractor to prove the need for
the requested changes. The government always has the final say on whether to approve or disapprove such
requests.

In fine, the FTAA provisions do not reduce or abdicate State control.

No Surrender of Financial Benefits

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The second paragraph of Section 81 of RA 7942 has been denounced for allegedly limiting the State's share
in FTAAs with foreign contractors to just taxes, fees and duties, and depriving the State of a share in the
after-tax income of the enterprise. However, the inclusion of the phrase "among other things" in the second
paragraph of Section 81 clearly and unmistakably reveals the legislative intent to have the State collect more
than just the usual taxes, duties and fees.

Thus, DAO 99-56, the "Guidelines Establishing the Fiscal Regime of Financial or Technical Assistance
Agreements," spells out the financial benefits government will receive from an FTAA, as consisting of not
only a basic government share, comprised of all direct taxes, fees and royalties, as well as other payments
made by the contractor during the term of the FTAA, but also an additional government share, being a
share in the earnings or cash flows of the mining enterprise, so as to achieve a fifty-fifty sharing of net
benefits from mining between the government and the contractor.

The additional government share is computed using one of three (3) options or schemes detailed in DAO
99-56, viz., (1) the fifty-fifty sharing of cumulative present value of cash flows; (2) the excess profit-related
additional government share; and (3) the additional sharing based on the cumulative net mining revenue.
Whichever option or computation is used, the additional government share has nothing to do with taxes,
duties, fees or charges. The portion of revenues remaining after the deduction of the basic and additional
government shares is what goes to the contractor.

The basic government share and the additional government share do not yet take into account the indirect
taxes and other financial contributions of mining projects, which are real and actual benefits enjoyed by the
Filipino people; if these are taken into account, total government share increases to 60 percent or higher (as
much as 77 percent, and 89 percent in one instance) of the net present value of total benefits from the
project.

The third or last paragraph of Section 81 of RA 7942 is slammed for deferring the payment of the
government share in FTAAs until after the contractor shall have recovered its pre-operating expenses,
exploration and development expenditures. Allegedly, the collection of the State's share is rendered
uncertain, as there is no time limit in RA 7942 for this grace period or recovery period. But although RA 7942
did not limit the grace period, the concerned agencies (DENR and MGB) in formulating the 1995 and 1996
Implementing Rules and Regulations provided that the period of recovery, reckoned from the date of
commercial operation, shall be for a period not exceeding five years, or until the date of actual recovery,
whichever comes earlier.

And since RA 7942 allegedly does not require government approval for the pre-operating, exploration and
development expenses of the foreign contractors, it is feared that such expenses could be bloated to wipe
out mining revenues anticipated for 10 years, with the result that the State's share is zero for the first 10
years. However, the argument is based on incorrect information.

Under Section 23 of RA 7942, the applicant for exploration permit is required to submit a proposed work
program for exploration, containing a yearly budget of proposed expenditures, which the State passes upon
and either approves or rejects; if approved, the same will subsequently be recorded as pre-operating
expenses that the contractor will have to recoup over the grace period.

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Under Section 24, when an exploration permittee files with the MGB a declaration of mining project
feasibility, it must submit a work program for development, with corresponding budget, for approval by the
Bureau, before government may grant an FTAA or MPSA or other mineral agreements; again, government
has the opportunity to approve or reject the proposed work program and budgeted expenditures
for development works, which will become the pre-operating and development costs that will have to be
recovered. Government is able to know ahead of time the amounts of pre-operating and other expenses to
be recovered, and the approximate period of time needed therefor. The aforecited provisions have
counterparts in Section 35, which deals with the terms and conditions exclusively applicable to FTAAs. In
sum, the third or last paragraph of Section 81 of RA 7942 cannot be deemed defective.

Section 80 of RA 7942 allegedly limits the State's share in a mineral production-sharing agreement (MPSA)
to just the excise tax on the mineral product, i.e., only 2 percent of market value of the minerals.
The colatilla in Section 84 reiterates the same limitation in Section 80. However, these two provisions
pertain only to MPSAs, and have no application to FTAAs. These particular provisions do not come
within the issues defined by this Court. Hence, on due process grounds, no pronouncement can be
made in this case in respect of the constitutionality of Sections 80 and 84.

Section 112 is disparaged for reverting FTAAs and all mineral agreements to the old "license, concession or
lease" system, because it allegedly effectively reduces the government share in FTAAs to just the 2 percent
excise tax which pursuant to Section 80 comprises the government share in MPSAs. However, Section 112
likewise does not come within the issues delineated by this Court, and was never touched upon by the
parties in their pleadings. Moreover, Section 112 may not properly apply to FTAAs. The mining law obviously
meant to treat FTAAs as a breed apart from mineral agreements. There is absolutely no basis to believe that
the law intends to exact from FTAA contractors merely the same government share (i.e., the 2 percent excise
tax) that it apparently demands from contractors under the three forms of mineral agreements.

While there is ground to believe that Sections 80, 84 and 112 are indeed unconstitutional, they cannot be
ruled upon here. In any event, they are separable; thus, a later finding of nullity will not affect the rest of RA
7942.

In fine, the challenged provisions of RA 7942 cannot be said to surrender financial benefits from an
FTAA to the foreign contractors.

Moreover, there is no concrete basis for the view that, in FTAAs with a foreign contractor, the State must
receive at least 60 percent of the after-tax income from the exploitation of its mineral resources, and that
such share is the equivalent of the constitutional requirement that at least 60 percent of the capital, and
hence 60 percent of the income, of mining companies should remain in Filipino hands. Even if the State is
entitled to a 60 percent share from other mineral agreements (CPA, JVA and MPSA), that would not create a
parallel or analogous situation for FTAAs. We are dealing with an essentially different equation. Here we
have the old apples and oranges syndrome.

The Charter did not intend to fix an iron-clad rule of 60 percent share, applicable to all situations, regardless
of circumstances. There is no indication of such an intention on the part of the framers. Moreover, the terms
and conditions of petroleum FTAAs cannot serve as standards for mineral mining FTAAs, because the
technical and operational requirements, cost structures and investment needs of off-shore petroleum

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exploration and drilling companies do not have the remotest resemblance to those of on-shore
mining companies.

To take the position that government's share must be not less than 60 percent of after-tax income of FTAA
contractors is nothing short of this Court dictating upon the government. The State resultantly ends up losing
control. To avoid compromising the State's full control and supervision over the exploitation of mineral
resources, there must be no attempt to impose a "minimum 60 percent" rule. It is sufficient that the State has
the power and means, should it so decide, to get a 60 percent share (or greater); and it is not necessary that
the State does so in every case.

Invalid Provisions of the WMCP FTAA

Section 7.9 of the WMCP FTAA clearly renders illusory the State's 60 percent share of WMCP's revenues.
Under Section 7.9, should WMCP's foreign stockholders (who originally owned 100 percent of the equity) sell
60 percent or more of their equity to a Filipino citizen or corporation, the State loses its right to receive its
share in net mining revenues under Section 7.7, without any offsetting compensation to the State. And what
is given to the State in Section 7.7 is by mere tolerance of WMCP's foreign stockholders, who can at any
time cut off the government's entire share by simply selling 60 percent of WMCP's equity to a Philippine
citizen or corporation.

In fact, the sale by WMCP's foreign stockholder on January 23, 2001 of the entire outstanding equity in
WMCP to Sagittarius Mines, Inc., a domestic corporation at least 60 percent Filipino owned, can be deemed
to have automatically triggered the operation of Section 7.9 and removed the State's right to receive its 60
percent share. Section 7.9 of the WMCP FTAA has effectively given away the State's share without anything
in exchange.

Moreover, it constitutes unjust enrichment on the part of the local and foreign stockholders in WMCP,
because by the mere act of divestment, the local and foreign stockholders get a windfall, as their share in the
net mining revenues of WMCP is automatically increased, without having to pay anything for it.

Being grossly disadvantageous to government and detrimental to the Filipino people, as well as violative of
public policy, Section 7.9 must therefore be stricken off as invalid. The FTAA in question does not involve
mere contractual rights but, being impressed as it is with public interest, the contractual provisions and
stipulations must yield to the common good and the national interest. Since the offending provision is very
much separable from the rest of the FTAA, the deletion of Section 7.9 can be done without affecting or
requiring the invalidation of the entire WMCP FTAA itself.

Section 7.8(e) of the WMCP FTAA likewise is invalid, since by allowing the sums spent by government for
the benefit of the contractor to be deductible from the State's share in net mining revenues, it results in
benefiting the contractor twice over. This constitutes unjust enrichment on the part of the contractor, at the
expense of government. For being grossly disadvantageous and prejudicial to government and contrary to
public policy, Section 7.8(e) must also be declared without effect. It may likewise be stricken off without
affecting the rest of the FTAA.

EPILOGUE

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AFTER ALL IS SAID AND DONE, it is clear that there is unanimous agreement in the Court upon the key
principle that the State must exercise full control and supervision over the exploration, development and
utilization of mineral resources.

The crux of the controversy is the amount of discretion to be accorded the Executive Department, particularly
the President of the Republic, in respect of negotiations over the terms of FTAAs, particularly when it comes
to the government share of financial benefits from FTAAs. The Court believes that it is not unconstitutional to
allow a wide degree of discretion to the Chief Executive, given the nature and complexity of such
agreements, the humongous amounts of capital and financing required for large-scale mining operations, the
complicated technology needed, and the intricacies of international trade, coupled with the State's need to
maintain flexibility in its dealings, in order to preserve and enhance our country's competitiveness in world
markets.

We are all, in one way or another, sorely affected by the recently reported scandals involving corruption in
high places, duplicity in the negotiation of multi-billion peso government contracts, huge payoffs to
government officials, and other malfeasances; and perhaps, there is the desire to see some measures put in
place to prevent further abuse. However, dictating upon the President what minimum share to get from
an FTAA is not the solution.It sets a bad precedent since such a move institutionalizes the very reduction if
not deprivation of the State's control. The remedy may be worse than the problem it was meant to address.
In any event, provisions in such future agreements which may be suspected to be grossly disadvantageous
or detrimental to government may be challenged in court, and the culprits haled before the bar of justice.

Verily, under the doctrine of separation of powers and due respect for co-equal and coordinate branches of
government, this Court must restrain itself from intruding into policy matters and must allow the President
and Congress maximum discretion in using the resources of our country and in securing the assistance of
foreign groups to eradicate the grinding poverty of our people and answer their cry for viable employment
opportunities in the country.

"The judiciary is loath to interfere with the due exercise by coequal branches of government of their official
functions."99 As aptly spelled out seven decades ago by Justice George Malcolm, "Just as the Supreme
Court, as the guardian of constitutional rights, should not sanction usurpations by any other department of
government, so should it as strictly confine its own sphere of influence to the powers expressly or by
implication conferred on it by the Organic Act."100 Let the development of the mining industry be the
responsibility of the political branches of government. And let not this Court interfere inordinately and
unnecessarily.

The Constitution of the Philippines is the supreme law of the land. It is the repository of all the aspirations
and hopes of all the people. We fully sympathize with the plight of Petitioner La Bugal B'laan and other tribal
groups, and commend their efforts to uplift their communities. However, we cannot justify the invalidation of
an otherwise constitutional statute along with its implementing rules, or the nullification of an otherwise legal
and binding FTAA contract.

We must never forget that it is not only our less privileged brethren in tribal and cultural communities who
deserve the attention of this Court; rather, all parties concerned -- including the State itself, the contractor
(whether Filipino or foreign), and the vast majority of our citizens -- equally deserve the protection of the law

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and of this Court. To stress, the benefits to be derived by the State from mining activities must ultimately
serve the great majority of our fellow citizens. They have as much right and interest in the proper and well-
ordered development and utilization of the country's mineral resources as the petitioners.

Whether we consider the near term or take the longer view, we cannot overemphasize the need for
an appropriate balancing of interests and needs -- the need to develop our stagnating mining industry
and extract what NEDA Secretary Romulo Neri estimates is some US$840 billion (approx. PhP47.04 trillion)
worth of mineral wealth lying hidden in the ground, in order to jumpstart our floundering economy on the one
hand, and on the other, the need to enhance our nationalistic aspirations, protect our indigenous
communities, and prevent irreversible ecological damage.

This Court cannot but be mindful that any decision rendered in this case will ultimately impact not only the
cultural communities which lodged the instant Petition, and not only the larger community of the Filipino
people now struggling to survive amidst a fiscal/budgetary deficit, ever increasing prices of fuel, food, and
essential commodities and services, the shrinking value of the local currency, and a government hamstrung
in its delivery of basic services by a severe lack of resources, but also countless future generations of
Filipinos.

For this latter group of Filipinos yet to be born, their eventual access to education, health care and basic
services, their overall level of well-being, the very shape of their lives are even now being determined and
affected partly by the policies and directions being adopted and implemented by government today. And in
part by the this Resolution rendered by this Court today.

Verily, the mineral wealth and natural resources of this country are meant to benefit not merely a select
group of people living in the areas locally affected by mining activities, but the entire Filipino nation, present
and future, to whom the mineral wealth really belong. This Court has therefore weighed carefully the rights
and interests of all concerned, and decided for the greater good of the greatest number. JUSTICE FOR ALL,
not just for some; JUSTICE FOR THE PRESENT AND THE FUTURE, not just for the here and now.

WHEREFORE, the Court RESOLVES to GRANT the respondents' and the intervenors' Motions for
Reconsideration; to REVERSE and SET ASIDE this Court's January 27, 2004 Decision; to DISMISS the
Petition; and to issue this new judgment declaring CONSTITUTIONAL (1) Republic Act No. 7942 (the
Philippine Mining Law), (2) its Implementing Rules and Regulations contained in DENR Administrative Order
(DAO) No. 9640 -- insofar as they relate to financial and technical assistance agreements referred to in
paragraph 4 of Section 2 of Article XII of the Constitution; and (3) the Financial and Technical Assistance
Agreement (FTAA) dated March 30, 1995 executed by the government and Western Mining Corporation
Philippines Inc. (WMCP), except Sections 7.8 and 7.9 of the subject FTAA which are hereby INVALIDATED
for being contrary to public policy and for being grossly disadvantageous to the government.

SO ORDERED.

Davide Jr., C.J., Sandoval-Gutierrez, Austria-Martinez, and Garcia, JJ., concur.

Puno, J., in the result and votes to invalidate sections 3.3; 7.8 and 7.9 of the WMC FTAA.
Quisumbing, J., in the result.

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