G.R. No.

L-56503 April 4, 1981

RAMON MITRA, JR., NAPOLEON RAMA, EMMANUEL T. SANTOS, ERNIE
RONDON, ANTONIO MARTINEZ, JEJOMAR BINAY, RODRIGO H. MELCHOR,
JOAQUIN (Titong) ROCES, RAFAEL YAP, and MEL LOPEZ,petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.

FERNANDO, CJ.:
In essence, this petition for mandamus and prohibition is not dissimilar from the
prohibition proceedings just dismissed filed respectively by former delegates
Samuel C. Occena and Ramon A. Gonzales. 1 All three suits proceed on the
assumption that the present Constitution is not in force and effect. There is this
variation. In the last two paragraphs of this petition, the plea is made for the holding
of a plebiscite so that the people may vote on the ratification of the Constitution,
now in force, but as, to them still in the stage of proposal. In the event it is rejected,
so their thinking goes, then the 1935 Constitution, which in the view of petitioners
was suspended by the establishment of an authoritarian regime by the Commanderin-Chief of the Armed Forces after the proclamation of martial law, could be once
more operative with the lifting of martial law on January 17, 1981. As in the Occena
and Gonzales petitions, there is what was therein referred to as a "rather
unorthodox aspect" in "the assertion that the 1973 Constitution is not the
fundamental law, the Javellana ruling to the contrary notwithstanding." 2 This
excerpt from the opinion is, therefore, fully applicable: "To put it at its mildest, such
an approach has the arresting charm of novelty but nothing else. It is in fact selfdefeating, for if such were indeed the case, petitioners have come to the wrong
forum. We sit as Court duty-bound to uphold and apply that Constitution. To contend
otherwise as was done here would be, quite clearly, an exercise in futility." 3
A similar judgment is thus indicated. The petition must be dismissed. If there is a
further expression of view on the part of the Court, it is to clear the
misapprehension that seems to be current in certain legal quarters about the import
of the Javellana decision 4 and the role of the President as Commander-in-Chief
during the period of martial law.
1. What is the ruling in Javellana v. Executive Secretary? 5 Rightfully, it is ranked by
eminent jurists and academicians abroad as one of the most significant
manifestations of the exercise of the function of judicial review. Apparently, this
awesome and delicate power has implications still not adequately grasped. By
virtue of this prerogative, the Supreme Court either checks or legitimates the acts of
a coordinate department, challenged in an appropriate legal proceeding. The

decision rendered then, whether one of approval or of rejection, of validity or of

unconstitutionality, is controlling. To go back toJavellana v. Executive Secretary. The
ruling cannot be any clearer. The dispositive portion reads: "[Accordingly], by virtue
of the majority of six (6) votes of Justices Makalintal, Castro, Barredo, Makasiar,
Antonio and Esguerra with the four (4) dissenting votes of the Chief Justice and
Justices Zaldivar, Fernando and Teehankee, all the aforementioned cases are hereby
dismissed. This being the vote of the majority, there is no further judicial obstacle to
the new Constitution being considered in force and effect." 6 As far as there being
"no further judicial obstacle" to the operative character of the 1973 Constitution,
there can be no doubt that such is the view of eight of the ten members of the
Court. Petitioners apparently did not take note of the immediately preceding
paragraph of the opinion of the then Chief Justice Concepcion, who, while one of the
dissenters, spoke for the Court on the voting: "On the fifth question of whether the
new Constitution of 1973 is in force: Four (4) members of the Court, namely, Justices
Barredo, Makasiar, Antonio and Esguerra hold that it is in force by virtue of the
people's acceptance thereof; Four (4) members of the Court, namely, Justices
Makalintal, Castro, Fernando and Teehankee cast no vote thereon on the premise
stated in their votes on the third question that they could not state with judicial
certainty whether the people have accepted or not accepted the Constitution; and
Two (2) members of the Court, namely, Justice Zaldivar and myself voted that the
Constitution proposed by the 1971 Constitutional Convention is not in force; with
the result that there are not enough votes to declare that the new Constitution is
not in force." 7 Both the statements of "there being no further judicial obstacle" as
well as the negative form in which mention is made of there being "not enough
votes to declare that the new Constitution" is not in force reflect the traditional
mode in which constitutional issues are passed upon in accordance with the
American concept of judicial review. The function of judicial review, as observed by
Justice Laurel in the leading case of Angara v. Electoral Commission, 8 reflects the
adoption of the American type of constitutional government "where the written
constitution is interpreted and given effect by the judicial department." 9In the
event therefore that the decision rendered may give rise to doubts and perplexities,
there is comfort and assurance in the thought expressed by the same eminent jurist
in another leading case of Villena v. Secretary of Interior: 10 "Familiarity with the
essential background of the type of government established under our Constitution,
in the light of certain well-known principles and practices that go with the system,
should offer the necessary explanation." 11 One of such practices is the manner in
which the dispositive portion of a decision in a suit contesting the validity of a
legislative or executive act is worded. It was noted that Justice Holmes had a
penchant for the double negative. A favorite phrase of his was that the statute "was
not unconstitutional." That is of the essence of judicial review. For one of its basic
postulates is the presumption of validity. The burden of proof is thus on the person
assailing the action taken by a coordinate branch. There is no need therefore of an
affirmative finding as to its being constitutional. It suffices that it has not been
shown to be otherwise. It is likewise by virtue of such presumption that Justice

Malcolm correctly asserted: "To doubt is to sustain." 12Scholars in the field of

constitutional law have even gone further. They maintain that when the Supreme
Court or some members thereof whose votes are crucial deem the question raised
as a political 13 and not judicial resulting in the dismissal of the action, there was,
even then, a manifestation of the power of judicial review at work. The Court, by
ruling that it was without jurisdiction, allowed the political branches to have their
way. In that sense, to use a favorite phrase of Thomas Reed Powell, the Court was
silently vocal and not silently silent. In Javellana, the Court assumed jurisdiction, but
only two of the ten members then were of the view and so voted that the 1973
Constitution is not in force. There is no affront to logic, it would seem, for us to
dismiss the petitions and accordingly rule that "there is no further judicial obstacle
to the new Constitution being considered in force and effect." As was pointed out in
the joint decision in the Occena and Gonzales petitions: "That is the meaning of the
concluding statement in Javellana. Since then, this Court has invariably applied the
present Constitution. The latest case in point is People v. Sola, promulgated barely
two weeks ago. During the first year alone of the effectivity of the present
Constitution, at least ten cases may be cited." 14
2. Nor is this all. The scholarly opinion of then Chief Justice Roberto Concepcion,
while in dissent, acknowledged that even without valid ratification, a new
Constitution could come into force and effect by the acquiescence of the people,
referring in particular to the leading case of Taylor v. Commonwealth. 15 Other cases
may be cited. 16 There is this excerpt in a separate opinion in Javellana:
"Independently of the lack of validity of the ratification of the new Constitution, if it
be accepted by the people, in whom sovereignty resides according to the
Constitution, then this Court cannot refuse to yield assent to such a political
decision of the utmost gravity, conclusive in its effect. Such a fundamental principle
is meaningless if it does not imply, to follow Laski, that the nation as a whole
constitutes the "single center of ultimate reference, necessarily the possessor of
that 'power that is able to resolve disputes by saying the last word." If the origins of
the democratic polity enshrined in the 1935 Constitution with the declaration that
the Philippines is a republican state could be traced back to Athens and to Rome, it
is no doubt true, as McIver pointed out, that only with the recognition of the nation
as the separate political unit in public law is there the juridical recognition of the
people composing it 'as the source of political authority.' From them, as Corwin did
stress, emanate 'the highest possible embodiment of human will,' which is supreme
and must be obeyed. To avoid any confusion and in the interest of clarity, it should
be expressed in the manner ordained by law. Even if such were not the case,
however, once it is manifested, it is to be accepted as final and authoritative. The
government which is merely an agency to register its commands has no choice but
to submit. Its officials must act accordingly. No agency is exempt from such a duty.
not even this Court. In that sense, the lack of regularity in the method employed to
register its wishes is not fatal in its consequences. Once the fact of acceptance by
the people of a new fundamental law is made evident, the judiciary is left with no

choice but to accord it recognition. The obligation to render obeisance falls on the
courts as well." 17 Even petitioners must be aware that aside from the referendum
that led to the ratification of the present Constitution, there was a second one held
on July 27 and 28 in 1973, 18 and another on February 27 and 28 in 1975. 19 The
1976 amendments to the Constitution were adopted in the referendum held on
October 16 and 17 of the year. 20 Then on December 17, 1977, there was again held
a referendum. 21 The fact that the people went to the polls would be indicative of
their acquiescence in the present Constitution. Nor could petitioners be unaware
that two elections have been held under the present Constitution, one for members
of the Interim Batasang Pambansa on April 7, 1978 and the other for local
government officials on January 30, 1980. In the face of the above clearly
manifested recognition of the force and effect of the present Constitution, by the
people, including those in the opposition, it would seem that any argument to the
contrary should be consigned to a well-merited limbo.
3. There is an even graver misapprehension of the significance of the President
being the Commander-in-Chief of the Armed Forces and the restricted concept of
martial law as known to American Jurisprudence well-nigh authoritative in this
jurisdiction. The provision of the 1935 Constitution by virtue of which martial law
was declared reads as follows: "The President shall be commander-in-chief of all
Armed Forces of the Philippines and, whenever it becomes necessary, he may call
out such armed forces to prevent or suppress lawless violence, invasion,
insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or imminent
danger thereof, when the public safety requires it, he may suspend the privileges of
the writ of habeas corpus, or place the Philippines or any part thereof under martial
law." 22 The commander-in-chief clause is traceable to the United States
Constitution, 23 which however does not empower the American President to declare
martial law. It is quite apparent that the framers of the 1935 Constitution, including
some of the greatest legal luminaries of the Philippines, all devoted to the concept
of civilian supremacy, expanded the commander-in-chief clause on the assumption
that the President, as the highest civilian authority, should not be bereft of
competence to deal with any danger to the State whether posed by external
aggression or internal subversion. He was thus empowered to suspend the privilege
of the writ of habeas corpus and to declare martial law. At any rate, there was
nothing novel in such a provision as far as the Philippines is concerned. It owed its
origin to the Philippine Autonomy Act of 1916, more popularly known as Jones
Law, 24 which was in turn based on the Organic Act of Hawaii of 1899. 25 State
Constitutions
of
Massachusetts, 26 New
Hampshire, 27 Rhode
28
29
30
31
32
Island, Vermont, Maine, Maryland, Tennessee, West
Virginia, 33 and
Alaska 34 likewise contain martial law provisions. Neither the Colorado nor the Texas
Constitutions has a provision of that character, in the former the privilege of the writ
could be suspended 35 and in the latter a statute was enacted to enable its
Governor to do so. 36 As interpreted by the American Supreme Court in the leading
cases of Moyer v. Peabody, 37 the opinion coming from Justices Holmes, and Sterling

v. Constantine, 38 with Chief Justice Hughes as ponente, these two decisions along
with that of Duncan v. Kahananloku, 39made clear that martial law as understood in
American jurisprudence is subject to judicial scrutiny and t thus far from being all
encompassing. To be more specific, martial law, according to Willoughby, "goes no
further than to warn citizens that the military powers have been called upon by the
executive to assist him in the maintenance of law and order, and that, while the
emergency lasts, they must upon pain of arrest and punishment, not commit any
acts which will in any way render more difficult the restoration of order and the
enforcement of law." 40 Burdick, 41 Willis, 42 and Schwartz 43 wrote in the same vein.
Parenthetically, it may be observed that President Ferdinand E. Marcos announced
in a speech in Hawaii on April 22, 1980 that the Philippines is partial to the
Willoughby approach. 44 There is this modification though as announced in the
ponencia of Justice Makasiar in Aquino, Jr. v. Commission on Elections: 45 "We affirm
the proposition that as Commander-in-Chief and enforcer or administrator of martial
law, the incumbent President of the Philippines can promulgate proclamations,
orders and decrees during the period of Martial Law essential to the security and
preservation of the Republic, to the defense of the political and social liberties of the
people and to the institution of reforms to prevent the resurgence of rebellion or
insurrection or secession or threat thereof as well as to meet the impact of a
worldwide recession, inflation or economic crisis which presently threatens all
nations including highly developed countries. 46 That is the extent of the influence
exerted by the view of Rossiter. 47 There is thus adherence to the pronouncement of
Justice Black in the above-cited Dunca v. Kahanamoku, 48 a case of Hawaiian origin:
"Legislatures and courts are not merely cherished American institutions; they are
indispensable to our government." 49 The Interim Batasang Pambansa was provided
for in the 1976 Amendments to the Constitution, tile opening sentence of its first
section reading: "There shall be, in lieu of the interim National Assembly,
an interim Batasang Pambansa." 50 The judiciary, during the period of martial law
from September 21, 1972 to January 17, 1981, performed its functions and
discharged its responsibility as a separate branch of the government. It never
ceased all the while to exercise the power of judicial review. The validity of the
proclamation of martial law was challenged and unanimously upheld in Aquino, Jr. v.
Commission on Elections. 51 Mention had already been made of Javellana vs.
Executive Secretary, 52 where, as noted, the transcendental issue posed was
whether or not the 1973 Constitution was in force and effect, with the Court
dismissing the Petitions by a vote of six to four and ruling by a vote of eight to two
that there was "no further judicial obstacle to the New Constitution being
considered in force and effect," and Aquino, Jr. v. Commission on Elections, 53 where
the question raised was as to the competence of the President to issue orders and
decrees having the force and effect of law, with the Court ruling that he could do so,
the ratio decidendibeing the aforesaid excerpt quoted from the ponencia of Justice
Makasiar. 54 There are two other decisions equally signifying that this Court had
never been hesitant to assume jurisdiction in cases assailing the validity of
Presidential acts. The first is Aquino, Jr. v. Military Commission, 55 where the power

of the President to create a military commission with jurisdiction to try civilians for
certain specified offences connected with the rebellion, was sustained, No.56 the
opinion being penned by Justice Antonio. 56 The other is Sanidad v. Commission on
Elections, 57 where the authority of the President to propose amendments to the
Constitution, the interim National Assembly not having been convened, was
sanctioned. 58 It is not to be lost sight of either that in Dumiao v. Commission on
Elections, 59 decided on January 22, 1980, while martial law was still in force, this
Court nullified a portion of Section 4 of Batas Pambansa Blg. 52, which would
consider the filing of charges for the commission of any crime arising from acts of
disloyalty or amounting to subversion, insurrection, or rebellion, before the Civil
Court or military tribunal after preliminary investigation as prima facie evidence of
such fact. Justice Melencio-Herrera was the ponente. 60
4. There can be no justification then for the reckless assertion that upon the
proclamation of martial law and while it was in force, constitutionalism, in terms of
the exercise of the power of judicial review and respect for individual rights, no
longer held sway in the Philippines. It was Justice Lionel Keith Murphy, of the High
Court of Australia, whose advocacy of a written bill of rights for his country has won
him an international reputation as a devoted and eloquent champion of human
rights who was the Second Comparative Law Lecturer of the Integrated Bar of the
Philippines. In that lecture, he appraised the role of this Court during martial law
thus: "The judicial system in the Philippines had undergone difficult times, and
much stress has been placed on it by the necessity to resolve great issues arising in
a series of cases: The Anti-Subversion, The Plebiscite, The Ratification, The Martial
Law. The Referendum, The Right, to Counsel and The Military Tribunal Cases." 61 He
said further: "Throughout these cases, one can observe with admiration the concern
of the judiciary to maintain the fundamental liberties of the people even under the
most difficult conditions." 62 He continued his appraisal of the work of the Supreme
Court during martial law thus: "Violations of human rights have occurred and do
occur in the Philippines. Violations of human rights have occurred and do occur in
Australia. I will mention some shortly. They occur in the United States and
elsewhere. But the Philippines and the United States have courts which are able to
enforce mandatory provisions in the Bill of Rights. Your Supreme Court does so
daily, openly and in reasoned decision given by your Justices." 63 To paraphrase a
recognized authority in American Constitutional law and one of the most respected
American legal scholars, Professor Paul A. Freund it is not too much to expect of any
counsel appearing before the Supreme Court that there should be on his part a
certain degree of awareness of the pitfalls and delusions of certitude in view of the
complexity of the strands in the web of constitutionalism which the Court must
disentangle. 64 There is still much to be said of this aphorism of Justice Holmes:
"Certitude is not the test of certainty." In the field of constitutional law, the need for
reexamining the continuing validity of doctrines in the light of changing
circumstances cannot be denied. Familiarity with such doctrines, to refer anew to
what was stated by Justice Laurel, is, however, a prime requisite.

WHEREFORE, the petition is dismissed for lack of merit.

Barredo, Makasiar, Aquino, Concepcion Jr., Fernandez, Guerrero, De Castro and
Melencio-Herrera, JJ., concur.
Abad Santos, J., is on leave.

EN BANC
[G.R. No. 76180. October 24, 1986.]
SATURNINO V. BERMUDEZ, petitioner.

SYLLABUS
1. REMEDIAL LAW; DISMISSAL OF PETITIONS; LACK OF JURISDICTION AND LACK OF
CAUSE OF ACTION, VALID GROUNDS. The petition is dismissed outright for lack of
jurisdiction and for lack of cause of action. Prescinding from petitioner's lack of
personality to sue or to bring this action (Tan vs. Macapagal, 43 SCRA 677). it is
elementary that this Court assumes no jurisdiction over petitions for declaratory
relief. More importantly, the petition amounts in effect to a suit against the
incumbent Presidents of the Republic. President Corazon C. Aquino, and it is equally
elementary that incumbent Presidents are immune from suit or from being brought
to court during the period of their incumbency and tenure. The petition furthermore
states no cause of action. Petitioner's allegation of ambiguity or vagueness of the
aforequoted provision is manifestly gratuitous, it being a matter of public record and
common public knowledge that the Constitutional Commission refers therein to
incumbent President Corazon C. Aquino and Vice-President Salvador H. Laurel, and
to no other persons, and provides for the extension of their term to noon of June 30,
1992 for purpose of synchronization of elections. Hence the second paragraph of
the cited section provides for the holding on the second Monday of May, 1992 of the

first

regular

elections

for

the

President

and

Vice-President

under

said

1986 Constitution.
MELENCIO-HERRERA, J., concurring:
1. REMEDIAL LAW; DISMISSAL OF PETITION, PROPER IN CASE AT BAR; SUPREME
COURT HAS NO ORIGINAL JURISDICTION OVER PETITIONS FOR DECLARATORY RELIEF.
As to lack of cause of action, the petitioner's prayer for a declaration as to who
were elected President and Vice-President in the February 7, 1986 elections should
be addressed not to this court but to other departments of government
constitutionally burdened with the task of making that declaration. The 1935
Constitution, the 1973 Constitution an amended, and the 1986 Draft Constitution
uniformly provide that boards of canvassers in each province and city shall certify
who were elected President and Vice President in their respective areas. The
certified returns are transmitted to the legislature which proclaims, through the
designated Presiding Head, who were duly elected. Copies of the certified returns
from the provincial and city boards of canvassers have not been furnished this Court
nor is there any need to do so. In the absence of a legislature, we cannot assume
the function of stating, and neither do we have any factual or legal capacity to
officially declare, who were elected President and Vice President in the February 7,
1986 elections.

RESOLUTION

PER CURIAM p:
In a petition for declaratory relief impleading no respondents, petitioner, as a
lawyer, quotes the first paragraph of Section 5 (not Section 7 as erroneously stated)
of Article XVIII of the proposed 1986 Constitution, which provides in full as follows:
"Sec. 5. The six-year term of the incumbent President and VicePresident elected in the February 7, 1986 election is, for purposes of

synchronization of elections, hereby extended to noon of June 30,

1992."
"The first regular elections for the President and Vice-President under
this Constitution shall be held on the second Monday of May, 1992."
Claiming that the said provision "is not clear" as to whom it refers, he then asks the
Court "to declare and answer the question of the construction and definiteness as to
who, among the present incumbent President Corazon Aquino and Vice President
Salvador Laurel and the elected President Ferdinand E. Marcos and Vice President
Arturo M. Tolentino being referred to under the said Section 7 (sic) of ARTICLE XVIII
of the TRANSITORY PROVISIONS of the proposed 1986 Constitution refers to, . . . "
The petition is dismissed outright for lack of jurisdiction and for lack of cause of
action. prLL
Prescinding from petitioner's lack of personality to sue or to bring this action (Tan
vs. Macapagal, 43 SCRA 677), it is elementary that this Court assumes no
jurisdiction over petitions for declaratory relief. More importantly, the petition
amounts in effect to a suit against the incumbent President of the Republic,
President Corazon C. Aquino, and it is equally elementary that incumbent Presidents
are immune from suit or from being brought to court during the period of their
incumbency and tenure.
The petition furthermore states no cause of action. Petitioner's allegation of
ambiguity or vagueness of the aforequoted provision is manifestly gratuitous, it
being a matter of public record and common public knowledge that the
Constitutional Commission refers therein to incumbent President Corazon C. Aquino
and Vice-President Salvador H. Laurel, and to no other persons, and provides for the
extension of their term to noon of June 30, 1992 for purposes of synchronization of
elections. Hence, the second paragraph of the cited section provides for the holding
on the second Monday of May, 1992 of the first regular elections for the President
and Vice-President under said 1986 Constitution. In previous cases, the legitimacy
of the government of President Corazon C. Aquino was likewise sought to be

questioned with the claim that it was not established pursuant to the 1973
Constitution. The said cases were dismissed outright by this court which held that:
"Petitioners have no personality to sue and their petitions state no
cause of action. For the legitimacy of the Aquino government is not a
justiciable matter. It belongs to the realm of politics where only the
people of the Philippines are the judge. And the people have made
the judgment; they have accepted the government of President
Corazon C. Aquino which is in effective control of the entire country
so that it is not merely a de facto government but in fact and law
a de jure government. Moreover, the community of nations has
recognized the legitimacy of the present government. All the eleven
members of this Court, as reorganized, have sworn to uphold the
fundamental law of the Republic under her government." (Joint
Resolution of May 22, 1986 in G.R. No. 73748 [Lawyers League for a
Better Philippines, etc. vs. President Corazon C. Aquino, et al.]; G.R.
No. 73972 [People's Crusade for Supremacy of the Constitution etc.
vs. Mrs. Cory Aquino, et al.]; and G.R. No. 73990 [Councilor Clifton U.
Ganay vs. Corazon C. Aquino, et al.])
For the above-quoted reasons, which are fully applicable to the petition at
bar, mutatis mutandis, there can be no question that President Corazon C. Aquino
and Vice-President Salvador H. Laurel are the incumbent and legitimate President
and Vice President of the Republic of the Philippines.
ACCORDINGLY, the petition is hereby dismissed.
Teehankee, C . J ., Feria, Yap, Fernan, Narvasa, Alampay and Paras, JJ ., concur.

Separate Opinions
MELENCIO-HERRERA, J., concurring:
The petitioner asks the Court to declare who are "the incumbent President and Vice
President elected in the February 7, 1986 elections" as stated in Article XVIII,

Section 5 of the Draft Constitution adopted by the Constitutional Commission of

1986.
We agree that the petition deserves outright dismissal as this Court has no original
jurisdiction over petitions for declaratory relief.
As to lack of cause of action, the petitioner's prayer for a declaration as to who were
elected President and Vice President in the February 7, 1986 elections should be
addressed not to this Court but to other departments of government constitutionally
burdened with the task of making that declaration.
The 1935 Constitution, the 1973 Constitution as amended, and the 1986 Draft
Constitution uniformly provide that boards of canvassers in each province and city
shall certify who were elected President and Vise President in their respective areas.
The certified returns are transmitted to the legislature which proclaims, through the
designated Presiding Head, who were duly elected.
Copies of the certified returns from the provincial and city boards of canvassers
have not been furnished this Court nor is there any need to do so. In the absence of
a legislature, we cannot assume the function of stating, and neither do we have any
factual or legal capacity to officially declare, who were elected President and Vice
President in the February 7, 1986 elections.
As to who are the incumbent President and Vice President referred to in the 1986
Draft Constitution, we agree that there is no doubt the 1986 Constitutional
Commission referred to President Corazon C. Aquino and Vice President Salvador H.
Laurel. LibLex
Finally, we agree with the Resolution of the Court in G.R. Nos. 73748, 73972, and
73990.
For the foregoing reasons, we vote to DISMISS the instant petition.
Gutierrez, Jr. and Feliciano, JJ ., concur.
CRUZ, J ., concurring:

I vote to dismiss this petition on the ground that the Constitution we are asked to
interpret has not yet been ratified and is therefore not yet effective. I see here no
actual conflict of legal rights susceptible of judicial determination at this time.
(Aetna Life Insurance Co. vs. Haworth, 300 U.S. 227; PACU vs. Secretary of
Education, 97 Phil. 806.)

||| (Saturnino V. Bermudez, G.R. No. 76180 (Resolution), [October 24, 1986], 229
PHIL 185-190)

EN BANC
[A.M. No. 90-11-2697-CA. June 29, 1992.]
LETTER OF ASSOCIATE JUSTICE REYNATO S. PUNO of the Court
of Appeals dated 14 November 1990.

RESOLUTION

PADILLA, J p:
Petitioner Associate Justice Reynato S. Puno, a member of the Court of Appeals,
wrote a letter dated 14 November 1990 addressed to this Court, seeking the
correction of his seniority ranking in the Court of Appeals.
It appears from the records that petitioner was first appointed Associate Justice of
the Court of Appeals on 20 June 1980 but took his oath of office for said position
only on 29 November 1982, after serving as Assistant Solicitor General in the Office
of the Solicitor General since 1974. 1

On 17 January 1983, the Court of Appeals was reorganized and became the
Intermediate Appellate Court pursuant to Batas Pambansa Blg. 129 entitled "An Act
Reorganizing

the

Judiciary.

Appropriating

Funds

Therefor

and

For

Other

Purposes." 2 Petitioner was appointed Appellate Justice in the First Special Cases
Division of the Intermediate Appellate Court. On 7 November 1984, petitioner
accepted an appointment to the government and ceased to be a member of the
Judiciary. 3
The aftermath of the EDSA Revolution in February 1986 brought about a
reorganization of the entire government, including the Judiciary. To effect the
reorganization of the Intermediate Appellate Court and other lower courts, a
Screening Committee was created, with the then Minister of Justice, now Senator
Neptali

Gonzales

as

Chairman

and

then

Solicitor

General,

now

Philippine

Ambassador to the United Nations Sedfrey Ordoez as Vice Chairman. President

Corazon C. Aquino, exercising legislative powers by virtue of the revolution,
issued Executive Order No. 33 to govern the aforementioned reorganization of the
Judiciary. 4
The Screening Committee recommended the return of petitioner as Associate
Justice of the new Court of Appeals and assigned him the rank of number eleven
(11) in the roster of appellate court justices. When the appointments were signed by
President Aquino on 28 July 1986, petitioner's seniority ranking changed, however,
from number eleven (11) to number twenty six (26). 5
Petitioner now alleges that the change in his seniority ranking could only be
attributed to inadvertence for, otherwise, it would run counter to the provisions
of Section 2 of Executive Order No. 33, which reads: Cdpr
"SECTION 2. Section 3, Chapter 1 of Batas Pambansa Blg. 129, is
hereby amended to read as follows:
"SEC. 2. Organization. There is hereby created a Court of Appeals
which shall consist of a Presiding Justice and fifty Associate Justices
who shall be appointed by the President of the Philippines. The
Presiding Justice shall be so designated in his appointment and the

Associate Justice shall have precedence according to the dates of

their respective appointments, or when the appointments of two or
more shall bear the same date, according to the order in which their
appointments were issued by the President. Any Member who is
reappointed to the Court after rendering service in any other position
in the government shall retain the precedence to which he was
entitled under his original appointment, and his service in the Court
shall, for all intents and purpose be considered as continuous and
uninterrupted." 6
Petitioner elaborates that President Aquino is presumed to have intended to comply
with her own Executive Order No. 33 so much so that the correction of the
inadvertent error would only implement the intent of the President as well as the
spirit of Executive Order No. 33 and will not provoke any kind of constitutional
confrontation (between the President and the Supreme Court). 7
Petitioner points to the case of Justice Oscar Victoriano, former Presiding Justice of
the Court of Appeals who, according to petitioner, was transferred from his position
as Justice of the Court of Appeals to the Ministry of Justice as Commissioner of Land
Registration and in 1986 was reappointed to the Court of Appeals. Petitioner states
that his (Victoriano's) stint in the Commission of Land Registration did not adversely
affect his seniority ranking in the Court of Appeals, for, in his case, Executive Order
No. 33 was correctly applied. 8
In a resolution of the Court en banc dated 29 November 1990, the Court granted
Justice Puno's request. 9 It will be noted that before the issuance of said resolution,
there was no written opposition to, or comment on petitioner's aforesaid request.
The dispositive portion of the resolution reads:
"IN VIEW WHEREOF, the petition of Associate Justice Reynato S. Puno
for correction of his seniority ranking in the Court of Appeals is
granted. The presiding Justice of the Court of Appeals, the Honorable
Rodolfo A. Nocon, is hereby directed to correct the seniority rank of
Justice Puno from number twelve (12) to number five (5). Let copies

of this Resolution be furnished the Court Administrator and the

Judicial and Bar Council for their guidance and information." 10
A motion for reconsideration of the resolution of the Court en banc dated 29
November 1990 was later filed by Associate Justices Jose C. Campos, Jr. and Luis A.
Javellana, two (2) of the Associate Justices affected by the ordered correction. They
contend that the present Court of Appeals is a new Court with fifty one (51)
members and that petitioner could not claim a reappointment to a prior court;
neither can he claim that he was returning to his former court, for the courts where
he had previously been appointed ceased to exist at the date of his last
appointment. 11
The Court en banc in a resolution dated 17 January 1992 required the petitioner to
file his comment on the motion for reconsideration of the resolution dated 29
November 1990.
In his Comment, petitioner argues that, by virtue of Executive Order No. 33 read in
relation to B.P. Blg. 129, his seniority ranking in the Court of Appeals is now number
five (5) for, though President Aquino rose to power by virtue of a revolution, she had
pledged at the issuance of Proclamation No. 3 (otherwise known as the Freedom
Constitution) that "no right provided under the unratified 1973 Constitution (shall)
be absent in the Freedom Constitution." 12
Moreover, since the last sentence of Section 2 of Executive Order No. 33 virtually reenacted the last sentence of Sec. 3, Chapter 1 of B.P. Blg. 129, statutory
construction rules on simultaneous repeal and re-enactment mandate, according to
petitioner, the preservation and enforcement of all rights and liabilities which had
accrued under the original statute. 13 Furthermore, petitioner avers that, although
the power of appointment is executive in character and cannot be usurped by any
other branch

of

the

Government, such

power can

still

be

regulated

by

the Constitution and by the appropriate law, in this case, by the limits set
by Executive Order NO. 33 14 for the power of appointment cannot be wielded in
violation of law. 15

Justices Javellana and Campos were required by the Court to file their reply to
Justice Puno's comment on their motion for reconsideration of the resolution of the
Courten banc dated 24 January 1991.LibLex
In their Reply and Supplemental Reply, Associate Justices Javellana and Campos
submit that the appeal or request for correction filed by the petitioner was
addressed to the wrong party. They aver that as petitioner himself had alleged the
mistake to be an "inadvertent error" of the Office of the President, ergo, he should
have filed his request for correction also with said Office of the President and not
directly with the Supreme Court. 16 Furthermore, they point out that petitioner had
indeed filed with the Office of the President a request or petition for correction of his
ranking, (seniority) but the same was not approved such that his recourse should
have been an appropriate action before the proper court and impleading all parties
concerned. The aforesaid non-approval by the Office of the President they argue,
should be respected by the Supreme Court "not only on the basis of the doctrine of
separation of powers but also their presumed knowledge ability and even expertise
in the laws they are entrusted to enforce" 17 for it (the non-approval) is a
confirmation that petitioner's seniority ranking at the time of his appointment by
President Aquino was, in fact, deliberate and not an "inadvertent error" as petitioner
would have the Court believe. 18
The resolution of this controversy is not a pleasant task for the Court since it
involves not only members of the next highest court of the land but persons who
are close to members of this Court. But the controversy has to be resolved. The core
issue in this case is whether the present Court of Appeals is a new court such that it
would negate any claim to precedence or seniority admittedly enjoyed by petitioner
in the Court of Appeals and Intermediate Appellate Court existing prior to Executive
Order No. 33 or whether the present Court of Appeals is merely a continuation of
the

Court

of

Appeals

and

Intermediate

Appellate

Court

existing

prior

to

said Executive Order No. 33.

It is the holding of the Court that the present Court of Appeals is a new entity,
different and distinct from the Court of Appeals or the Intermediate Appellate Court
existing prior to Executive Order No. 33, for it was created in the wake of the

massive reorganization launched by the revolutionary government of Corazon C.

Aquino in the aftermath of the people power (EDSA) revolution in 1986.
A revolution has been defined as "the complete overthrow of the established
government in any country or state by those who were previously subject to
it" 19 or as "a sudden, radical and fundamental change in the government or
political system, usually effected with violence or at least some acts of
violence." 20 In Kelsen's book, General Theory of Law and State, it is defined as that
which "occurs whenever the legal order of a community is nullified and replaced by
a new order . . . a way not prescribed by the first order itself." 21

It was through the February 1986 revolution, a relatively peaceful one, and more
popularly known as the "people power revolution" that the Filipino people tore
themselves

away

from

an

existing

regime.

This

revolution

also

saw

the

unprecedented rise to power of the Aquino government.

From the natural law point of view, the right of revolution has been defined as "an
inherent right of a people to cast out their rulers, change their policy or effect
radical reforms in their system of government or institutions by force or a general
uprising when the legal and constitutional methods of making such change have
proved inadequate or are so obstructed as to be unavailable." 22 It has been said
that "the locus of positive law-making power lies with the people of the state" and
from there is derived "the right of the people to abolish, to reform and to alter any
existing form of government without regard to the existing constitution." 23
The

three

(3)

clauses

that

precede

the

text

of

the

Provisional

(Freedom) Constitution, 24 read:

"WHEREAS, the new government under President Corazon C. Aquino
was installed through a direct exercise of the power of the Filipino
people assisted by units of the New Armed Forces of the Philippines;
"WHEREAS, the heroic action of the people was done in defiance of
the provisions of the 1973 Constitution, as amended;

"WHEREFORE, I, Corazon C. Aquino, President of the Philippines, by

virtue of the powers vested in me by the sovereign mandate of the
people,

do

hereby

promulgate

the

following Provisional

Constitution." 25
These summarize the Aquino government's position that its mandate is taken from
"a direct exercise of the power of the Filipino people." 26
Discussions and opinions of legal experts also proclaim that the Aquino government
was "revolutionary in the sense that it came into existence in defiance of the
existing legal processes" 27 and that it was a revolutionary government "instituted
by the direct action of the people and in opposition to the authoritarian values and
practices of the overthrown government." 28
A question which naturally comes to mind is whether the then existing legal order
was overthrown by the Aquino government. "A legal order is the authoritative code
of a polity. Such code consists of all the rules found in the enactments of the organs
of the polity. Where the state operates under a written constitution, its organs may
be readily determined from a reading of its provisions. Once such organs are
ascertained, it becomes an easy matter to locate their enactments. The rules in
such enactments, along with those in the constitution, comprise the legal order of
that constitutional state." 29 It is assumed that the legal order remains as a "culture
system" of the polity as long as the latter endures 30 and that a point may be
reached, however, where the legal system ceases to be operative as a whole for it is
no longer obeyed by the population nor enforced by the officials. 31
It is widely known that Mrs. Aquino's rise to the presidency was not due to
constitutional processes; in fact, it was achieved in violation of the provisions of
the 1973 Constitution as a Batasang Pambansa resolution had earlier declared Mr.
Marcos at the winner in the 1986 presidential election. 32 Thus it can be said that
the organization of Mrs. Aquino's Government which was met by little resistance
and her control of the state evidenced by the appointment of the Cabinet and other
key officers of the administration, the departure of the Marcos Cabinet officials,

revampt of the Judiciary and the Military signalled the point where the legal system
then in effect, had ceased to be obeyed by the Filipino.
The Court holds that the Court of Appeals and Intermediate Appellate Court existing
prior to Executive Order No. 33 phased out as part of the legal system abolished by
the revolution and that the Court of Appeals established under Executive Order No.
33 was an entirely new court with appointments thereto having no relation to earlier
appointments to the abolished courts, and that the reference to precedence in rank
contained in the last sentence of Sec. 2, BP Blg. No. 129 as amended byExecutive
Order No. 33 refers to prospective situations as distinguished from retroactive ones.
But even assuming, arguendo, that Executive Order No. 33 did not abolish the
precedence or seniority ranking resulting from previous appointment to the Court of
Appeals or Intermediate Appellate Court existing prior to the 1986 revolution, it is
believed that President Aquino as head of then revolutionary government, could
disregard or set aside such precedence or seniority in ranking when she made her
appointments to the reorganized Court of Appeals in 1986.
It is to be noted that, at the time of the issuance of Executive Order No. 33,
President Aquino was still exercising the powers of a revolutionary government,
encompassing both executive and legislative powers, such that she could, if she so
desired, amend, modify or repeal any part of B.P. Blg. 129 or her own Executive
Order No. 33. It should also be remembered that the same situation was still in force
when she issued the 1986 appointments to the Court of Appeals. In other words,
President Aquino, at the time of the issuance of the 1986 appointments, modified or
disregarded the rule embodied in B.P. Blg. 129 as amended by Executive Order No.
33, on precedence or seniority in the case of the petitioner, for reasons known only
to her. Since the appointment extended by the President to the petitioner in 1986for
membership in the new Court of Appeals with its implicit ranking in the roster of
justices, was a valid appointment anchored on the President's exercise of her then
revolutionary powers, it is not for the Court at this time to question or correct that
exercise.

ACCORDINGLY, the Court GRANTS the Motion for Reconsideration and the seniority
rankings of members of the Court of Appeals, including that of the petitioner, at the
time the appointments were made by the President in 1986, are recognized and
upheld.
SO ORDERED.
Paras, Grio-Aquino, Regalado, Davide, Jr. and Romero, JJ ., concur.
||| (In re: Puno, A.M. No. 90-11-2697-CA (Resolution), [June 29, 1992])