G.R. No.
110668 February 6, 1997 The cargo arrived at the Port of Manila on September 1, 1982 aboard
SMITH, BELL & CO., INC., petitioner,
vs.
COURT OF APPEALS and JOSEPH BENGZON CHUA,1 respondents.
PANGANIBAN, J.:
The main issue raised in this case is whether a local claim or settling
agent is personally and/or solidarily liable upon a marine insurance
policy issued by its disclosed foreign principal.
This is a petition for review on certiorari of the Decision of
respondent Court2 promulgated on January 20, 1993 in CA-G.R. CV
No. 31812 affirming the decision 3 of the trial court4 which disposed
as follows:5
Wherefore, the Court renders judgment condemning the defendants
(petitioner and First Insurance Co. Ltd.) jointly and severally to pay
the plaintiff (private respondent) the amount of US$7,359.78. plus
24% interest thereon annually until the claim is fully paid, 10% as and
for attorney's fees, and the cost.
The Facts
The facts are undisputed by the parties,6 and are narrated by
respondent Court, quoting the trial court, as follows:7
The undisputed facts of the case have been succintly (sic)
summarized by the lower court(,) as follows:
. . . in July 1982, the plaintiffs, doing business under the style of Tic
Hin Chiong, Importer, bought and imported to the Philippines from
the firm Chin Gact Co., Ltd. of Taipei; Taiwan, 50 metric tons of
Dicalcium Phosphate, Feed Grade F-15% valued at US$13,000.00 CIF
Manila. These were contained in 1,250 bags and shipped from the
Port of Kaohsiung, Taiwan on Board S.S. "GOLDEN WEALTH" for the
Port on (sic) Manila. On July 27, 1982, this shipment was insured by
the defendant First Insurance Co. for US$19,500.00 "against all risks"
at port of departure under Marine Policy No. 1000M82070033219,
with the note "Claim, if any, payable in U.S. currency at Manila (Exh.
"1", 'D" for the plaintiff) and with defendant Smith, Bell, and Co.
stamped at the lower left side of the policy as "Claim Agent."
the above-mentioned carrying vessel and landed at port on
September 2, 1982. thereafter, the entire cargo was discharged to
the local arrastre contractor, Metroport Services Inc. with a number
of the cargo in apparent bad order condition. On September 27,
1982, the plaintiff secured the services of a cargo surveyor to conduct
a survey of the damaged cargo which were (sic) delivered by
plaintiff's broker on said date to the plaintiffs premises at 12th
Avenue, Grace Park, Caloocan City. The surveyor's report (Exh. "E")
showed that of the 1,250 bags of the imported material, 600 were
damaged by tearing at the sides of the container bags and the
contents partly empty. Upon weighing, the contents of the damaged
bags were found to be 18,546.0 kg short. Accordingly, on October 16
following, the plaintiff filed with Smith, Bell, and Co., Inc. a formal
statement of claim (Exh. "G") with proof of loss and a demand for
settlement of the corresponding value of the losses, in the sum of
US$7,357.78.00. (sic) After purportedly conveying the claim to its
principal, Smith, Bell, and Co., Inc. informed the plaintiff by letter
dated February 15, 1983 (Exh."G-2") that its principal offered only
50% of the claim or US$3,616.17 as redress, on the alleged ground of
discrepancy between the amounts contained in the shipping agent's
reply to the claimant of only US$90.48 with that of Metroport's. The
offer not being acceptable to the plaintiff, the latter wrote Smith,
Bell, & Co. expressing his refusal to the "redress" offer. contending
that the discrepancy was a result of loss from vessel to arrastre to
consignees' warehouse\which losses were still within the "all risk"
insurance cover. No settlement of the claim having been made, the
plaintiff then caused the instant case to be filed. (p. 2, RTC Decision;
p. 142, Record).
Denying any liability, defendant-appellant averred in its answer that
it is merely a settling or claim agent of defendant insurance company
and as SUCH agent, it is not personally liable under the policy in which
it has not even taken part of. It then alleged that plaintiff-appellee
has no cause of action against it.
Defendant The First Insurance Co. Ltd. did not file an Answer, hence
it was declared in default.
After due trial and proceeding, the lower court rendered a decision
favorable to plaintiff-appellee. It ruled that plaintiff-appellee has fully
established the liability of the insurance firm on the subject insurance
contract as the former presented concrete evidence of the amount
of losses resulting from the risks insured against which were
supported, by reliable report and assessment of professional cargo
surveyor. As regards defendant-appellant, the lower court held that
since it is admittedly a claim agent of the foreign insurance firm doing
business in the Philippines justice is better served if said agent is
made liable without prejudice to its right of action against its
principal, the insurance firm. . . .
The Issue
"Whether or not a local settling or claim agent of a disclosed principal
— a foreign insurance company — can be held jointly and severally
liable with said principal under the latter's marine cargo insurance
policy, given that the agent is not a party to the insurance contract"
8 — is the sole issue-raised by petitioner.
Petitioner rejects liability under the said insurance contract, claiming
that: (1) it is merely an agent and thus not personally liable to the
party with whom it contracts on behalf of its principal; (2) it had no
participation at all in the contract of insurance; and (3) the suit is not
brought against the real party-in-interest.9
On the other hand, respondent Court in ruling against petitioner
disposed of the main issue by citing a case it decided in 1987, where
petitioner was also a party-litigant. 10 In that case, respondent Court
held that petitioner as resident agent of First Insurance Co. Ltd. was
"authorized to settle claims against its principal. Its defense that its
authority excluded personal liability must be proven satisfactorily.
There is a complete dearth of evidence supportive of appellant's non-
responsibility as resident agent." The ruling continued with the
statement that "the interest of justice is better served by holding the
settling or claim agent jointly and severally liable with its principal."
11
Likewise, private respondent disputed the applicability of the cases
of E Macias & Co. vs. Warner, Barnes & Co. 12 and Salonga vs.
Warner, Barnes & Co., Ltd. 13 invoked by petitioner in its appeal.
According to private respondent, these two cases impleaded only the
"insurance agent" and did not include the principal. While both the
foreign principal — which was declared in default by the trial court
— and petitioner, as claim agent, were found to be solidarily liable in
this case, petitioner still had "recourse" against its foreign principal.
Also, being a contract of adhesion, an insurance agreement must be
strictly construed against the insurer. 14
The Court's Ruling
There are three reasons why we find for petitioner.
First Reason: Existing Jurisprudence
Petitioner, undisputedly a settling agent acting within the scope of its
authority, cannot be held personally and/or solidarily liable for the
obligations of its disclosed principal merely because there is allegedly
a need for a speedy settlement of the claim of private respondent. In
the leading case of Salonga vs. Warner, Barnes & Co., Ltd. this Court
ruled in this wise: 15
We agree with counsel for the appellee that the defendant is a
settlement and adjustment agent of the foreign insurance company
and that as such agent it has the authority to settle all the losses and
claims that may arise under the policies that may be issued by or in
behalf of said company in accordance with the instructions it may
receive from time to time from its principal, but we disagree with
counsel in his contention that as such adjustment and settlement
agent, the defendant has assumed personal liability under said
policies, and, therefore, it can be sued in its own right. An adjustment
and settlement agent is no different from any other agent from the
point of view of his responsibility (sic), for he also acts in a
representative capacity. Whenever he adjusts or settles a claim, he
does it in behalf of his principal, and his action is binding not upon
himself but upon his principal. And here again, the ordinary rule of
agency applies. The following authorities bear this out:
"An insurance adjuster is ordinarily a special agent for the person or
company for whom he acts, and his authority is prima facie
coextensive with the business intrusted to him. . . ."
"An adjuster does not discharge functions of a quasi-judicial nature,
but represents his employer, to whom he owes faithful service, and
for his acts, in the employer's interest, the employer is responsible so
long as the acts are done while the agent is acting within the scope
of his employment." (45 C.J.S., 1338- 1340.)
It, therefore, clearly appears that the scope and extent of the
functions of an adjustment and settlement agent do not include
personal liability. His functions are merely to settle and adjusts claims
in behalf of his principal if those claims are proven and undisputed,
and if the claim is disputed or is disapproved by the principal, like in
the instant case, the agent does not assume any personal liability.
The recourse of the insured is to press his claim against the principal.
(Emphasis supplied).
The foregoing doctrine may have been enunciated by this Court in
1951, but the passage of time has not eroded its value or merit. It still
applies with equal force and vigor.
Private respondent's contention that Salonga does not apply simply
because only the agent was sued therein while here both agent and
principal were impleaded and found solidarily liable is without merit.
Such distinction is immaterial. The agent can not be sued nor held
liable whether singly or solidarily with its principal.
Every cause of action ex contractu must be founded upon a contract,
oral or written, either express or implied. 16 The only "involvement"
of petitioner in the subject contract of insurance was having its name
stamped at the bottom left portion of the policy as "Claim Agent."
Without anything else to back it up, such stamp cannot even be
deemed by the remotest interpretation to mean that petitioner
participated in the preparation of said contract. Hence, there is no
privity of contract, and correspondingly there can be no obligation or
liability, and thus no Cause of action against petitioner attaches.
Under Article 1311 17 of the Civil Code, contracts are binding only
upon the parties (and their assigns and heirs) who execute them. The
subject cargo insurance was between the First Insurance Company,
Ltd. and the Chin Gact Co., Ltd., both of Taiwan, and was signed in
Taipei, Taiwan by the president of the First Insurance Company, Ltd.
and the president of the Chin Gact Co., Ltd. 18 There is absolutely
nothing in the contract which mentions the personal liability of
petitioner.
Second Reason: Absence of Solidarity Liability
May then petitioner, in its capacity as resident agent (as found in the
case cited by the respondent Court 19) be held solidarily liable with
the foreign insurer? Article 1207 of the Civil Code clearly provides
that "(t)here is a solidary liability only when the obligation expressly
so states, or when the law or the nature of the obligation requires
solidarity." The well-entrenched rule is that solidary obligation
cannot lightly be inferred. It must be positively and clearly expressed.
The contention that, in the end, it would really be First Insurance
Company, Ltd. which would be held liable is specious and cannot be
accepted. Such a stance would inflict injustice upon petitioner which
would be made to advance the funds to settle the claim without any
assurance that it can collect from the principal which disapproved
such claim, in the first place. More importantly, such ,position would
have absolutely no legal basis.
The Insurance Code is quite clear as to the Purpose and role of a
resident agent. Such agent, as a representative of the foreign
insurance company, is tasked only to receive legal processes on
behalf of its principal and not to answer personally for any insurance
claims. We quote:
Sec. 190. The Commissioner must require as a condition precedent
to the transaction of insurance business in the Philippines by any
foreign insurance company, that such company file in his office a
written power of attorney designating some person who shall be a
resident of the Philippines as its general agent, on whom any notice
provided by law or by any insurance policy, proof summons and other
legal processes may be served in all actions or other legal proceedings
against such company, and consenting that service upon such general
agent shall be admitted and held as valid as if served upon the foreign
company at its home office. Any such foreign company shall, as
further condition precedent to the transaction of insurance business
in the Philippines, make and file with the Commissioner an
agreement or stipulation, executed by the proper authorities of said
company in form and substance as follows:
The (name of company) does hereby stipulate and agree in
consideration of the permission granted by the Insurance
Commissioner to transact business in the Philippines, that if at any
time such company shall leave the Philippines, or cease to transact
business therein, or shall be without any agent in the Philippines on
whom any notice, proof of loss, summons, or legal process may be
served, then in any action or proceeding arising out of any business
or transaction which occurred in the Philippines, service of any notice
provided by law, or insurance policy, proof of loss, summons, or other
legal process may be made upon the Insurance Commissioner shall
have the same force and effect as if made upon the company.
Whenever such service of notice, proof of loss, summons or other
legal process shall be made upon the Commissioner he must, within
ten days thereafter, transmit by mail, postage paid, a copy of such
notice, proof of loss, summons, or other legal process to the company
at its home or principal office. The sending of such copy of the
Commissioner shall be necessary part of the service of the notice,
proof of loss, or other legal process. (Emphasis supplied).
Further, we note that in the case cited by respondent Court,
petitioner was found to be a resident agent of First Insurance Co. Ltd.
In the instant case however, the trial court had to order the service
of summons upon First Insurance Co., Ltd. which would not have
been necessary if petitioner was its resident agent. Indeed, from our
reading of the records of this case, we find no factual and legal bases
for the finding of respondent Court that petitioner is the resident
agent of First Insurance Co., Ltd.
Third Reason: Not Real Party-In-Interest
Lastly, being a mere agent and representative, petitioner is also not
the real party-in-interest in this case. An action is brought for a
practical purpose, that is, to obtain actual and positive relief. If the
party sued is not the proper party, any decision that may be rendered
against him would be futile, for the decision cannot be enforced or
executed. Section 2, Rule 3 of the Rules of Court identifies who the
real parties-in-interest are, thus:
Sec. 2. Parties in interest. — Every action must be prosecuted and
defended in the name of the real party in interest. All persons having
an interest in the subject of the action and in obtaining the relief
demanded shall be joined as plaintiffs. All persons who claim an
interest in the controversy or the subject thereof adverse to the,
plaintiff, or who are necessary to a complete determination or
settlement of the questions involved therein shall be joined as
defendants.
The cause of action of private respondent is based on a contract of
insurance which as already shown was not participated in by
petitioner. It is not a "person who claim(s) an interest adverse to the
plaintiff" nor is said respondent "necessary to a complete
determination or settlement of the questions involved" in the
controversy. Petitioner is improperly impleaded for not being a real-
party-interest. It will not benefit or suffer in case the action prospers.
20
Resort to Equity Misplaced
Finally, respondent Court also contends that "the interest of justice
is better served by holding the settling agent jointly and severally
liable with its principal." As no law backs up such pronouncement,
the appellate Court is thus resorting to equity. However, equity which
has been aptly described as "justice outside legality," is availed of
only in the absence of, and never against, statutory law or judicial
pronouncements. 21 Upon the other hand the liability of agents is
clearly provided for by our laws and existing jurisprudence.
WHEREFORE, in view of the foregoing considerations, the Petition is
GRANTED and the Decision appealed from is REVERSED and SET
ASIDE.
No costs.
SO ORDERED.
G.R. No. 134241 August 11, 2003
DAVID REYES (Substituted by Victoria R. Fabella), petitioner, vs.
JOSE LIM, CHUY CHENG KENG and HARRISON LUMBER, INC.,
respondents.
CARPIO, J.:
The Case
This is a petition for review on certiorari of the Decision1 dated 12
May 1998 of the Court of Appeals in CA-G.R. SP No. 46224. The Court
of Appeals dismissed the petition for certiorari assailing the Orders
dated 6 March 1997, 3 July 1997 and 3 October 1997 of the Regional
Trial Court of Paranaque, Branch 2602 ("trial court") in Civil Case No.
95-032.
The Facts
On 23 March 1995, petitioner David Reyes ("Reyes") filed before the
trial court a complaint for annulment of contract and damages
against respondents Jose Lim ("Lim"), Chuy Cheng Keng ("Keng") and
Harrison Lumber, Inc. ("Harrison Lumber").
The complaint3 alleged that on 7 November 1994, Reyes as seller and
Lim as buyer entered into a contract to sell ("Contract to Sell") a
parcel of land ("Property") located along F.B. Harrison Street, Pasay
City. Harrison Lumber occupied the Property as lessee with a monthly
rental of P35,000. The Contract to Sell provided for the following
terms and conditions:
1. The total consideration for the purchase of the aforedescribed
parcel of land together with the perimeter walls found therein is
TWENTY EIGHT MILLION (P28,000,000.00) PESOS payable as follows:
(a) TEN MILLION (P10,000,000.00) PESOS upon signing of this
Contract to Sell;
(b) The balance of EIGHTEEN MILLION (P18,000,000.00) PESOS shall
be paid on or before March 8, 1995 at 9:30 A.M. at a bank to be
designated by the Buyer but upon the complete vacation of all the
tenants or occupants of the property and execution of the Deed of
Absolute Sale. However, if the tenants or occupants have vacated the
premises earlier than March 8, 1995, the VENDOR shall give the
VENDEE at least one week advance notice for the payment of the
balance and execution of the Deed of Absolute Sale.
2. That in the event, the tenants or occupants of the premises subject
of this sale shall not vacate the premises on March 8, 1995 as stated
above, the VENDEE shall withhold the payment of the balance of
P18,000,000.00 and the VENDOR agrees to pay a penalty of Four
percent (4%) per month to the herein VENDEE based on the amount
of the downpayment of TEN MILLION (P10,000,000.00) PESOS until
the complete vacation of the premises by the tenants therein.4
The complaint claimed that Reyes had informed Harrison Lumber to
vacate the Property before the end of January 1995. Reyes also
informed Keng5 and Harrison Lumber that if they failed to vacate by
8 March 1995, he would hold them liable for the penalty of P400,000
a month as provided in the Contract to Sell. The complaint further
alleged that Lim connived with Harrison Lumber not to vacate the
Property until the P400,000 monthly penalty would have
accumulated and equaled the unpaid purchase price of P18,000,000.
On 3 May 1995, Keng and Harrison Lumber filed their Answer6
denying they connived with Lim to defraud Reyes. Keng and Harrison
Lumber alleged that Reyes approved their request for an extension
of time to vacate the Property due to their difficulty in finding a new
location for their business. Harrison Lumber claimed that as of March
1995, it had already started transferring some of its merchandise to
its new business location in Malabon.7
On 31 May 1995, Lim filed his Answer8 stating that he was ready and
willing to pay the balance of the purchase price on or before 8 March
1995. Lim requested a meeting with Reyes through the latter’s
daughter on the signing of the Deed of Absolute Sale and the
payment of the balance but Reyes kept postponing their meeting. On
9 March 1995, Reyes offered to return the P10 million down payment
to Lim because Reyes was having problems in removing the lessee
from the Property. Lim rejected Reyes’ offer and proceeded to verify
the status of Reyes’ title to the Property. Lim learned that Reyes had
already sold the Property to Line One Foods Corporation ("Line One")
on 1 March 1995 for P16,782,840. After the registration of the Deed
of Absolute Sale, the Register of Deeds issued to Line One TCT No.
134767 covering the Property. Lim denied conniving with Keng and
Harrison Lumber to defraud Reyes.
On 2 November 1995, Reyes filed a Motion for Leave to File Amended
Complaint due to supervening facts. These included the filing by Lim
of a complaint for estafa against Reyes as well as an action for specific
performance and nullification of sale and title plus damages before
another trial court.9 The trial court granted the motion in an Order
dated 23 November 1995.
In his Amended Answer dated 18 January 1996,10 Lim prayed for the
cancellation of the Contract to Sell and for the issuance of a writ of
preliminary attachment against Reyes. The trial court denied the
prayer for a writ of preliminary attachment in an Order dated 7
October 1996.
On 6 March 1997, Lim requested in open court that Reyes be ordered
to deposit the P10 million down payment with the cashier of the
Regional Trial Court of Parañaque. The trial court granted this
motion.
On 25 March 1997, Reyes filed a Motion to Set Aside the Order dated
6 March 1997 on the ground the Order practically granted the reliefs
Lim prayed for in his Amended Answer.11 The trial court denied
Reyes’ motion in an Order12 dated 3 July 1997. Citing Article 1385 of
the Civil Code, the trial court ruled that an action for rescission could
prosper only if the party demanding rescission can return whatever
he may be obliged to restore should the court grant the rescission.
The trial court denied Reyes’ Motion for Reconsideration in its
Order13 dated 3 October 1997. In the same order, the trial court
directed Reyes to deposit the P10 million down payment with the
Clerk of Court on or before 30 October 1997.
On 8 December 1997, Reyes14 filed a Petition for Certiorari15 with
the Court of Appeals. Reyes prayed that the Orders of the trial court
dated 6 March 1997, 3 July 1997 and 3 October 1997 be set aside for
having been issued with grave abuse of discretion amounting to lack
of jurisdiction. On 12 May 1998, the Court of Appeals dismissed the
petition for lack of merit.
Hence, this petition for review.
The Ruling of the Court of Appeals
The Court of Appeals ruled the trial court could validly issue the
assailed orders in the exercise of its equity jurisdiction. The court may
grant equitable reliefs to breathe life and force to substantive law
such as Article 138516 of the Civil Code since the provisional
remedies under the Rules of Court do not apply to this case.
The Court of Appeals held the assailed orders merely directed Reyes
to deposit the P10 million to the custody of the trial court to protect
the interest of Lim who paid the amount to Reyes as down payment.
This did not mean the money would be returned automatically to
Lim.
The Issues
Reyes raises the following issues:
1. Whether the Court of Appeals erred in holding the trial court could
issue the questioned Orders dated March 6, 1997, July 3, 1997 and
October 3, 1997, requiring petitioner David Reyes to deposit the
amount of Ten Million Pesos (P10,000,000.00) during the pendency
of the action, when deposit is not among the provisional remedies
enumerated in Rule 57 to 61 of the 1997 Rules on Civil Procedure.
2. Whether the Court of Appeals erred in finding the trial court could
issue the questioned Orders on grounds of equity when there is an
applicable law on the matter, that is, Rules 57 to 61 of the 1997 Rules
on Civil Procedure.17
The Court’s Ruling
Reyes’ contentions are without merit.
Reyes points out that deposit is not among the provisional remedies
enumerated in the 1997 Rules of Civil Procedure. Reyes stresses the
enumeration in the Rules is exclusive. Not one of the provisional
remedies in Rules 57 to 6118 applies to this case. Reyes argues that
a court cannot apply equity and require deposit if the law already
prescribes the specific provisional remedies which do not include
deposit. Reyes invokes the principle that equity is "applied only in the
absence of, and never against, statutory law or x x x judicial rules of
procedure."19 Reyes adds the fact that the provisional remedies do
not include deposit is a matter of dura lex sed lex.20
The instant case, however, is precisely one where there is a hiatus in
the law and in the Rules of Court. If left alone, the hiatus will result in
unjust enrichment to Reyes at the expense of Lim. The hiatus may
also imperil restitution, which is a precondition to the rescission of
the Contract to Sell that Reyes himself seeks. This is not a case of
equity overruling a positive provision of law or judicial rule for there
is none that governs this particular case. This is a case of silence or
insufficiency of the law and the Rules of Court. In this case, Article 9
of the Civil Code expressly mandates the courts to make a ruling
despite the "silence, obscurity or insufficiency of the laws."21 This
calls for the application of equity,22 which "fills the open spaces in
the law."23
Thus, the trial court in the exercise of its equity jurisdiction may
validly order the deposit of the P10 million down payment in court.
The purpose of the exercise of equity jurisdiction in this case is to
prevent unjust enrichment and to ensure restitution. Equity
jurisdiction aims to do complete justice in cases where a court of law
is unable to adapt its judgments to the special circumstances of a case
because of the inflexibility of its statutory or legal jurisdiction.24
Equity is the principle by which substantial justice may be attained in
cases where the prescribed or customary forms of ordinary law are
inadequate.25
Reyes is seeking rescission of the Contract to Sell. In his amended
answer, Lim is also seeking cancellation of the Contract to Sell. The
trial court then ordered Reyes to deposit in court the P10 million
down payment that Lim made under the Contract to Sell. Reyes
admits receipt of the P10 million down payment but opposes the
order to deposit the amount in court. Reyes contends that prior to a
judgment annulling the Contract to Sell, he has the "right to use,
possess and enjoy"26 the P10 million as its "owner"27 unless the
court orders its preliminary attachment.28
To subscribe to Reyes’ contention will unjustly enrich Reyes at the
expense of Lim. Reyes sold to Line One the Property even before the
balance of P18 million under the Contract to Sell with Lim became
due on 8 March 1995. On 1 March 1995, Reyes signed a Deed of
Absolute Sale29 in favor of Line One. On 3 March 1995, the Register
of Deeds issued TCT No. 13476730 in the name of Line One.31 Reyes
cannot claim ownership of the P10 million down payment because
Reyes had already sold to another buyer the Property for which Lim
made the down payment. In fact, in his Comment32 dated 20 March
1996, Reyes reiterated his offer to return to Lim the P10 million down
payment.
On balance, it is unreasonable and unjust for Reyes to object to the
deposit of the P10 million down payment. The application of equity
always involves a balancing of the equities in a particular case, a
matter addressed to the sound discretion of the court. Here, we find
the equities weigh heavily in favor of Lim, who paid the P10 million
down payment in good faith only to discover later that Reyes had
subsequently sold the Property to another buyer.
In Eternal Gardens Memorial Parks Corp. v. IAC,33 this Court held the
plaintiff could not continue to benefit from the property or funds in
litigation during the pendency of the suit at the expense of whomever
the court might ultimately adjudge as the lawful owner. The Court
declared:
In the case at bar, a careful analysis of the records will show that
petitioner admitted among others in its complaint in Interpleader
that it is still obligated to pay certain amounts to private respondent;
that it claims no interest in such amounts due and is willing to pay
whoever is declared entitled to said amounts. x x x
Under the circumstances, there appears to be no plausible reason for
petitioner’s objections to the deposit of the amounts in litigation
after having asked for the assistance of the lower court by filing a
complaint for interpleader where the deposit of aforesaid amounts is
not only required by the nature of the action but is a contractual
obligation of the petitioner under the Land Development Program
(Rollo, p. 252).
There is also no plausible or justifiable reason for Reyes to object to
the deposit of the P10 million down payment in court. The Contract
to Sell can no longer be enforced because Reyes himself
subsequently sold the Property to Line One. Both Reyes and Lim are
now seeking rescission of the Contract to Sell. Under Article 1385 of
the Civil Code, rescission creates the obligation to return the things
that are the object of the contract. Rescission is possible only when
the person demanding rescission can return whatever he may be
obliged to restore. A court of equity will not rescind a contract unless
there is restitution, that is, the parties are restored to the status quo
ante.34
Thus, since Reyes is demanding to rescind the Contract to Sell, he
cannot refuse to deposit the P10 million down payment in court.35
Such deposit will ensure restitution of the P10 million to its rightful
owner. Lim, on the other hand, has nothing to refund, as he has not
received anything under the Contract to Sell.36
In Government of the Philippine Islands v. Wagner and Cleland
Wagner,37 the Court ruled the refund of amounts received under a
contract is a precondition to the rescission of the contract. The Court
declared:
The Government, having asked for rescission, must restore to the
defendants whatever it has received under the contract. It will only
be just if, as a condition to rescission, the Government be required to
refund to the defendants an amount equal to the purchase price, plus
the sums expended by them in improving the land. (Civil Code, art.
1295.)
The principle that no person may unjustly enrich himself at the
expense of another is embodied in Article 2238 of the Civil Code. This
principle applies not only to substantive rights but also to procedural
remedies. One condition for invoking this principle is that the
aggrieved party has no other action based on contract, quasi-
contract, crime, quasi-delict or any other provision of law.39 Courts
can extend this condition to the hiatus in the Rules of Court where
the aggrieved party, during the pendency of the case, has no other
recourse based on the provisional remedies of the Rules of Court.
Thus, a court may not permit a seller to retain, pendente lite, money
paid by a buyer if the seller himself seeks rescission of the sale
because he has subsequently sold the same property to another
buyer.40 By seeking rescission, a seller necessarily offers to return
what he has received from the buyer. Such a seller may not take back
his offer if the court deems it equitable, to prevent unjust enrichment
and ensure restitution, to put the money in judicial deposit.
There is unjust enrichment when a person unjustly retains a benefit
to the loss of another, or when a person retains money or property
of another against the fundamental principles of justice, equity and
good conscience.41 In this case, it was just, equitable and proper for
the trial court to order the deposit of the P10 million down payment
to prevent unjust enrichment by Reyes at the expense of Lim.42
WHEREFORE, we AFFIRM the Decision of the Court of Appeals.
SO ORDERED.
G.R. No. 211737
SERGIO R. OSMEÑA III, Petitioner,
vs.
DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS
SECRETARY JOSEPH EMILIO A. ABAYA, MACTAN-CEBU
INTERNATIONAL AIRPORT AUTHORITY (MCIAA), THE PRE-
QUALIFICATION, BIDS AND A WARDS COMMITTEE (PBAC) FOR THE
MACTAN-CEBU INTERNATIONAL AIRPORT PROJECT THROUGH ITS
CHAIRMAN, UNDERSECRETARY JOSE PERPETUO M. LOTILLA, GMR
INFRASTRUCTURE, LTD. ANDMEGAWIDE CONSTRUCTION
CORPORATION, Respondents.
x-----------------------x
G.R. No. 214756
BUSINESS FOR PROGRESS MOVEMENT as represented by
MEDARDO C. DEACOSTA, JR., Petitioner,
vs.
DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS,
GMR-MEGAWIDE CEBU AIRPORT CORPORATION, Respondents.
DECISION
VILLARAMA, JR., J.:
Before us are the consolidated petitions for certiorari and injunction
to restrain public respondents from awarding the Mactan-Cebu
International Airport (MCIA) Project to private respondents GMR
Infrastructure Limited (GMR) and Megawide Construction
Corporation (MCC). Petitioners subsequently prayed for invalidation
of the award after private respondents won the public bidding.
The Facts
The MCIA Project consists of the construction of a new passenger
terminal with all associated infrastructure facilities; construction of
apron for the new passenger terminal; rehabilitation and expansion
of the existing terminal along with all associated infrastructure and
facilities; installation of all the required equipment and other
associated facilities; installation of the required information
technology and other equipment commensurate with the
operations; and operation and maintenance of both passenger
terminals during the concession period.1 The project is being
implemented by the Department of Transportation and
Communications (DOTC) under the provisions of Republic Act (R.A.)
No. 6957 as amended by R.A. No. 7718, otherwise known as the
"Build-Operate-and-Transfer (BOT) Law."
On December 21, 2012, the Pre-qualification, Bids and Awards
Committee (PBAC) caused the publication of the invitation to pre-
qualify and bid for the MCIA Project.2 PBAC sets as criteria the
following: (1) legal qualification; (2) technical qualification; and (3)
financial capability requirements.3 On December 27, 2012, the DOTC
and Mactan-Cebu International Airport Authority (MCIAA) issued the
Instructions to Prospective Bidders (ITPB).4
On February 13, 2013, the PBAC conducted a Pre-Qualification
Conference. In its Resolution5 dated May 14, 2013, the PBAC
recommended the pre-qualification of the following prospective
bidders:
1. AAA Airport Partners;
2. Filinvest-CAI Consortium;
3. First Philippine Airports;
4. GMR Infrastructure & Megawide Consortium;
5. MPIC-JGS Airport Consortium;
6. Premier Airport Group; and
7. San Miguel & Incheon Airport Consortium.
After the submission and approval of the technical proposals
submitted by the pre-qualified bidders, the PBAC proceeded with
accepting their financial proposals. The financial bids were ranked in
terms of "premium" to the government such that "[a]ll bids received
by the DOTC were 'premium' offers, meaning the money would go
directly to the government and would come on top of the cost to
develop the airport."6 The seven bids, from highest to lowest, are:
1
GMR-Megawide Consortium
Php 14,404,570,002.00
2
Filinvest-Changi Airport Consortium
Php 13 ,999 ,999 ,999 .99
3
Premier Airport Group
Php 12,500,088,888.88
4 Consortium Member
MPIC-JGS Airport Holdings, Inc. xxxx
Php 11,230,000.000.00 WHEREAS, upon completion of verification of the information,
5 representations and statements made in its Qualification
AAA Airport Partners Documents, Bid Letter, Technical Proposal and Financial Proposal and
Php 11,088,888,889.00 recommendation of the TWG [Technical Working Group] under its
6 report dated 2 April 2014, (i) the PBAC has not found any deficiency
San Miguel & Incheon Airport in the Financial Proposal, (ii) nor has any misrepresentation been
Php 9,050,000,000.00 found in the information, representations and statements made by
7 the GMR Infrastructure & Megawide Consortium in its Qualification
First Philippine Airports Documents, Technical Proposal, Financial Proposal, and (iii) nor has
Php 4, 700,000,000.007 the Consortium been found to have engaged in any Corrupt Practice,
On April 3, 2014, PBAC issued a Resolution8 recommending GMR- Fraud, Collusion, Coercion, Undesirable and Restrictive Practice,
Megawide Consortium as the winning bidder for the MCIA Project. Conflict of Interest, or violated the Lock-up Rules. A copy of the TWG
The resolution reads in part: Report dated 2 April 2014 is attached as Annex "DD";
WHEREAS, the GMR Infrastructure & Megawide Consortium, formed NOW THEREFORE, upon review and deliberation, pursuant to and in
by Megawide Construction Corporation ("Megawide") and GMR accordance with the provisions, constraints and limitations under the
Infrastructure Limited ("GMR") qualified under the Technical and BOT Law, BOT Law IRR, and the rules under the ITPB and ITB, the
Financial Qualification requirements, through the following entities: PBAC hereby resolves to recommend to the Honorable Secretary of
Development Experience the DOTC and the Board of the MCIAA: (i) to designate GMR
Infrastructure & Megawide Consortium as the Winning Bidder for the
* Delhi International Airport (P) Limited (DIAL) Project, and (ii) to consequently issue the Notice of Award to GMR
Affiliate of GMR Infrastructure Limited Infrastructure & Megawide Consortium.9
* GMR Hyderabad International Airport Limited (GHIAL) On the same day, Senator Sergio R. Osmeña III (petitioner Osmeña
Affiliate of GMR Infrastructure Limited III) filed in this Court a petition for certiorari and prohibition with
Operation and Maintenance application for temporary restraining order and/or writ of
preliminary injunction (G.R. No. 211737) praying that this Court (a)
* Delhi International Airport (P) Limited (DIAL) immediately issue an order restraining the public respondents from
Affiliate of GMR Infrastructure Limited further acting on the bid of private respondents; (b) issue an order
* GMR Hyderabad International Airport Limited (GHIAL) enjoining public respondents, their agents, representatives or assigns
Affiliate of GMR Infrastructure Limited from issuing a Notice of A ward and executing a Concession
Financial Qualification Agreement for the MCIA Project for private respondents; and (c) give
due course to his petition, and after due proceedings to render
* Megawide Construction Corp.
judgment declaring private respondents as unqualified bidder and
making the injunction permanent.
On April 4, 2014, DOTC and MCIAA issued the Notice of Award10 to
GMR-Megawide Consortium. Pursuant to Section 8.1 of the
Instruction to Bidders (ITB), private respondents were directed to
submit the required documents and pay the Bid Amount to MCIAA.
On April 7, 2014, petitioner Osmeña III filed a Supplemental Petition
reiterating his prayer for injunctive reliefs and for this Court to
further restrain the implementation of the Notice of A ward and
render judgment declaring the same as null and void.
Private respondents GMR and MCC, and public respondents DOTC,
MCIAA and PBAC filed their respective Comments.
Meanwhile, private respondents complied with the post-award
requirements, including the payment of the Php 14.4 Billion bid
amount to MCIAA. On April 22, 2014, the Concession Agreement was
executed between DOTC and MCIAA, and GMR-Megawide
Consortium.
On October 31, 2014, a petition for injunction was filed by Business
for Progress Movement (BPM), represented by Medardo C. Deacosta,
Jr. (G.R. No. 214756). Petitioner BPM sought to restrain the turn-over
of the operation and maintenance of the MCIA to GMR-Megawide
Consortium. With the simultaneous imposition of increased terminal
fees, BPM claims that it stands to suffer great and irreparable damage
and injury once GMR-Megawide Consortium takes over the
operation and management of the MCIA.
On November 1, 2014, DOTC turned over to GMR-Megawide
Consortium the operation and maintenance of the MCIA.
Petitioners' Arguments
G.R. No. 211737
The following grounds are set forth in the petition:
I financial health and has been offloading several assets and its stake
THE PBAC ILLEGALLY QUALIFIED THE GMR-MEGA WIDE
CONSORTIUM DESPITE ITS PATENT VIOLATION OF THE CONFLICT OF
INTEREST RULE.
II
THE PBAC ILLEGALLY REFUSED TO DISQUALIFY THE GMR-MEGAWIDE
CONSORTIUM IN THE FACE OF UNREFUTED EVIDENCE OF GMR'S
POOR FINANCIAL HEALTH AND TRACK RECORD IN ITS
INTERNATIONAL AIRPORT OPERATIONS.
III
PUBLIC RESPONDENTS ILLEGALLY FAILED TO AND LATER REFUSED TO
DISQUALIFY PRIVATE RESPONDENTS FOR VIOLA TING THE CONFLICT
OF INTEREST RULE AND THEIR OTHER INCAPACITIES EVEN IF IT WAS
THEIR MINISTERIAL DUTY TO DO SO.
IV
THE PUBLIC RESPONDENTS ILLEGALLY ACCORDED PRIVATE
RESPONDENTS AN UNDUE ADV ANT AGE AND/OR ACTED WITH
UNDUE BIAS INF A VOR OF PRIVATE RESPONDENTS.
Petitioner Osmeña III argues that PBAC should have disqualified
GMR-Megawide Consortium because it violated the conflict of
interest rule when it failed to disclose that Mr. Tan Shri Bashir Ahmad
bin Abdul Majid was a director of two subsidiaries of the GMR-
Megawide Consortium, and is also the Managing Director of Malaysia
Airport Holdings Berhad (MAHB), which joined the bidding for MCIA
Project as member of the First Philippine Airports Consortium. He
asserts that this rule is mala prohibita; hence, it does not matter
whether the violation was intentional or not, and the penalty of
disqualification should be imposed. GMR-Megawide's violation
disadvantaged the other bidders as they were restricted from
entering into similar arrangements, and thus deprived them of an
even playing field or a fair and competitive bidding.
Another ground of disqualification raised by petitioner Osmeña III
concerns the financial and technical capabilities of GMR as his
investigation and online research showed that GMR was in dire
in various infrastructure projects to meet its financial obligations. He
likewise discovered GMR's unsavory record involving the Delhi
International Airport Pvt. Ltd. (DIAL), which is the concessionaire for
GMR's Indira Gandhi International Airport at Delhi. According to the
Auditor General of India, (i) 27% of the project cost for Delhi Airport
was not funded by DIAL but charged to the travelling public; (ii)
outsourcing of contracts to GMR joint venture companies was not on
arms-length basis in violation of contract; and (iii) DIAL violated the
master plan and incurred delay in the completion of the project. The
Male International Airport (MIA) case also proves GMR's lack of
technical qualification to undertake the MCIA Project. GMR Male
International Airport Pvt. Ltd. (GMIAL), an indirect subsidiary of GMR,
through its direct subsidiary GMR Infrastructure (Mauritius) Limited,
entered into a Concession Agreement dated June 28, 2010 with the
Maldives Airport Company Ltd. (MACL) and the Maldives
Government Ministry of Finance and Treasury for the Rehabilitation,
Expansion, Modernization, Operation and Maintenance of Male
International Airport for a period of 25 years. However, on November
27, 2012, the Maldives Government and MACL declared the
Concession Agreement void ab initio and gave GMIAL seven days to
vacate the MIA, which prompted GMIAL to initiate arbitration
proceedings. GMIAL sought a declaration that it was entitled to
adjust the fees payable to MACL by virtue of the invalidity of portions
of the Concession Agreement, while MACL sought the declaration of
the Concession Agreement as void ab initio. GMIAL had applied for
an injunction before the courts of Singapore to restrain the Maldives
Government from interfering with the performance of the
Concession Agreement pending arbitration proceedings. On appeal,
the Singapore Court of Appeal set aside the preliminary injunction
issued by a High Court judge of Singapore. Thus, effective December
8, 2012, the Maldives Government and MACL took control of the
MIA.
Following a privilege speech he delivered at the Senate, petitioner
Osmeña III said that the Senate Committee on Public Services, in fact,
conducted two hearings on the matter where all the respondents
were represented. It was alleged that during these hearings, it was
established that: (a) PBAC did not compare the submissions of the
various members of consortia or bidders in order to determine the
existence of conflict of interest; (b) public respondents did not look
into cross-directorships or conflict of interest violations of GMR even
if the rules compel an inspection based on the submission of private
respondents, and even refused to impose the penalty of
disqualification when the violation was pointed out; (c) GMR
admitted that MAHB is GMR' s partner in several of its airport
operations and that the Managing Director of MAHB is indeed a
member of at least two subsidiaries of GMR; and (d) granting there
was doubt in the existence of a violation of the conflict of interest
rule, public respondents did not take the precaution of asking for the
opinion of the Department of Justice (DOJ).
Citing the case of Agan v. PIATCO,11 petitioner Osmeña III claims the
parallelisms between said case and the present controversy are too
uncanny to ignore, and as in Agan, the Court should exercise its
solemn constitutional duty to nullify the award of the MCIA Project
to private respondents and avert serious damage to a project that the
Province of Cebu looks forward to. GMR also confirmed its operating
losses during the Senate hearings, and its present financial situation
indicates that GMR Infra may not be earning enough money to meet
its interest payments on time. As to the Airport Development Fund
being levied by DIAL, the Supreme Court of India found that the levy
made by DIAL during the period March 1, 2009 to April 23, 2010, prior
to the notice from Airport Economic Regulatory Authority (AERA)
permitting DIAL to subsequently continue the levy, was made
contrary to law.
Petitioner Osmeña III further avers that during the hearing conducted
by the House of Representatives on the MCIA Project on March 12,
2014, it was revealed that MCC failed to complete its school building
project despite two extensions granted to it. This is relevant because
under the Procurement Law (R.A. No. 9184), if a bidder is more than
15% delayed in any of its infrastructure projects, it cannot be
awarded a new contract. While the MCIA Project is under the BOT
Law, the underlying principle still holds for the simple reason that
what is involved is a public contract. The foregoing negative findings
affecting both partners in the GMR-Megawide Consortium should
have compelled the PBAC, at the very least, to disqualify said
consortium during the post-qualification as they were unable to
demonstrate viable commercial operations.
G.R. No. 214756
Petitioner BPM also expressed doubts on the financial capacity of the
winning bidder, GMR-Megawide Consortium, to undertake the
construction, development, operation and maintenance of the MCIA
in view of several news reports about GMR Infrastructure's state of
being "debt-ridden," as it had to raise funds through sale, equity issue
and divest a few road and power plants in order to pay its corporate
loans. It was also reported that GMR asked the US private equity firm
KKR & Co. LP to provide about $175 Million in a debt and equity deal.
Apparently, the cancellation by the Maldives Government of GMR' s
contract for modernizing the MIA had greatly affected GMR's
revenues coming from its airport business.
With GMR's lack of financial capacity, BPM contends that the GMR-
Megawide Consortium had come up with a scheme of imposing
increased terminal fees to cover the operating costs and expansion
of the MCIA. From a news report published in the Business Mirror on
October 13, 2014, BPM learned that the MCIA board approved on
October 10, 2014 higher passenger service charge (PSC) rates,
commonly known as terminal fees, "to help fund the expansion and
cover increasing operating costs as well as comply with the 25-year
concession agreement between MCIAA and private airport operator
GMR-Megawide Cebu Airport Corp. (GMCAC)," and that effective
November 1, a domestic passenger would have to pay Php220, Php20
more than the current Php200 fee, while an international passenger
would have to shell out Php750, or Php200 more than the current
Php550; the domestic PSC rate will increase further to Php300
effective January 1, 2016.12
Petitioner maintains that all the requisites for the issuance of a writ
of preliminary injunction are present in this case. Petitioner as
taxpayer has a clear and unmistakable right to be protected as the
imposition of the terminal fees in the increased amount as well as the
turn-over of the MCIA to private respondents despite the fact that
the latter has no financial capacity will be prejudicial to petitioners.
There is also an urgent and paramount necessity for the issuance of
the writ considering the scheduled turn-over on November 1, 2014,
and petitioner has no other plain, speedy and adequate remedy in
the course of law except this petition, for which purpose it is ready,
able and willing to post the necessary bond in the amount that this
Court may determine. BMP claims that there appears a clear and
present danger that the instant petition will be rendered nugatory
and ineffectual, and that the highest interest of justice will not be
served if the act complained of - that is, the immediate turn-over of
the operations of the MCIA to private respondents, would not be
enjoined.
In its Consolidated Reply, BPM argues that the petition has not been
mooted by the actual turnover of MCIA's operation to private
respondents since the terminal fees will continue to increase in 2016
to defray the cost of the project. GMR's financial incapacity, as
confirmed by online articles on GMR's moves to bring down its debt
burden and finance its projects, will thus continue to cause grave and
irreparable damage to BPM. Direct injury is being suffered by BPM
members who are taxpayers frequently travelling to Cebu and
Mactan from the increased terminal fees.
Respondents' Arguments
G.R. No. 211737
Megawide Construction Corp.
On procedural grounds, MCC contends that the petition should be
dismissed for fatal defects or infirmities. First, the petition raises
several factual questions which this Court is not required to
entertain, particularly in a petition for certiorari and prohibition.
Second, the petition for certiorari under Rule 65 of the Rules of Court
is improper and cannot be pursued against the public respondents,
more so against GMR and MCC, which do not exercise quasi-judicial
or ministerial functions vis-a-vis the bidding process for the MCIA
Project. And third, petitioner has no locus standi to file the petition,
and neither has he shown any justification for this Court to disregard
his lack of personality to maintain this suit.
MCC argues that the petition lacks merit considering that: (a) the
petition assails matters which require to be left to the sole
determination of the executive department, particularly the PBAC
and DOTC, and thus is beyond judicial cognizance; (b) petitioner's
prayer to enjoin the public respondents from issuing a Notice of
Award or executing a Concession Agreement- both of which have
already occurred- is already moot and thus is not a proper subject of
controversy; (c) even assuming that this Court can take cognizance of
the petition, petitioner failed to allege, much less establish a violation
of law but rather, merely relies on DOTC and MCIAA issuances - the
ITPB and ITB - both of which the PBAC has faithfully applied in this
instance, in accordance with its intent and interpretation, thus
negating any grave abuse of discretion; (d) contrary to petitioner's
own interpretation of PBAC's ITPB and ITB, which interpretation finds
no basis therein and in law, there is no conflict of interest; and (e)
contrary to petitioner's allegations, GMR-Megawide Consortium is
financially and technically capable of undertaking the MCIA Project,
and developing, maintaining, and operating the renovated MCIA.
Opposing the application for a writ of preliminary injunction, MCC
asserts that petitioner failed to show (1) a clear, unmistakable legal
right that demands protection nor a prima facie entitlement to the
relief demanded in the petition, and hence no injunctive relief must
issue; and (2) that he, or even the other bidders, the public and the
State, will suffer grave and irreparable injury from the continuation
of the Award, the execution of the Concession Agreement, and/or
the MCIA Project. On the contrary, grave and irreparable injury will
result should the bidding process be enjoined and, consequently, the
project be delayed. MCC contends that under previous and existing
laws, the policy has been that a national government infrastructure
project may not be enjoined save for exceptional circumstances, in
order to avoid unnecessary costs and, more importantly, delay in the
enjoyment of benefits from such project. In this case, the
government agencies have regularly performed their duty and the
winning Consortium is eager to comply with their orders. All the
queries raised by the other bidders have been addressed by private
respondents and what remains to be done is the work that ought to
be the result from the bidding procedure. The MCIA Project, among
the present administration's Public-Private Partnership (PPP)
projects should not be delayed any further on the basis of
unsubstantiated allegations.
GMR Infrastructure Ltd.
GMR points out similar defects in the petition such as the failure to
attach certified true copy of the assailed order, judgment or
resolution since petitioner only attached the transcripts of
stenographic notes taken during the Senate hearings which are mere
recording of the proceedings therein; lack of requisite standing of
petitioner who has not raised any constitutional issue nor alleged any
violation of application of a law, but merely points to a supposed
unequal enforcement of PBAC's instructions to the bidders; non-
submission of his income tax return, having sued as a taxpayer; no
other Filipino, local or foreign bidder, joined his petition despite his
self-serving claim that the petition involves issues of transcendental
importance; and lack of any allegation whatsoever that respondents
usurped legislative powers.
On the merits of the case, GMR emphasizes that the assailed acts
involve policy decisions that are not subject to judicial review. The
situation in Agan v. PIATCO is also not the same herein because the
public respondents did not disregard any legal requirement when
they determined that GMR-Megawide was the most qualified to
undertake the MCIA Project. Assuming that the assailed acts can be
reviewed by this Court, petitioner nevertheless chose an improper
remedy as his petition raises several questions of fact while relying
merely on online/internet sources. This notwithstanding, GMR
addressed the concerns regarding its financial capability in its letter
to PBAC dated December 20, 2013 and also during the Senate
hearings attended by its representatives. Notably, GMR-Megawide
already paid the upfront premium to the government in the amount
of Php14,404,570,002.99 which shows the consortium has the
financial strength and capacity to deliver the Project.
On the conflict of interest issue, GMR explains that this was already
clarified by public respondents during the Senate hearings. It points
out that having a "common director" is obviously not the same as a
director of one Consortium member being "also directly involved in
any capacity related to the Bidding Process" for another Bidder.
Citing the verified petition of Osmeña III, GMR avers that petitioner
could not truthfully allege having information and personal
knowledge that Mr. Bashir was also directly involved in the Bidding
Process for the GMR-Megawide Consortium, because he was not. To
remove all doubts and as required by PBAC, GMR submitted sworn
certifications to that effect. GMR maintains that the conflict of
interest rule and the examples/instances cited therein do not apply
automatically, but are always subject to discretion and evaluation by
the PBAC, and more importantly, there has to be a finding by the
DOTC/MCIAA that a conflict of interest exists before any Bidder is
disqualified.
On petitioner's claim that respondents violated the Equal Protection
Clause, GMR argues that concededly there is no statute or law here
that infringed the constitutional principle. What clearly emerges is
petitioner's grievance that the Conflict of Interest provision in the
bidding rules was supposedly not followed, and on that premise
private respondents should be disqualified and the award in their
favor set aside. These consequences are not only harsh but
unwarranted. For assuming the said rule may be considered as
"statute" that public respondents had breached, such breach is not a
violation of the Equal Protection Clause that will give rise to a
constitutional issue. Citing jurisprudence, GMR asserts that "an
erroneous or mistaken performance of a statutory duty, although a
violation of the statute, is not without more a denial of the equal
protection of the laws." Public respondents' acts in this regard do not
amount to violation of the Equal Protection Clause, as the facts do
not show there was "intentional or purposeful discrimination" when
they determined that no conflict of interest exists for GMR-
Megawide Consortium.
GMR further contends that petitioner is not entitled to a writ of
preliminary injunction, as petitioner Osmefia III has no clear and
unmistakable right, not being a bidder himself and having failed to
establish any grave abuse of discretion committed by the public
respondents in the performance of their duty. The alleged grave and
irreparable injury, what petitioner feared as "bad precedent" in
public bidding, is not irreparable but imaginary. On the contrary, it is
the government and the public who will suffer irreparable injury if an
injunction is issued that will further delay the project for the
expansion and development of an international airport in the
Province of Cebu.
G.R. No. 214756
GMR and Megawide (GMR-Megawide Cebu Airport Corp.)
The consortium now called the GMR-Megawide Cebu Airport Corp.
(GMCAC), reiterates its previous arguments, given the similar
procedural infirmities of the present petition, and those addressing
the issue of its alleged lack of financial capacity. The consortium's
financial capability has already been evaluated by the PBAC --
including the controversies or issues raised by the other bidders --
which finally determined that GMR-Megawide Consortium is the
most qualified to undertake the MCIA Project.
GMCAC asserts that BMP's prayer to enjoin the turn-over of MCIA's
operation and maintenance to GMCAC and the imposition of the
increased PSC rates have already occurred. Hence, this issue is
already moot and academic, and not the proper subject of this
petition for injunction. More, there is no grave and irreparable injury
that will be inflicted upon the State and the general public should the
turn-over of the MCIA and increased PSC rates be implemented as
these are part of the MCIA Project and in pursuance of the
Concession Agreement. Since the alleged financial incapacity of GMR
was unfounded, based merely on news reports and online materials,
in contrast to official documents submitted to and evaluated by the
PBAC, petitioner's fear that it will be prejudiced by GMR's financial
incapacity is likewise baseless.
G.R. Nos. 211737 & 214756
DOTC, MCIAA and PBAC
Public respondents argue that a direct resort to this Court is
premature and improper under the doctrine of hierarchy of courts.
Having failed to establish special and important reasons to support
petitioners' invocation of this Court's original jurisdiction, the
petitions should be dismissed. It is likewise asserted that the mere
claim that the case is of transcendental importance or that it has an
economic impact would not present a special and important ground
that would justify the exercise of this Court's original jurisdiction and
ignoring the hierarchy of courts.
There is also no showing that Medardo Deacosta, Jr. was authorized
to file the petition in behalf of petitioner BPM. The certification of
non-forum shopping submitted by Deacosta did not include proof of
his authority to sign the said certificate for BPM.
Both petitioners have no legal standing to institute the present
petitions. The petition in G.R. No. 211737 does not identify any
specific constitutional question or issue, the principal requirement
for legal standing in public suits. The invocation of violation of the
equal protection clause does not qualify as a constitutional question
or issue. Neither has petitioner Osmeña III sufficiently shown that the
funds to be expended are derived from taxation and that he will be
directly injured by the award of the MCIA Project to GMCAC, and
eventually, by the implementation thereof. Further, there is no
allegation of disregard of specific constitutional or statutory
prohibition, nor of direct injury to be sustained by petitioner.
G.R. No. 214756 should also be dismissed on the same ground as
BPM failed to show how the increase in terminal fees will constitute
an illegal disbursement of public funds. Besides, the petition has
become moot and academic with the turn-over of the MCIA to
GMCAC on November 1, 2014. Hence, there is nothing more to enjoin
and there is no more justiciable controversy to be resolved. Even
assuming that this case has not become moot, injunction is clearly
not proper as the requisites for the issuance of the writ have not been
satisfied.
On the merits of the case, public respondents contend that petitioner
Osmeña's reliance on Agan v. PIATCO is improper as the ruling
therein is not on all fours with the present case. This Court ruled in
Agan that "the crucial issues submitted for resolution are of first
impression and they entail the proper legal interpretation of key
provisions of the Constitution, the BOT Law and its Implementing
Rules and Regulations"13 and hence, the specific provisions of law
violated by PIA TCO were identified. In stark contrast, the present
case does not present constitutional issues. Moreover, this Court in
Agan ruled that the PBAC erroneously evaluated PIATCO's financial
ability to fund the subject project when it speculated on PIATCO's
future financial ability on the basis of the documents it submitted.
Here, however, the proper procedure was observed in evaluating the
qualifications of all the bidders.
Public respondents maintain that they exercised due diligence and
strictly complied with the rules in evaluating the submitted bids. In
concluding that GMR-Megawide Consortium did not violate Conflict
of Interest Rule, they applied the clear words of the ITPB, ITB and
Special Bid Bulletins. The interpretation of the rule is lodged in the
DOTC being the government agency tasked to implement the MCIA
Project. No advantage was given to GMR-Megawide Consortium or
to First Philippine Airports Consortium which had in fact given the
lowest bid in terms of premium.
As to GMR-Megawide Consortium's qualifications for the MCIA
Project, public respondents assert that they exercised due diligence
and acted within jurisdiction when the PBAC determined that GMR-
Megawide Consortium is the most qualified in terms of technical
experience and financial capability. It was stressed that under the
ITPB, the detailed evaluation of the compliance by the Prospective
Bidder with the Legal, Technical and Financial Qualification
Requirements shall be based solely upon the qualification documents
submitted.
As to the issues concerning GMR's dispute with the Maldives
Government over the Male International Airport, as well as the
alleged violations of DIAL, the concessionaire for the Indira Gandhi
International Airport, these have already been threshed out and
addressed by GMR during the post-qualification stage. On the other
hand, petitioner's reference to online articles that pertain to MCC
deserves no consideration. Said materials are hearsay and unofficial
and do not warrant the disqualification of a Bidder. As between those
online articles and the official submissions - certifications,
qualifications, documents and financial statements submitted by the
bidders, respondent PBAC is mandated by law to give preference and
weight to the latter in determining the track record or technical
qualifications of a prospective bidder. Indeed, PBAC would do
injustice against a prospective bidder if, notwithstanding that it
passed all the qualifications provided by law and the applicable rules,
it will be disqualified merely on the basis of hearsay evidence. While
PBAC has the right to seek clarifications and make inquiries regarding
information supplied by the prospective bidders in the qualification
documents, it cannot be expected to consider every possible
allegation as it would just delay the entire bidding process. Having
exercised its function within the parameters of the law, relevant rules
and regulations and the ITPB, the PBAC cannot be faulted if it finds
that GMR passed all the qualifications requirements provided by the
rules and the ITPB. Hence, there is no merit in petitioner Osmeña's
argument that public respondents "illegally refused to disqualify" the
GMR-Megawide Consortium.
Issues
From the foregoing, the core issues to be resolved in the present
controversy are: (1) whether GMR-Megawide Consortium is a
qualified bidder; (2) whether the increased terminal fees imposed by
the winning bidder, GMCAC, is legal; (3) whether petitioners are
entitled to injunctive relief.
Our Ruling
The petitions are without merit.
Preliminaries
A. Legal Standing
Legal standing or locus standi refers to a personal and substantial
interest in a case such that the party has sustained or will sustain
direct injury because of the challenged governmental act.14 The
requirement of standing, which necessarily sharpens the
presentation of issues, relates to the constitutional mandate that this
Court settle only actual cases or controversies.15 Thus, generally, a
party will be allowed to litigate only when (1) he can show that he
has personally suffered some actual or threatened injury because of
the allegedly illegal conduct of the government; (2) the injury is fairly
traceable to the challenged action; and (3) the injury is likely to be
redressed by a favorable action.16
In David v. Macapagal-Arroyo,17 we explained the rules on locus
standi, as follows:
Locus standi is defined as "a right of appearance in a court of justice
on a given question." In private suits, standing is governed by the
"real-parties-in interest rule" as contained in Section 2, Rule 3 of the
1997 Rules of Civil Procedure, as amended. It provides that "every
action must be prosecuted or defended in the name of the real party
in interest." Accordingly, the "real-party-in interest" is "the party who
stands to be benefited or injured by the judgment in the suit or the
party entitled to the avails of the suit." Succinctly put, the plaintiffs
standing is based on his own right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here,
the plaintiff who asserts a "public right" in assailing an allegedly illegal
official action, does so as a representative of the general public. He
may be a person who is affected no differently from any other
person. He could be suing as a "stranger," or in the category of a
"citizen," or "taxpayer." In either case, he has to adequately show
that he is entitled to seek judicial protection. In other words, he has
to make out a sufficient interest in the vindication of the public order
and the securing of relief as a "citizen" or "taxpayer."
Case law in most jurisdictions now allows both "citizen" and
"taxpayer" standing in public actions. The distinction was first laid
down in Beauchamp v. Silk, where it was held that the plaintiff in a
taxpayer's suit is in a different category from the plaintiff in a citizen's
suit. In the former, the plaintiff is affected by the expenditure of
public funds, while in the latter, he is but the mere instrument of the
public concern. As held by the New York Supreme Court in People ex
rel Case v. Collins: "In matter of mere public right, however .. . the
people are the real parties .... It is at least the right, if not the duty, of
every citizen to interfere and see that a public offence be properly
pursued and punished, and that a public grievance be remedied."
With respect to taxpayer's suits, Terr v. Jordan held that "the right of
a citizen and a taxpayer to maintain an action in courts to restrain the
unlawful use of public funds to his injury cannot be denied."
However, to prevent just about any person from seeking judicial
interference in any official policy or act with which he disagreed with,
and thus hinders the activities of governmental agencies engaged in
public service, the United State Supreme Court laid down the more
stringent "direct injury" test in Ex Parte Levitt, later reaffirmed in
Tileston v. Ullman. The same Court ruled that for a private individual
to invoke the judicial power to determine the validity of an executive
or legislative action, he must show that he has sustained a direct
injury as a result of that action, and it is not sufficient that he has a
general interest common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In
People v. Vera, it held that the person who impugns the validity of a
statute must have "a personal and substantial interest in the case
such that he has sustained, or will sustain direct injury as a result."
The Vera doctrine was upheld in a litany of cases, such as, Custodio
v. President of the Senate, Manila Race Horse Trainers' Association v.
De la Fuente, Pascual v. Secretary of Public Works and Anti-Chinese
League of the Philippines v. Felix.18 (Italics in the original; emphasis
and underscoring supplied)
The nature of personal interest in public suits was summarized as
follows:
For a party to have locus standi, one must allege "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."
Because constitutional cases are often public actions in which the
relief sought is likely to affect other persons, a preliminary question
frequently arises as to this interest in the constitutional question
raised.
When suing as a citizen, the person complaining must allege that he
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.
When the issue concerns a public right, it is sufficient that the
petitioner is a citizen and has an interest in the execution of the laws.
For a taxpayer, one is allowed to sue where there is an assertion that
public funds are illegally disbursed or deflected to an illegal purpose,
or that there is a wastage of public funds through the enforcement
of an invalid or unconstitutional law. The Court retains discretion
whether or not to allow a taxpayer's suit.
In the case of a legislator or member of Congress, an act of the
Executive that injures the institution of Congress causes a derivative
but nonetheless substantial injury that can be questioned by
legislators. A member of the House of Representatives has standing
to maintain inviolate the prerogatives, powers and privileges vested
by the Constitution in his office.
An organization may be granted standing to assert the rights of its
members, but 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 does not suffice to clothe it with standing.
As regards a local government unit (LGU), it can seek relief in order
to protect or vindicate an interest of its own, and of the other
LGUs.19 (Emphasis supplied; citations omitted)
Here, BPM alleges a direct personal injury for its members who as
frequent travelers to Cebu and Mactan will be burdened by the
increased terminal fees imposed by the private respondents upon
taking over the operation and management of MCIA. On the other
hand, petitioner Osmeña III claims to be suing as a legislator, taxpayer
and citizen asserting a public right in the stringent application of the
bidding rules on the qualifications of private respondents for the
MCIA Project.
In any case, locus standi being a mere procedural technicality,20 the
Court has, in the exercise of its discretion, relaxed the rules on
standing when the issues involved as of "transcendental importance"
to the public.21 The Court, through Associate Justice Florentino P.
Feliciano (retired and now deceased), provided the following
instructive guides as determinants in determining whether a matter
is of transcendental importance: (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 the
questions being raised.22
In not a few cases, the Court, in keeping with its duty under the
Constitution to determine whether the other branches of
government have kept themselves within the limits of the
Constitution and the laws and have not abused the discretion given
them, has brushed aside technical rules of procedure.23
In Agan v. PIATCO, also involving a controversy in the qualifications
of the winning bidder for the construction and operation of the
country's premier international airport, the Court resolved to grant
standing to the petitioners in view of "the serious legal questions
involved and their impact on public interest."24 Although the factual
milieu in this case is not similar and no constitutional issue was raised
by petitioners, we hold that the same rationale in Agan justifies the
relaxation of the rules on standing.
B. Hierarchy of Courts
While this Court has original jurisdiction over petitions for certiorari,
prohibition, mandamus, quo warranto, and habeas corpus, such
jurisdiction is shared with the Court of Appeals and the Regional Trial
Courts. It is judicial policy that --
x x x a direct invocation of the Supreme Court's jurisdiction is allowed
only when there are special and important reasons therefor, clearly
and especially set out in the petition. Reasons of practicality, dictated
by an increasingly overcrowded docket and the need to prioritize in
favor of matters within our exclusive jurisdiction, justify the existence
of this rule otherwise known as the "principle of hierarchy of courts."
More generally stated, the principle requires that recourse must first
be made to the lower-ranked court exercising concurrent jurisdiction
with a higher court.25 (Italics omitted; emphasis supplied)
The Court thus declared in Heirs of Bertuldo Hinog v. Melicor,26 that
it will not entertain direct resort to it unless the redress desired
cannot be obtained in the appropriate courts, and exceptional and
compelling circumstances, such as cases of national interest and of
serious implications, justify the availment of the extraordinary
remedy of writ of certiorari, calling for the exercise of its primary
jurisdiction.27
After a thorough study and evaluation of the issues involved, the
Court is of the view that exceptional circumstances exist in this case
to warrant the relaxation of the rule. The Court can resolve the
factual issues from the available evidence on record.
Mactan-Cebu International Airport is the second busiest airport in
the country after the Ninoy Aquino International Airport, handling
millions of passengers and thousands of aircraft movements every
year. Opened in the mid-1960s, it is owned by the DOTC and
managed by the MCIAA.28 The multi-billion expansion and
development project for MCIA is being implemented through the PPP
program. The Government's PPP program has two objectives: (1)
increase private investment in infrastructure through solicited mode;
and (2) follow good governance practices in preparing, bidding and
implementing the PPP projects.29 There is no dispute then that this
case is of paramount national interest for it raises serious questions
on the evaluation of bids by the public respondents.
C. Mootness
Respondents' contention that the case was mooted by the Notice of
A ward and turnover of operations of the MCIA to GMCAC likewise
deserves scant consideration. For even in cases where the
supervening events had made the cases moot, the Court did not
hesitate to resolve the legal or constitutional issues raised to
formulate controlling principles to guide the bench and the bar, and
the public.30 Hence, the subsequent issuance of Notice of A ward,
execution of the Concession Agreement and turn-over to GMCAC of
the operation and maintenance of MCIA, did not remove the issue of
GMCAC's qualifications from the ambit of judicial review.
Substantive Issues
No Grave Abuse of Discretion
in PBAC's Determination that GMR-Megawide Consortium
was a Qualified Bidder
For public biddings of PPP contracts under the BOT Law and
Implementing Rules and Regulations (IRR), the evaluation of bids is
undertaken in two stages. The first-stage evaluation involves the
assessment of the technical, operational, environmental and
financing viability of the proposal as contained in the bidder's first
envelopes vis-a-vis the prescribed requirements and
criteria/minimum standards and basic parameters prescribed in the
bidding documents. The second stage evaluation shall involve the
assessment and comparison of the financial proposals of the bidders.
Within three days from completion of the financial evaluation, the
PBAC submits its recommendation to the head of the Implementing
Agency (IA) or Local Government Unit (LGU). Upon approval of the
recommendation, the head of the IA or LGU will issue a notice of
award to a winning proponent. Subject to compliance with the post-
award requirements in the notice of award, the PPP contract shall be
executed and signed by the winning bidder and the head of the IA or
LGU.31
During the post-qualification evaluation and prior to the final award
to GMR-Megawide Consortium as the Highest Bidder, the latter's
disqualification was sought by the Second Highest Bidder, Filinvest
Development Corporation (FDC), on the following grounds: (a) GMR's
questionable record in airport construction and development; (2)
GMR's financial incapacity; and (3) violation of the Conflict of Interest
Rule.
In its letters32 dated December 13, 2013 and December 16, 2013
addressed to PBAC Chairman Undersecretary Jose Perpetuo M.
Lotilla, FDC, citing published newspaper reports, brought up the
following issues: (1) cancellation by the Maldives Government of the
GMR Group's contract for modernizing the Male Ibrahim Nasir
International Airport (Male International Airport) and which
cancellation was affirmed in a Singapore court; (2) the rapid rise of
GMR's debt level and MCC's equity of only roughly P8 Billion; (3)
GMR's exit from the management of Istanbul Gokcen International
Airport in Istanbul, Turkey, supposedly as part of the GMR Group's
articulated strategy of "develop-build-create value-divest," which
does not augur well for the long-term commitment intended for the
25-year concession period of the MCIA Project; (4) critical findings of
the Comptroller and Auditor General of India based on the
performance audit of the implementation of the public-private
partnership for the Indira Gandhi International Airport at Delhi, India,
including the development fee imposed on travelers which was used
by DIAL (Delhi Airport concessionaire) to finance 27% of the project
cost, outsourcing of numerous contracts which are not arms-length
transactions and in violation of the Operation Management and
Development Agreement (OMDA) because these were given to joint
venture companies in which DIAL had substantial equity interest,
violation of the Master Plan and delay in project completion, financial
documents showing GMR posting net loss from operations in the last
three years and debt levels increasing in relation to its equity; and (4)
concern as to MCC's equity in view of several PPP projects awarded
to it which involve substantial amount in project costs.
As part of the Technical Qualifications, the ITPB mandates
compliance with certain supporting documents from entities who
fulfill the requirements for Development Experience, and Operation
and Maintenance Experience:
3. The entity whose experience is being submitted in fulfillment of
this requirement - whether the Prospective Bidder or a Consortium
Member and any Affiliates of any of these entities, should submit a
certificate from an Auditor, as per the format provided at Annex QD-
11 to satisfactorily establish its claim.
4. The entity, whose experience is being submitted in fulfillment of
this requirement - whether the Prospective Bidder or a Consortium
Member and any Affiliates of any of these entities must certify that
they have no Unsatisfactory Performance Record as per the format
provided at Annex QD-4A or Annex QD-4B.33 (Emphasis supplied)
The certificate from an Auditor, as per the format provided in Annex
QD-11, serves as evidence of having the claimed Development
Experience, and in Annex QD-13, a certificate for details of eligible
projects for Operation and Maintenance Experience, such as the
number of years in operation of the airport and the annual passenger
throughout registered by the airport.34 The more relevant document
is the certificate from the entities whose experience is being
submitted in fulfillment of the Development Experience, and
Operation and Maintenance Experience, of "No Unsatisfactory
Performance Record."
As per the format prescribed in Annex QD-4A, the Notarized
Certification of Absence of Unsatisfactory Performance Record, the
entity fulfilling the Development Experience, and Operation and
Maintenance Experience, certifies that it does not have any record of
unsatisfactory performance in any of its projects and contracts.
x x x "Unsatisfactory Performance" means any of the following:
1. within the last five (5) years prior to the Qualification Documents
Submission Date -
a. failure to satisfactorily perform any of its material obligations on
any contract, as evidenced by an imposition of a judicial
pronouncement or arbitration award;
b. expulsion from any project or contract;
c. termination or suspension of any of its projects or contracts due to
breach of its obligations; or
d. material violations of laws and/or regulations applicable to any of
its projects or contracts xx x.35
Evaluating the information provided by FDC and the explanation
given by private respondents concerning the latter's performance
record, PBAC in its Resolution dated April 3, 2014, stated its findings
and conclusion, viz.:
I. Existence of Unsatisfactory Performance in relation to GMR-Male
Pursuant to QD-4A of the ITPB, the relevant project or contract refers
to any project or contract of the entity or entities whose experience
is being used to meet any of the Technical Qualification
Requirements which was commenced or in the process of
implementation within the last five (5) years before the Qualification
Documents Submission Date, and not just to the particular projects
or contracts being submitted to meet such Technical Qualification
Requirements. Based on the clear reading of the provisions under
QD-4A, the performance record of GMR-Male is not relevant to the
Project, considering its credentials were not used to satisfy any
qualification requirement. The PBAC also appreciated that -
• the information pertaining to the Male Airport Contract was
disclosed by GMR during the Pre-qualification process, even if it was
not a required submission; and
• in a letter dated 23 December 2013 addressed to the DOTC,
through Undersecretary Rene K. Limcaoco, Isabel Chaterton of the
International Finance Corporation ("IFC") Public-Private Partnership
Advisory Services for South Asia said that "IFC has been consistently
of the view that the sanctity of the Male airport concession
agreement should be upheld and have noted publicly our strong
belief that the process leading to the award of the concession for that
project was conducted in an open and transparent manner and in
accordance with international best practice. We understand the
matter is now under arbitration which is the appropriate dispute
resolution mechanism provided for in the concession agreement. We
should also point out, that in June 2013, the Anti-Corruption
Commission of the Maldives concluded that there was no corruption
involved in the award and concession of the Male airport to GMR-
MAHB." IFC is a member of the World Bank Group and the largest
global development institution focused exclusively on the private
sector in developing countries. A copy of IFC's letter dated 20
December 2013 is attached hereto as Annex "AA."
II. Misrepresentation as to the Absence of Unsatisfactory
Performance of DIAL
Based on the definition of unsatisfactory performance under the ITPB
and ITB, absence of unsatisfactory performance must be evidenced
by the imposition of a judicial pronouncement or arbitration award.
The CAG Report is neither a judicial pronouncement nor an
arbitration award. Therefore, based on the definition, the CAG
Report is not sufficient basis for an adverse finding. On further
evaluation of the documentary submissions and at the close of
several discussions, it was determined that the CAG Report is
primarily addressed to the relevant government agencies of India.
The PBAC noted, among others, that the charging of development fee
and outsourcing to service providers through a procurement process
is allowed under the contract.
It has been reported as well that the Ministry of Civil Aviation has
contested the findings under the CAG Report. Briefly, the Ministry
has said that: (i) the charging of the development fee is authorized
under the relevant law and known to all bidders prior to bid
submission, (ii) there was no deviation from the Master Plan,
particularly as regards the extent of permissible commercial
development as follows:
"Ministry of Civil Aviation has gone through the report of the CAG on
Indira Gandhi International Airport, Delhi as tabled in Parliament
today and strongly refutes the loss figures and other allegations as
made in the report.
"The calculation of presumptive gain from the commercial use of land
at the Delhi Airport is totally erroneous and misleading as it simply
adds the nominal value of the projected revenue, without taking the
net present value. In fact the net present value of the figure quoted
by CAG is Rs 13795 crores only. CAG has further failed to appreciate
that 46% of this amount would be payable to AAI as revenue share.
"It is also pointed out that the levy of Development Fee is under
Section 22 (A) of AAI Act, 1994 and was in the knowledge of all the
bidders prior to the bidding process. Hence, contrary to what the CAG
has said, the levy of Development Fee by DIAL was not a post
contractual benefit provided to DIAL at the cost of passengers.
Further, the levy of the Development Fee has been upheld by the
Supreme Court, which has already examined and rejected all the
issues now being raised by CAG in its report.
"On the issue of lease of Airport land, it is clarified that the land has
not been given to DIAL on rental basis. Rs100 is just a token amount
for the purpose of the Conveyance Deed. The determining factor for
grant of concession to the bidder was the Gross Revenue share
quoted by the bidders. As a result, Airports Authority of India (AAI)
now receives 45.99% share of Gross Revenues of DIAL and 26% of all
Dividends. Benefit to AAI is likely to be more than Rs 3 lakh crores in
this process during the entire Concession period. AAI has already got
its revenue share of Rs.2936 crores in the last 6 years and likely to get
Rs. 1770 crores in the year 2012-13 and Rs. 2287 crores in the year
2013-14. The AAI share of revenue from DIAL is further going to
constantly rise every year in the balance concession period.
"It may also be noted that the right to use 5% of Airport land for
commercial purpose was also defined in the bid and known to all
bidders."
III. Misrepresentation as to financial capacity of GMR Infrastructure
& Megawide Consortium
Pursuant to the ITPB and ITB, to be financially qualified to bid for the
Project, a bidder must meet the following Financial Qualification
requirements: (a) (i) Net Worth of at least Php 2.0 billion, or its
equivalent as of its latest audited financial statements, which must
be for financial year ending not earlier than 31 December 2011, or (ii)
a Set-Aside Deposit equivalent to the same amount, and (b) a letter
testimonial from a domestic universal/commercial bank or an
international bank with a subsidiary/branch in the Philippines or any
international bank recognized by the BSP attesting that the
Prospective Bidder and/or members of the Consortium are banking
with them, and that they are in good financial standing and/or are
qualified to obtain credit accommodations from such banks to
finance the Project. These parameters for the determination of
financial qualification requirements are consistent with Section 5.4(c)
of the BOT Law IRR.
On further evaluation, the PBAC determined that, for purposes of
meeting the Financial Qualification requirement, QD-8, with
supporting information, was submitted by Megawide for the GMR
Infrastructure & Megawide Consortium. Megawide's submission was
previously determined to have fulfilled these requirements.
Furthermore, in the course of completing the financial evaluation,
the PBAC examined the Financial Proposal comprising the Bid
Amount and the Final Draft Concession Agreement signed and
executed by the Authorized Representative of the GMR
Infrastructure & Megawide Consortium pursuant to the ITB, and the
PBAC has not found any deficiency in the financial proposal.
IV. Long term commitment to Project
Filinvest-CAI Consortium also shared its observation that it doubts
the long term commitment of GMR Infrastructure & Megawide
Consortium to the Project in view of its reported intention to
withdraw from the ISGIA. The PBAC noted this observation and
resolved that the reported divestment from Istanbul Airport does not
affect the evaluation of GMR Infrastructure & Megawide
Consortium's qualification to undertake the Project under the terms
of the Concession Agreement. Divestment or withdrawal by a
Consortium Member from the Project is permitted, subject to the
applicable Lock-up Rules under V-05 and V -06 of the ITPB, as well, as
under the Concession Agreement. This is an important provision in
the ITB, ITPB and Concession Agreement, validated in the course of
the market sounding exercise undertaken for the Project and in
keeping with the declared policy under the BOT Law to provide the
most appropriate incentives to mobilize private resources for the
purpose of financing the construction, operation and maintenance of
infrastructure and development projects. Further, under Annex BL-1,
GMR Infrastructure & Megawide Consortium has certified that it will
undertake the project in accordance with the Concession Agreement,
including the applicable Lock-up Rules, which undertaking was
affirmed in a letter addressed to PBAC dated 20 December 2013.
There is no reason to doubt the commitment in view of the certificate
of good standing from the Ministry of Defence of Turkey, which
states that the operating company founded by Limak Holding, GMR
Infrastructure Limited and MAHB has been operating the Istanbul
Sabiha Goeken International Airport Terminal satisfactorily per the
provisions of the Implementation Agreement executed in 2008 and
that the transfer of the forty percent (40%) shares held by GMR and
its affiliates to Malaysia Airports MSC Sdn Bhd has been duly
approved by the Undersecretary for Defense Industries on 20 March
2014, consistent with the terms of the Implementation Agreement.
V. Violation of Conflict of Interest
The ITB, in Section 5.6(c) states in part:
Each Bidder may submit only one Bid Proposal. To ensure a level
playing field and a competitive Bidding Process, Bidders (in the case
of Consortia, each Consortium Members), including their Affiliates,
must not have any Conflict of Interest. Without limiting the generality
of what would constitute a Conflict of Interest, any of the following
will be considered a Conflict of Interest:
xxx xxx xxx
c. a member of the board of directors, partner, officer, employee or
agent of a Bidder, any Consortium Member, or any of their Affiliates
(of either the Bidder or any of its Consortium Members), is also
directly involved in any capacity related to the Bidding Process for the
Project for another Bidder, any Consortium Member of any other
Bidder, or any of their Affiliates (of either the Bidder or any of its
Consortium Members), within a period of two (2) years prior to the
publication of the Invitation to Pre-Qualify and Bid and one (1) year
after award of the Project.
The same conflict of interest arises in case of professional advisors
except when prior written disclosure was made to their client-
Bidders, DOTCIMCIAA and the Public-Private Partnership Center,
including the submission of a Conflict Management Plan for this
purpose. A written consent or clearance to this effect shall likewise
be secured from DOTC.
xxx xxx xxx
(This is similar to the Conflict of Interest provision appearing in the
ITPB, Section V04-d.)
Consequently, in Annex BL-1 of the ITB, or the Form of Bid Letter, a
bidder is required to state under oath that it "including all of its
Consortium Members, and all of the entities it has proposed to
comply with the Qualification Requirements under the ITPB, have not
at any time (i) engaged in any Corrupt Practice, Fraud, Collusion,
Coercion, Undesirable Practice, or Restrictive Practice, (ii) have a
Conflict of Interest (iii) violated the Lock-Up Rules or (iv) has
Unsatisfactory Performance Record."
During the pre-qualification stage, a question was submitted seeking
clarification on Section V04-d of the ITPB on Conflict of Interest. In its
answer to the query under SBB No. 06-2013, the PBAC stated that
"without limiting the discretion of the PBAC to determine what
constitutes Conflict of Interest, direct involvement shall mean actual
participation in the deliberations and decision-making for the bidding
process of the Prospective Bidder that would give the director
knowledge I information regarding the bid of such Prospective
Bidder."
In June 2013, GMR Infrastructure & Megawide Consortium submitted
the following query:
PBAC to please confirm our understanding that a conflict of interest
shall arise with respect to a director, partner, officer, advisor,
employee, or agent if:
1. such director, partner, officer, advisor, employee, or agent of a
Bidder (Bidder "A ") is directly involved in the Bidding Process for the
Project; and
2. such director, partner, officer, advisor, employee, or agent is also
directly involved in any capacity related to the Bidding Process for the
Project for another Bidder ("Bidder B "), any Consortium Member of
Bidder B, or any of their Affiliates.
Accordingly, a conflict of interest will arise only if such director,
partner, officer, advisor, employee, or agent is directly involved in the
Bidding Process for the Project with respect to both Bidders A and B.
PBAC to further confirm that for purposes of Section 5. 6(c) of the
Instructions to Bidders, "direct involvement" shall mean actual
participation in the deliberations and decision-making for the bidding
process of the Bidder that would give the director, officer, advisor,
employee or agent knowledge or information regarding the bid of the
Bidder, as previously clarified by the PBAC in SBB 6-2013, Query 4.
The Consortium, further suggested the following revision to the ITB:
A member of the board of directors, partner, officer, employee or
agent of a Bidder, any Consortium Member, or any of their Affiliates
(of either the Bidder or any of Consortium Members), who is directly
involved in the Bidding Process for the Project with respect to a
Bidder. is also directly involved in any capacity related to the Bidding
Process for the Project for another Bidder, any Consortium Member
of any other Bidder, or any of their Affiliates (of either the Bidder or
any of its Consortium Members), within a period of two (2) years
prior to the publication of the Invitation to Pre-Qualify and Bid and
one (1) year after award of the Project.
The same conflict of interest arises in case of professional advisors
except when prior written disclosure was made to their client-
Bidders, DOTCIMCIAA, and the Public-Private Partnership Centre,
including the submission of a Conflict Management Plan for this
purpose. A written consent or clearance to this effect shall likewise
be secured from DOTC.
For purposes of this provision, direct involvement shall mean actual
participation in the deliberations and decision-making for the bidding
process of the Bidder that would give the director, officer, advisor,
employee, or agent knowledge or information regarding the bid of
the Bidder.
The PBAC, under SBB No. 11-2013 Query No. 5 released in August
2013, replied as follows:
Please be guided that in cases of conflict of interest under ITB, Sec.
5.6(c), Bidders who may be affected are advised to comply with
SBB02-2013, Amendments to the ITPB, No. 10, with respect to the
compliance requirements for professional advisors. Thus, Bidder, is
advised, so that there will be no conflict of interest, to make a prior
written disclosure to the affected Bidders, DOTC, and the PPPC, and
submit a Conflict Management Plan. A written consent or clearance
must be likewise secured from DOTC.
Based on the relevant rule, there must be direct involvement or
participation in the deliberations and decision-making as to the Bid
Process of two or more bidders and that mere partnership or
common directorship, or direct involvement in one bidder is not
enough.
The rule under Section 5.6(c), as previously explained under SBB No.
06-2013 (Query No. 4), is that the existence of common partners,
directors or officers between two Bidders is not of itself ground for a
finding of Conflict of Interest. In SBB No. 07-2013 (Query No. 36), the
PBAC reiterated that "[t]he position in the ITPB is reiterated.
However, please note that Section V-04(d) shall only apply if the
common director is directly involved in the bidding process for
another Prospective Bidder. The PBAC provided guidance as to what
would constitute direct involvement in our response to Query No. 4
in SBB No. 06-ANNEX A." There must be (1) common partner,
director, officer, or employee and (2) direct involvement by such
partner, director, officer, or employee, which consists of actual
participation in the deliberations and decision-making for the Bidding
Process of both Bidders affected, that would give the director
knowledge or information regarding the bid of such Bidder.
The PBAC adopted and approved the Conflict of Interest provision in
the ITPB(V04-d) and later in the ITB (5.6c) pursuant to its authority
and function under the BOT Law IRR, Section 3.2, which states that
the PBAC shall be responsible for all aspects of the pre-bidding and
bidding process, including among others, the interpretation of the
rules regarding the bidding. In adopting the ITPB and ITB provisions
on conflict of interest, the PBAC was aware that in its implementation
it would require direct involvement or actual participation in the
deliberations and decision-making process as to the Bid for both
affected bidders, for the following reasons.
• The clear expression of this intention in the use of the adverb
"also," indicating similarity and further action of the same nature, in
the qualifying phrase "is also directly involved," meaning that in
requiring such action on the part of one bidder, the same action
should have been taken in behalf of or in relation to another bidder.
• The PBAC also noted that this meaning has been carried in the
language of the provision as used in several other PPP projects
implemented prior to the Project and from which reference
documents the provision was drawn. Significant in this regard is SBB
No. 3, Response No. 4 to Metro Pacific Tollways Corporation (see
attached), issued in September 2012 for . the NAIA Expressway
Project, where it is clear that for conflict of interest to arise there has
to be actual participation for or in both bidders involved. The
meaning of the provision as explained in the SBB No. 3 has been
retained and carried in its use in the Project's ITB and ITPB. A copy of
SBB No. 3 issued in September 2012 for the NAIA Expressway Project
is attached hereto as Annex "BB."
That this is the proper interpretation is supported by the PBAC's
application of the same principle in the treatment of professional
advisers. The ITPB and ITB in stating that "the same conflict of
interest arises in case of professional advisors" has been
implemented by the PBAC by requiring the disclosure and clearance
where the professional adviser is under "the same conflict of
interest," meaning they are involved in that capacity for two or more
bidders. A written consent, clearance and compliance with conflict
management plan was required in the case of a professional adviser
who was understood to have taken such a role for two bidders in the
Project. Otherwise, if at least two bidders are not involved, the PBAC
would not have required a conflict management plan for the simple
reason that a conflict of interest, in that case, would not exist.
In relation to the history of the conflict of interest provision, the PBAC
also discussed that, due to the numerous interlocking directors
prevalent among the Philippine conglomerates, an interpretation not
requiring direct participation in both companies may possibly lead to
the disqualification of a large number of bidders. The result would be
extremely detrimental for the government, and surely this cannot be
the purpose of the provision.
The purpose of specifying Section 5.6(c) as a form of Conflict of
Interest is to prevent collusion among the bidders that may arise
from the specific conflict of interest scenarios (as differentiated from
Collusion as defined under the ITPB and ITB), which may prejudice or
defeat competition in the Bidding Process. Particularly, Section 5.6(c)
seeks to prevent a situation in which the common partner, director,
or officer of two (or more) Bidders will have information and
involvement in the preparation of the bids of both Bidders. By actual
participation, the common partner, director, or officer can influence
the bids of both bidders, which will not be achieved if a common
director does not have direct involvement in both bids.
It is, therefore erroneous, to conclude that the PBAC has taken a
different view solely on the basis of the response given under SBB No.
11-2013, Query No. 5. The PBAC responded only to the query with
regard to professional advisers without taking action on the rest
considering the lack of concrete factual scenario to support the
query, apart from the fact that it is not necessary to adopt the
proposed revision by the bidder under Query No. 5. The provision as
it appears in the ITPB and ITB sufficiently conveys the meaning that
for Conflict of Interest to arise under Section 5.6(c) of the ITB there
must be direct involvement or participation in the deliberations and
decision-making as to the Bid Process of two or more bidders. Mere
partnership or common directorship, or direct involvement in only
one bidder is not enough. It is worth recalling Section 6.1 of the BOT
Law IRR, which states that the implementing agency concerned shall
not assume any responsibility regarding erroneous interpretations or
conclusions by the prospective bidder out of data furnished or
indicated in the bidding documents.
Applying the foregoing interpretation, therefore, the sworn
certifications submitted by GMR Infrastructure & Megawide
Consortium set out the required certification on facts which indicate
compliance with the rules on Conflict of Interest.
Upon further consideration of this issue, the PBAC noted that GMR
Infrastructure & Megawide Consortium, in its comment on Filinvest-
CA Consortium's letters dated 2 and 3 January, confirmed that Mr.
Tansri Bashir Ahmad bin Abdul Majid ("Mr. Tansri Bashir Ahmad") is
the Managing Director of MAHB, but not a member of the board of
directors of GMR. While Mr. Tansri Bashir Ahmad sits on the board of
DIAL, GHIAL, and GMR-Male, as well as ISGIA, GMR Infrastructure &
Megawide Consortium, in its letter dated 6 January 2014, explained
that "[a]side from using the Hyderabad and Delhi airports for meeting
the technical requirements for the bid, DIAL, GHIAL, [GMR-Male] or
ISGIA themselves were never involved in the bidding process and
anything remotely connected with the bid was never discussed in the
boards of these companies."
It is also worth noting that at the time the GMR Infrastructure &
Megawide Consortium submitted its Qualification Documents on 22
April 2013, when it indicated that it is fulfilling the Qualification
Requirements through Affiliates of GMR, namely DIAL and GHIAL,
First Philippine Airport Consortium had as its members First
Philippine Holdings Corporation and Infratil (of New Zealand). The
First Philippine Airports Consortium requested the change in its
consortium membership, with the replacement of Infratil by MAHB
was approved only in September 2013, following the evaluation of
the pre-qualification documents submitted by MAHB. In their
respective Bid Letters (Annex BL-1), each of the GMR Infrastructure
& Megawide Consortium and First Philippine Airport Consortium
declared under oath the absence of Conflict of Interest. The PBAC
further noted that the respective boards of DIAL and GHIAL
authorized their respective Chief Financial Officers ("CFO") to sign
and execute relevant documents on their behalf from a board
meeting back in 2011 and 2012, way before the bid for the MCIA was
published. The same CFOs signed on behalf of each of their boards
for the use of their O&M experience as an affiliate of GMR.
The PBAC, in its meeting on 6 January 2013, resolved to require GMR
Infrastructure & Megawide to submit within three (3) days a
certification affirming under oath the absence of conflict of interest,
specifically that neither MAHB nor Mr. Tansri Bashir Ahmad was
directly involved in any capacity related to the Bidding Process for the
Project for both GMR-Megawide Consortium and the Consortium of
First Philippine Holdings Corporation and MAHB at the same time, or
any of their respective Consortium members, or any of their
respective Affiliates, through actual participation in the deliberations
and decision-making for the Bidding Process of both GMR-Megawide
Consortium and First Philippine Airports Consortium that would give
MAHB or Mr. Tansri Bashir Ahmad knowledge I information regarding
the bid of both GMR Infrastructure & Megawide Consortium and First
Philippine Airports Consortium, within a period of two (2) years prior
to the publication of the Invitation to Pre-Qualify and Bid. Through its
letter dated 8 January 2013, GMR Infrastructure & Megawide
Consortium submitted the requested certification.36
On the basis of the foregoing, the PBAC resolved to recommend to
public respondents to designate GMR-Megawide Consortium as the
Winning Bidder for the MCIA Project, and to issue the corresponding
Notice of Award.
It is well-settled in our jurisprudence that the government is granted
broad discretion in choosing who among the bidders can offer the
most advantageous terms and courts will not interfere therewith or
direct the committee on bids to do a particular act or to enjoin such
act within its prerogatives, except when in the exercise of its
authority, it gravely abuses or exceeds its jurisdiction,37 or otherwise
commits injustice, unfairness, arbitrariness or fraudulent acts.38 We
have recognized that the exercise of that discretion is a policy
decision that necessitates prior inquiry, investigation, comparison,
evaluation, and deliberation. This task can best be discharged by the
concerned government agencies, not by the courts.39
The Court thus expounded at length in Bureau Veritas v. Office of the
President40 :
xx x It must be stressed, as held in the case of A.C. Esguerra & Sons v.
Aytona, et al., (L-18751, 28 April 1962, 4 SCRA 1245), that in an
"invitation to bid, there is a condition imposed upon the bidders to
the effect that the bidding shall be subject to the right of the
government to reject any and all bids subject to its discretion. In the
case at bar, the government has made its choice and unless an
unfairness or injustice is shown, the losing bidders have no cause to
complain nor right to dispute that choice. This is a well-settled
doctrine in this jurisdiction and elsewhere."
The discretion to accept or reject a bid and award contracts is vested
in the Government agencies entrusted with that function. The
discretion given to the authorities on this matter is of such wide
latitude that the Courts will not interfere therewith, unless it is
apparent that it is used as a shield to a fraudulent award (Jalandoni
v. NARRA, 108 Phil. 486 (1960]). x x x The choice of who among the
bidders is best qualified to perform this task should be left to the
sound discretion of the proper Government authorities in the
executive branch since they are in a better position than the Courts
to make the determination owing to the experience and knowledge
that they have acquired by virtue of their functions. The exercise of
this discretion is a policy decision that necessitates prior inquiry,
investigation, comparison, evaluation, and deliberation. This task can
best be discharged by the Government agencies concerned, not by
the Courts. The role of the Courts is to ascertain whether a branch or
instrumentality of the Government has transgressed its
constitutional boundaries. But the Courts will not interfere with
executive or legislative discretion exercised within those boundaries.
Otherwise, it strays into the realm of policy decision-making.
It is only upon a clear showing of grave abuse of discretion that the
Courts will set aside the award of a contract made by a government
entity.1avvphi1 Grave abuse of discretion implies a capricious,
arbitrary and whimsical exercise of power (Filinvest Credit Corp. v.
Intermediate Appellate Court, No. 65935, 30 September 1988, 166
SCRA 155). The abuse of discretion must be so patent and gross as to
amount to an evasion of positive duty or to a virtual refusal to
perform a duty enjoined by law, as to act at all in contemplation of
law, where the power is exercised in an arbitrary and despotic
manner by reason of passion or hostility (Litton Mills, Inc. v. Galleon
Trader, Inc., et al., L-40867, 26 July 1988, 163 SCRA 489).41 (Emphasis
supplied)
Under the ITPB, the PBAC reserves the right to waive any minor
defects in the Qualification Documents, and accept the offer it deems
most advantageous to the government.42 Verily, a reservation of the
government of its right to reject any bid, generally vests in the
authorities a wide discretion as to who is the best and most
advantageous bidder. The exercise of such discretion involves
inquiry, investigation, comparison, deliberation and decision, which
are quasi-judicial functions, and when honestly exercised, may not be
reviewed by the court.43
We find no patent error or arbitrariness in the DOTC's decision to
award the contract to private respondents after the PBAC had
carefully verified and evaluated FDC's allegations regarding GMR's
expulsion from the Male International Airport by the Maldives
Government, DIAL's financing and operation of the Delhi Airport,
GMR's poor financial health and violation of the Conflict of Interest
Rule.
On GMR' s supposed fiasco from the cancellation of the concession
agreement of its subsidiary, GMR Male International Airport Private
Ltd. (GMIAL), with the Maldives Government in 2010, more recent
online news reports showed that GMIAL had won the arbitration case
and is seeking compensation from the wrongful termination of its
contract. Two of such published articles/reports reads:
GMR wins maldives airport case, seeks compensation
Anirban Chowdhury, ET Bureau Jun 20, 2014, 04.26AM IST
MUMBAI: GMR Infra on Thursday said it has won a more than 18-
month long legal battle with the Maldives government which started
after the government cancelled the company's contract to develop
and operate the country's main airport.
According to GMR's filing on the National Stock Exchange, a Maldives'
tribunal has judged the government's rejection of the contract
"wrongful".
The tribunal has directed Maldives and the state-owned Maldives
Airports Company (MACL) to pay $4 million legal damages to GMR
within 42 days.
GMR has in addition, demanded a compensation of $1.4 billion for
losses incurred in the last one year on its bid amount and investments
in developing the airport.
Hassan Areef, a spokesman for the MACL didn't immediately respond
to emailed queries.
The ruling and possible compensation will bring much-needed relief
for GMR whose international airport projects have been facing
trouble.
After winning its latest project the Phillipines Mactan-Cebu
International airport last year, the company had faced trouble when
a rival bidder raised issues of conflict of interest. GMR, however,
subsequently bagged the project.
Last December, the company sold its 40% stake in its second Turkey's
Istanbul Sabiha Gokcen International Airport for 220 million. The
company had invested 90 million (.'737 crore) in the airport but lost.'
123 crore on it in 2012-13.
On July 28, 2010, a joint venture between GMR Infra (77%) and
Malaysia Airports (Labuan) Private Limited (23%) bagged a
development and operations contract for Ibrahim Nasir International
Airport a brownfield airport at Male. The venture had bid $511
million.
The new terminal development project was on track for an early 2014
commercial opening date before it had to be halted due to a 'Stop-
Work' order by the Maldives aviation ministry in August, 2012,
according to GMR's latest annual report.44
GMR's Maldives airport concession pact was not void: Singapore-
based tribunal
The tribunal has said that Maldives government and MACL should
pay GMR $4 million as compensation within 42 days.
BY ANURADHA VERMA
GMR Infrastructure Limited's subsidiary GMR Male International
Airport Ltd (GMIAL), whose contract for modernisation of Male
international airport was unilaterally terminated by the Maldives
government in 2012, has got relief as an international tribunal has
declared its concession agreement for Maldives airport as valid.
In a filing to the stock exchanges, GMR Infrastructure said that the
Singapore-based Rt Hon Hoffman's Tribunal declared that the
concession agreement "was not void for any mistake of law or
discharged by frustration".
"Government of Maldives and Maldives Airport Co. Ltd (MACL) are
jointly and severally liable in damages to GMIAL for loss caused by
wrongful repudiation of the agreement as per the concession
agreement," GMR Infrastructure said.
After detailed proceedings lasting more than 18 months, the tribunal
has said that Maldives government and MACL should pay GMR $4
million of compensation within 42 days.
GMIAL had signed a concession agreement with the government of
Maldives and MACL for the $500 million modernisation and
operation of Ibrahim Nasir International Airport in 2010.
However, the Maldives government terminated the contract and
subsequently started off arbitration proceedings on November 29,
2012, seeking a declaration that the concession agreement was void
ab initio. GMIAL had disputed this termination.
Shares of the GMR Infrastructure were trading at Rs 33.15, up 0.91
per cent on the BSE from their previous close, in a flat Mumbai
market on Thursday. GMR Infrastructure runs airports in Hyderabad
and New Delhi. (Edited by Joby Puthuparampil Johnson)45
While the foregoing information was not yet available during the
post-qualification stage, we find no unfairness or arbitrariness on the
part of public respondents when they relied on the opinion of the IFC
PPP Services for Southeast Asia that the Male project "was conducted
in an open and transparent manner and in accordance with
international best practice," citing the June 2013 report of the Anti-
Corruption Commission of the Maldives which concluded that "there
was no corruption involved in the award and concession of the Male
airport to GMR-MAHB." As the lead advisor for the project, IFC has in
fact, included the Male International Airport as among the successful
PPPs in various infrastructure sectors.46 Public respondents thus
committed no grave abuse of discretion in determining that GMR has
complied with the technical qualifications insofar as the absence of
Unsatisfactory Performance Record is concerned.
As to the financial incapacity of private respondents, this, too, has
been sufficiently addressed by PBAC when it further evaluated the
financial proposal of MCC prior to the execution of the Final
Concession Agreement. And contrary to the claims of petitioner
Osmeña III, representatives from GMR have satisfactorily answered
the issue raised on their financial capability for the MCIA Project
during the Senate hearing held on March 25, 2014. What petitioner
Osmeña III chiefly assailed was DOTC's due diligence which to him,
fell short because they did not "dig in" and made a more in-depth
investigation into GMR' s background, specifically on the negative
findings of India's Comptroller and General Auditor. Herein
reproduced are relevant portions of the transcript taken during said
hearing:
THE ACTING CHAIRMAN (SEN. OSMEÑA). All right. Now, let's go to
GMR so that they'll have a chance to explain.
You wanted to react to a certain point we raised earlier. You're Mr.
Kapur?
MR. KAPUR. Yes, sir.
THE ACTING CHAIRMAN (SEN. OSMEÑA). Yes. Yes, please.
MR. KAPUR. I think there have been three points which were raised.
One was about the financial.
And just to react to that point, as far as GMR is concerned, as I had
mentioned in my last hearing also, the group is absolutely financially
sound. It's rated BBB investment grade by the rating agencies. It has
not departed to any lender. It has got letters of good standing from
Asian Development Bank and Standard Chartered Bank which have
been submitted at the time of our submission. That was primarily
about the GMR Group. And, in fact, last time, I had also made a very
detailed submission about its financials, its operating profits and its
cash profits and the group is very much profitable. It has the ability
to meet the finances required to complete this project.
Having said that, the prime criteria of financial capability was that of
Megawide because they were the 60 percent partner as far as this
project is concerned.
xxxx
THE ACTING CHAIRMAN (SEN. OSMEÑA).
xxxx
Your net losses increased -- surged to 10.7 billion rupees during the
nine-month period ending December 31st 2013, is that correct?
xxxx
MR. KAPUR. . .. Just give me a moment.
Our GMR's consolidated net loss for the 9-month period ending
December of 2013 was about 4 billion Indian rupees.
THE ACTING CHAIRMAN (SEN. OSMEÑA). That's your net loss.
MR. KAPUR. Net loss. This is the net loss.
THE ACTING CHAIRMAN (SEN. OSMEÑA). Okay. And your EBITDA
increased to 18 billion-
MR. KAPUR. Yeah. It is about 7 billion profit. There's a positive of 7
billion Indian rupees.
THE ACTING CHAIRMAN (SEN. OSMEÑA). No. I'm giving you more. I'm
giving you 18 billion in EBITDA. That's Earnings Before Income Tax,
Depreciation and Amortization.
MR. KAPUR. Ah, okay. That is 17 billion. Nine months is 17 billion-It's
about 18.8 billion.
THE ACTING CHAIRMAN (SEN. OSMEÑA). Eighteen point eight billion.
And your interest expenses jumped to 20.5 billion in that same
period.
MR. KAPUR. That's right, that's right.
THE ACTING CHAIRMAN (SEN. OSMEÑA). So, therefore, you don't
even have-generate enough cash, operating profit to cover your
interest expense?
It's just a simple question. Twenty billion is more than 18 billion,
right?
MR. KAPUR. Your Honor, I think one has to understand this is a
consolidated balance sheet.
THE ACTING CHAIRMAN (SEN. OSMEÑA). I'm just asking. I know it's a
consolidated balance sheet, I know it's a mother company.
MR. KAPUR. So, I think what is really the element is that the GMR has
the ability to implement this project whether it is credit rating
because everybody has their own discretion to analyze what the
profitability is and come to their own subjective judgment. But the
subjective judgment has to be based upon a credible third party. And
the credible third party in this case are the rating agencies who
continuously rate any listed entity. And if found giving that
information in public domain, other purpose of consumption of
people who are going to deal with that entity. And the rating of GMR
is something which is the most important and should be relied upon.
Because if any point of time, GMR is potentially and financially
distressed, it would impact the rating. And automatically, the rating
agencies are going to come back and change the rating, and that has
not happened. The rating agencies have maintained consistently the
investment credit rating of GMR Group. And I would just like to
reiterate that the GMR Group is not in financial distress. It is robust,
it has got the ability to meet its long-term debt as well as the short-
term debt.
THE ACTING CHAIRMAN (SEN. OSMEÑA). By borrowing some more.
MR. KAPUR. I think, sir, that is the-
THE ACTING CHAIRMAN (SEN. OSMEÑA). I'm not saying you're going
belly up. What I am saying is that there are always warnings that
those of us who understand the-how to read financial statements can
always come to preliminary conclusions. We do ratios, we do
analysis. And right here, this is very clear that you're spending more
in interest than what you are earning. So, if things were to stand still
today, you wouldn't be able to pay 2 billion in interest, 2 billion
rupees interest.
That's all I'm saying. I'm not saying you're not going to pay it because
you can always borrow some more tomorrow. But this is a situation
that's been obtaining for some time. This is not just 2013. This
happened in 2012, this happened in 2011. So, you've had operating
losses for three years running.
MR. KAPUR. The EBITDA is before other income also. If you actually
see the financial statement, there is another income also which is
below the line after EBITDA. And that is also used to meet the interest
and the payment liabilities.
THE ACTING CHAIRMAN (SEN. OSMEÑA). I understand what's below
the line. Thank you for that. Anyway-
MR. KAPUR. And sir, I think can I also respond on the CAG report
which you raised?
THE ACTING CHAIRMAN (SEN. OSMEÑA). On the ... ?
MR. KAPUR. The report of the Comptroller and Auditor General-
Indian government audited.
THE ACTING CHAIRMAN (SEN. OSMEÑA). I think you responded to
that already in the previous hearing.
MR. KAPUR. We have not responded. Last time we did not respond.
It was not an issue raised last time.
THE ACTING CHAIRMAN (SEN. OSMEÑA). All right. Please respond to
it.
MR. KAPUR. Let me explain the process of -
THE ACTING CHAIRMAN (SEN. OSMEÑA). You know, the whole point
I'm trying to make is that there's always a response to any charge
that's made. There are two sides in a question: There is the
prosecutor; there is the defense. You can always come up with a
defense. It will always sound very rational and very logical. But what
I am questioning is that why the DOTC did not exercise the due
diligence to pick up the Comptroller and Auditor General's Report
with regard to the performance of GMR. That's all I am saying.
Whether it's valid or not, whether you will dispute it or not, we
expected you to dispute that, we expected you to have answers, and
we have read your answers. But what I am saying is why didn't you
know about it? Why didn't you take the effort to do more in-depth
due diligence on whoever bidders came before you in order to
protect the interest of the Filipino people. That's what I am saying.
So, whether you can answer it or not is really beside the point. It's
why did they not pick it up? And you can answer that, you can answer
me why DOTC didn't pick it up?
MR. KAPUR. No, sir.
THE ACTING CHAIRMAN (SEN. OSMEÑA). So, I think you'll have to
hold your comments first, Mr. Kapur, because we know what you're
going to say, and we are not saying that they're not valid answers.
My concern is why didn't they pick it up.
MR. KAPUR. Can I respond to that?
THE ACTING CHAIRMAN (SEN. OSMEÑA). I don't think you can answer
that question why they didn't pick it up. That's the DOTC's question.
MR. KAPUR. No, sir. I just wanted to say something which is relevant
for that purpose. He had submitted a letter which is dated 19
December from the government of India, Ministry of Civil Aviation to
the DOTC and PBAC, which actually is that DIAL bas been operating
the airport from May 2006 satisfactorily as per the provisions of the
UNDA, executed between DIAL and airport authority. Further, we
have also been operating the Hyderabad Airport, and the airport also
has been operating satisfactorily.
THE ACTING CHAIRMAN (SEN. OSMEÑA). Yes. That's a good side. Did
you disclose it? Did you disclose the CAG findings to DOTC?
MR. KAPUR. That is for the letter of good standing from the
government of India.
THE ACTING CHAIRMAN (SEN. OSMEÑA). And you disclosed that we
were charged by the Comptroller and Auditor General of India with
this, and this is our response. Did you disclose that you were charged?
MR. KAPUR. Sir, let me make a correction here, sir, may I request?
THE ACTING CHAIRMAN (SEN. OSMEÑA). No. Just answer the
question. Yes or no. Did you disclose it?
MR. KAPUR. We were not charged by the CAG.
THE ACTING CHAIRMAN (SEN. OSMEÑA). Did you disclose the
existence of the CAG report?
MR. KAPUR. No, we were not required to disclose.
THE ACTING CHAIRMAN (SEN. OSMEÑA). You're not required.
MR. KAPUR. The charge is not on us.47 (Emphasis supplied)
The issues raised against DIAL, as contained in the CAG's report had
been addressed and resolved by the PBAC. In the same vein, GMR' s
alleged violation of the conflict of interest rule was found to be non-
existent. Contrary to petitioners' asseveration, the interpretation
made by PBAC on this bidding rule was reasonable, fair and practical.
Under the BOT Law IRR, the PBAC shall be responsible for all aspects
of the bidding process, including the interpretation of the rules
regarding the bidding, the conduct of bidding, evaluation of bids,
resolution of disputes between bidders, and recommendation for the
acceptance of the bid award and/or for the award of the project.48
Petitioner Osmefia contends that the DOTC may not apply its own
bidding rules in a manner that puts bidders on unequal footing. He
emphasizes that the grounds raised to disqualify private respondents
are not minor defects that may be waived by the PBAC in order to
qualify a disqualified bidder. He points out that the arbitrariness of
PBAC is apparent because despite its knowledge of grounds to
disqualify private respondents, i.e., the existence of a violation of the
rule on conflict of interest and a showing of private respondents'
poor financial health and track record, the resulting decision
nevertheless declared them as qualified bidders.49
The contention has no merit.
As earlier stated, PBAC's interpretation of the Conflict of Interest
provision requiring direct involvement or participation in the
deliberations and decision-making related to the bidding for the
MCIA Project was fair, reasonable and practical. The issues regarding
GMR' s Male airport case and MCC's financial capability have been
fully ventilated during the post-qualification stage. Both private
respondents and the second highest bidder, FDC, argued their
respective positions which were duly considered, including a detailed
evaluation of their technical and financial qualification documents.
That PBAC's own inquiry did not yield any concrete evidence of
GMR's unsatisfactory performance, as defined in the ITPB, and MCC's
poor financial health does not necessarily indicate preference for one
bidder over the others, especially as the bidding in this case was
conducted with transparency.
Increased Terminal Fees Valid and Legal
On the legality of the increased terminal fees imposed by GMCAC,
this is based on the right granted under the Concession Agreement
to collect such fees. For this kind of BOT projects, the law expressly
provides that the project proponent operates the facility over a fixed
term during which it is allowed to charge facility users appropriate
tolls, fees, rentals and charges not exceeding those proposed in its
bid or as negotiated and incorporated in the contract to enable the
project proponent to recover its investment and operating and
maintenance expenses in the project.50
At any rate, the Concession Agreement provided for a formula and
procedure to be applied should there be an increase in Passenger
Service Charge, Aircraft Parking Fees and Tacking Fees, thus:
24.2.c Unless otherwise provided by any Relevant Rules and
Procedure promulgated by MCIAA or by any Government Authority,
the following procedure shall apply for every increase in the
Passenger Service Charge, aircraft Parking Fees, and Tacking Fees,
after the expiration of the first (1st) Contract Year:
24.2.c (1) The Concessionaire shall file with the MCIAA an application
for such increase no later than six (6) months prior to the date that
the relevant increase in the Passenger Service Charge, Aircraft
Parking Fees, and Tacking Fees shall take effect.
24.2.c (2) The Concessionaire shall publish the application in a
newspaper of general circulation at least two (2) weeks before the
first hearing on the application.
24.2.c (3) MCIAA shall conduct a public hearing on the said
application in accordance with any rule of procedure that it may
promulgate.
24.2.c (4) The Concessionaire shall comply with all other
requirements of Relevant Rules and Procedures that may be
promulgated by MCIAA or any Government Authority for the
increase of the Passenger Service Charge, Aircraft Parking Fees, and
Tacking Fees.
24.2.c (5) The Grantors and the Concessionaire shall conduct the
procedure for implementing the increase in Passenger Service
Charge, Aircraft Parking Fees, and Tacking Fees in such a manner as
to ensure that all Relevant Consents are secured promptly to enable
the Concessionaire to implement a timely increase in Passenger
Service Charge, Aircraft Parking Fees, and Tacking Fees in accordance
with the parametric formula and at such times as contemplated in
Annex 21-A (Parametric Formula for Passenger Service Charge) or
Annex 21-B (Parametric Formula for Aircraft Parking Fee and Tacking
Fee), as the case may be.51
Petitioners Not Entitled to Preliminary Injunction
For the writ of injunction to issue, the existence of a clear and positive
right especially calling for judicial protection must be shown;
injunction is not to protect contingent or future rights; nor is it a
remedy to enforce an abstract right. An injunction will not issue to
protect a right not in esse and which may never arise or to restrain
an act which does not give rise to cause of action. There must exist
an actual right.52
Petitioners failed to establish such actual right that needs to be
protected by injunctive relief. There being no violation of any law,
regulation or the bidding rules, nor any arbitrariness or unfairness
committed by public respondents, the presumption of regularity of
the bidding for the MCIA Project must stand.
WHEREFORE, the petition in G.R. No. 211737 is hereby DISMISSED for
lack of merit. The petition in G.R. No. 214756 is DENIED for lack of
sufficient legal and factual bases.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 225973, November 08, 2016
SATURNINO C. OCAMPO, TRINIDAD H. REPUNO, BIENVENIDO
LUMBERA, BONIFACIO P. ILAGAN, NERI JAVIER COLMENARES,
MARIA CAROLINA P. ARAULLO, M.D., SAMAHAN NG EX-DETAINEES
LABAN SA DETENSYON AT ARESTO (SELDA), REPRESENTED BY
DIONITO CABILLAS, CARMENCITA M. FLORENTINO, RODOLFO DEL
ROSARIO, FELIX C. DALISAY, AND DANILO M. DELAFUENTE,*
Petitioners, v. REAR ADMIRAL ERNESTO C. ENRIQUEZ (IN HIS
CAPACITY AS THE DEPUTY CHIEF OF STAFF FOR RESERVIST AND
RETIREE AFFAIRS, ARMED FORCES OF THE PHILIPPINES), THE GRAVE
SERVICES UNIT (PHILIPPINE ARMY), AND GENERAL RICARDO R.
VISAYA (IN HIS CAPACITY AS THE CHIEF OF STAFF, ARMED FORCES
OF THE PHILIPPINES), DEFENSE SECRETARY DELFIN LORENZANA,
AND HEIRS OF FERDINAND E. MARCOS, REPRESENTED BY HIS
SURVIVING SPOUSE IMELDA ROMUALDEZ MARCOS, Respondents.
RENE A.V. SAGUISAG, SR., RENE A.Q. SAGUISAG, JR., RENE A.C.
SAGUISAG III, Intervenors.
G.R. No. 225984
REP. EDCEL C. LAGMAN, IN HIS PERSONAL AND OFFICIAL
CAPACITIES AND AS A MEMBER OF CONGRESS AND AS THE
HONORARY CHAIRPERSON OF THE FAMILIES OF VICTIMS OF
INVOLUNTARY DISAPPEARANCE (FIND); FAMILIES OF VICTIMS OF
INVOLUNTARY DISAPPEARANCE (FIND), REPRESENTED BY ITS
CO-CHAIRPERSON, NILDA L. SEVILLA; REP. TEDDY BRAWNER
BAGUILAT, JR.; REP. TOMASITO S. VILLARIN; REP. EDGAR R. ERICE;
AND REP. EMMANUEL A. BILLONES, Petitioners, v. EXECUTIVE
SECRETARY SALVADOR C. MEDIALDEA; DEFENSE SECRETARY DELFIN
N. LORENZANA; AFP CHIEF OF STAFF LT. GEN. RICARDO R. VISAYA;
AFP DEPUTY CHIEF OF STAFF REAR ADMIRAL ERNESTO C.
ENRIQUEZ; AND HEIRS OF FERDINAND E. MARCOS, REPRESENTED
BY HIS SURVIVING SPOUSE IMELDA ROMUALDEZ MARCOS,
Respondents.
G.R. No. 226097
LORETTA ANN PARGAS-ROSALES, HILDA B. NARCISO, AIDA F.
SANTOS-MARANAN, JO-ANN Q. MAGLIPON, ZENAIDA S. MIQUE, FE
B. MANGAHAS, MA. CRISTINA P. BAWAGAN, MILA D. AGUILAR,
MINERVA G. GONZALES, MA. CRISTINA V. RODRIGUEZ, LOUIE G.
CRISMO, FRANCISCO E. RODRIGO, JR., LIWAYWAY D. ARCE, AND
ABDULMARI DE LEON IMAO, JR., Petitioners, v. EXECUTIVE
SECRETARY SALVADOR C. MEDIALDEA, DEFENSE SECRETARY DELFIN
LORENZANA, AFP DEPUTY CHIEF OF STAFF REAR ADMIRAL ERNESTO
C. ENRIQUEZ, AFP CHIEF OF STAFF LT. GEN. RICARDO R. VISAYA,
AND PHILIPPINE VETERANS AFFAIRS OFFICE (PVAO)
ADMINISTRATOR LT. GEN. ERNESTO G. CAROLINA (RET.),
Respondents.
G.R. No. 226116
HEHERSON T. ALVAREZ, JOEL C. LAMANGAN, FRANCIS X.
MANGLAPUS, EDILBERTO C. DE JESUS, BELINDA O. CUNANAN,
CECILIA GUIDOTE ALVAREZ, REX DEGRACIA LORES, SR., ARNOLD
MARIE NOEL, CARLOS MANUEL, EDMUND S. TAYAO, DANILO P.
OLIVARES, NOEL F. TRINIDAD, JESUS DELA FUENTE, REBECCA M.
QUIJANO, FR. BENIGNO BELTRAN, SVD, ROBERTO S. VERZOLA,
AUGUSTO A. LEGASTO, JR., AND JULIA KRISTINA P. LEGASTO,
Petitioners, v. EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA,
DEFENSE SECRETARY DELFIN LORENZANA, AFP CHIEF OF STAFF LT.
GEN. RICARDO R. VISAYA, AFP DEPUTY CHIEF OF STAFF REAR
ADMIRAL ERNESTO C. ENRIQUEZ, AND PHILIPPINE VETERANS
AFFAIRS OFFICE (PVAO) OF THE DND, Respondents.
G.R. No. 226117
ZAIRA PATRICIA B. BANIAGA, JOHN ARVIN BUENAAGUA, JOANNE
ROSE SACE LIM, JUAN ANTONIO RAROGAL MAGALANG, Petitioners,
v. SECRETARY OF NATIONAL DEFENSE DELFIN N. LORENZANA, AFP
CHIEF OF STAFF RICARDO R. VISAYA, ADMINISTRATOR OF THE
PHILIPPINE VETERANS AFFAIRS OFFICE ERNESTO G. CAROLINA,
Respondents.
G.R. No. 226120
ALGAMAR A. LATIPH, Petitioner, v. SECRETARY DELFIN N.
LORENZANA, SUED IN HIS CAPACITY AS SECRETARY OF NATIONAL
DEFENSE, LT. GEN. RICARDO R. VISAYA, IN HIS CAPACITY AS CHIEF
OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES AND LT. GEN.
ERNESTO G. CAROLINA (RET.), IN HIS CAPACITY AS
ADMINISTRATOR, PHILIPPINE VETERANS AFFAIRS OFFICE (PVAO),
Respondents.
G.R. No. 226294
LEILA M. DE LIMA, IN HER CAPACITY AS SENATOR OF THE REPUBLIC
AND AS TAXPAYER, Petitioner, v. HON. SALVADOR C. MEDIALDEA,
DEFENSE SECRETARY DELFIN LORENZANA, AFP CHIEF OF STAFF LT.
GEN. RICARDO R. VISAYA, UNDERSECRETARY ERNESTO G.
CAROLINA, IN HIS CAPACITY AS PHILIPPINE VETERANS AFFAIRS
OFFICE (PVAO) ADMINISTRATOR AND B/GEN. RESTITUTO L.
AGUILAR, IN HIS CAPACITY AS SHRINE CURATOR AND CHIEF
VETERANS MEMORIAL AND HISTORICAL DIVISION AND HEIRS OF
FERDINAND EDRALIN MARCOS, Respondent.
DECISION
PERALTA, J.:
In law, as much as in life, there is need to find closure. Issues that
have lingered and festered for so long and which unnecessarily divide
the people and slow the path to the future have to be interred. To
move on is not to forget the past. It is to focus on the present and the
future, leaving behind what is better left for history to ultimately
decide. The Court finds guidance from the Constitution and the
applicable laws, and in the absence of clear prohibition against the
exercise of discretion entrusted to the political branches of the
Government, the Court must not overextend its readings of what
may only be seen as providing tenuous connection to the issue before
it.
Facts
During the campaign period for the 2016 Presidential Election, then
candidate Rodrigo R. Duterte (Duterte) publicly announced that he
would allow the burial of former President Ferdinand E. Marcos
(Marcos) at the Libingan Ng Mga Bayani (LNMB). He won the May 9,
2016 election, garnering 16,601,997 votes. At noon of June 30, 2016,
he formally assumed his office at the Rizal Hall in the Malacañan
Palace.
On August 7, 2016, public respondent Secretary of National Defense
Delfin N. Lorenzana issued a Memorandum to the public respondent
Chief of Staff of the Armed Forces of the Philippines (AFP), General
Ricardo R. Visaya, regarding the interment of Marcos at the LNMB, to
wit:ChanRoblesVirtualawlibrary
Subject: Interment of the late Former President Ferdinand Marcos at
LNMB
Reference: Verbal Order of President Rodrigo Duterte on July 11,
2016.
In compliance to (sic) the verbal order of the President to implement
his election campaign promise to have the remains of the late former
President Ferdinand E. Marcos be interred at the Libingan ng mga
Bayani, kindly undertake all the necessary planning and preparations
to facilitate the coordination of all agencies concerned specially the
provisions for ceremonial and security requirements. Coordinate
closely with the Marcos family regarding the date of interment and
the transport of the late former President's remains from Ilocos
Norte to the LNMB.
The overall OPR for this activity will [be] the PVAO since the LNMB is
under its supervision and administration. PVAO shall designate the
focal person for this activity who shall be the overall overseer of the
event.
Submit your Implementing Plan to my office as soon as
possible.1chanroblesvirtuallawlibrary
On August 9, 2016, respondent AFP Rear Admiral Ernesto C. Enriquez
issued the following directives to the Philippine Army (PA)
Commanding General:ChanRoblesVirtualawlibrary
SUBJECT: Funeral Honors and Service
TO: Commanding General, Philippine Army
Headquarters, Philippine Army
Fort Bonifacio, Taguig City
Attn: Assistant Chief of Staff for RRA, G9
Pursuant to paragraph 2b, SOP Number 8, GHQ, AFP dated 14 July
1992, provide services, honors and other courtesies for the late
Former President Ferdinand E. Marcos as indicated:
chanRoblesvirtualLawlibrary [x] Vigil - Provide vigil-
[x] Bugler/Drummer
[x] Firing Party
[x] Military Host/Pallbearers
[x] Escort and Transportation
[x] Arrival/Departure Honors
His remains lie in state at Ilocos Norte
Interment will take place at the Libingan ng mga Bayani, Ft. Bonifacio,
Taguig City. Date: TBAL.
Provide all necessary military honors accorded for a President
POC: Administrator, PVAO BY COMMAND OF GENERAL VISAYA2
Dissatisfied with the foregoing issuance, the following were filed by
petitioners:
chanRoblesvirtualLawlibrary1. Petition for Certiorari and
Prohibition3 filed by Saturnino Ocampo and several others,4 in their
capacities as human rights advocates or human rights violations
victims as defined under Section 3 (c) of Republic Act (R.A.) No. 10368
(Human Rights Victims Reparation and Recognition Act of 2013).
2. Petition for Certiorari-in-Intervention5 filed by Rene A.V. Saguisag,
Sr. and his son,6 as members of the Bar and human rights lawyers,
and his grandchild.7chanrobleslaw
3. Petition for Prohibition8 filed by Representative Edcel C. Lagman,
in his personal capacity, as member of the House of Representatives
and as Honorary Chairperson of Families of Victims of Involuntary
Disappearance (FIND), a duly-registered corporation and
organization of victims and families of enforced disappearance,
mostly during the martial law regime of the former President Marcos,
and several others,9 in their official capacities as duly-elected
Congressmen of the House of Representatives of the Philippines.
4. Petition for Prohibition10 filed by Loretta Ann Pargas-Rosales,
former Chairperson of the Commission on Human Rights, and several
others,11 suing as victims of State-sanctioned human rights
violations during the martial law regime of Marcos.
5. Petition for Mandamus and Prohibition12 filed by Heherson T.
Alvarez, former Senator of the Republic of the Philippines, who
fought to oust the dictatorship of Marcos, and several others,13 as
concerned Filipino citizens and taxpayers.
6. Petition for Certiorari and Prohibition14 filed by Zaira Patricia B.
Baniaga and several others,15 as concerned Filipino citizens and
taxpayers.
7. Petition for Certiorari and Prohibition16 filed by Algamar A. Latiph,
former Chairperson of the Regional Human Rights Commission,
Autonomous Region in Muslim Mindanao, by himself and on behalf
of the Moro17 who are victims of human rights during the martial
law regime of Marcos.
8. Petition for Certiorari and Prohibition18 filed by Leila M. De Lima
as member of the Senate of the Republic of the Philippines, public
official and concerned citizen.
Issues
Procedural
1. Whether President Duterte's determination to have the remains of
Marcos interred at the LNMB poses a justiciable controversy.
2. Whether petitioners have locus standi to file the instant petitions.
3. Whether petitioners violated the doctrines of exhaustion of
administrative remedies and hierarchy of courts.
Substantive
1. Whether the respondents Secretary of National Defense and AFP
Rear Admiral committed grave abuse of discretion, amounting to lack
or excess of jurisdiction, when they issued the assailed memorandum
and directive in compliance with the verbal order of President
Duterte to implement his election campaign promise to have the
remains of Marcos interred at the LNMB.
2. Whether the Issuance and implementation of the assailed
memorandum and directive violate the Constitution, domestic and
international laws, particularly:
chanRoblesvirtualLawlibrary(a) Sections 2, 11, 13, 23, 26, 27 and 28
of Article II, Section 1 of Article III, Section 17 of Article VII, Section 1
of Article XI, Section 3(2) of Article XIV, and Section 26 of Article XVIII
of the 1987 Constitution;
(b) R.A. No. 289;
(c) R.A. No. 10368;
(d) AFP Regulation G 161-375 dated September 11, 2000;
(e) The International Covenant on Civil and Political Rights;
(f) The "Basic Principles and Guidelines on the Right to a Remedy and
Reparation for Victims of Gross Violations of International Human
Rights Law and Serious Violations of International Humanitarian Law"
of the United Nations (U.N.) General Assembly; and cralawlawlibrary
(g) The "Updated Set of Principles for Protection and Promotion of
Human Rights through Action to Combat Impunity" of the U.N.
Economic and Social Council;
3. Whether historical facts, laws enacted to recover ill-gotten wealth
from the Marcoses and their cronies, and the pronouncements of the
Court on the Marcos regime have nullified his entitlement as a soldier
and former President to interment at the LNMB.
4. Whether the Marcos family is deemed to have waived the burial of
the remains of former President Marcos at the LNMB after they
entered into an agreement with the Government of the Republic of
the Philippines as to the conditions and procedures by which his
remains shall be brought back to and interred in the Philippines.
Opinion
The petitions must be dismissed.

Procedural Grounds
Justiciable controversy
It is well settled that no question involving the constitutionality or
validity of a law or governmental act may be heard and decided by
the Court unless the following requisites for judicial inquiry are
present: (a) there must be an actual case or controversy calling for
the exercise of judicial power; (b) the person challenging the act must
have the standing to question the validity of the subject act or
issuance; (c) the question of constitutionality must be raised at the
earliest opportunity; and (d) the issue of constitutionality must be the
very lis mota of the case.19 In this case, the absence of the first two
requisites, which are the most essential, renders the discussion of the
last two superfluous.20chanrobleslaw
An "actual case or controversy" is one which involves a conflict of
legal rights, an assertion of opposite legal claims, susceptible of
judicial resolution as distinguished from a hypothetical or abstract
difference or dispute.21 There must be a contrariety of legal rights
that can be interpreted and enforced on the basis of existing law and
jurisprudence.22 Related to the requisite of an actual case or
controversy is the requisite of "ripeness," which means that
something had then been accomplished or performed by either
branch before a court may come into the picture, and the petitioner
must allege the existence of an immediate or threatened injury to
itself as a result of the challenged action.23 Moreover, the limitation
on the power of judicial review to actual cases and controversies
carries the assurance that the courts will not intrude into areas
committed to the other branches of government.24 Those areas
pertain to 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.25cralawred As they are
concerned with questions of policy and issues dependent upon the
wisdom, not legality of a particular measure,26 political questions
used to be beyond the ambit of judicial review. However, the scope
of the political question doctrine has been limited by Section 1 of
Article VIII of the 1987 Constitution when it vested in the judiciary the
power to determine whether or not there has been grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.
The Court agrees with the OSG that President Duterte's decision to
have the remains of Marcos interred at the LNMB involves a political
question that is not a justiciable controversy. In the exercise of his
powers under the Constitution and the Executive Order (E.O.) No.
292 (otherwise known as the Administrative Code of 1987) to allow
the interment of Marcos at the LNMB, which is a land of the public
domain devoted for national military cemetery and military shrine
purposes, President Duterte decided a question of policy based on
his wisdom that it shall promote national healing and forgiveness.
There being no taint of grave abuse in the exercise of such discretion,
as discussed below, President Duterte's decision on that political
question is outside the ambit of judicial review.
Locus standi
Defined as a right of appearance in a court of justice on a given
question,27locus standi requires that 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.28 Unless a person has sustained or is in imminent danger
of sustaining an injury as a result of an act complained of, such proper
party has no standing.29 Petitioners, who filed their respective
petitions for certiorari, prohibition and mandamus, in their capacities
as citizens, human rights violations victims, legislators, members of
the Bar and taxpayers, have no legal standing to file such petitions
because they failed to show that they have suffered or will suffer
direct and personal injury as a result of the interment of Marcos at
the LNMB.
Taxpayers have been 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 public funds are wasted through the
enforcement of an invalid or unconstitutional law.30 In this case,
what is essentially being assailed is the wisdom behind the decision
of the President to proceed with the interment of Marcos at the
LNMB. As taxpayers, petitioners merely claim illegal disbursement of
public funds, without showing that Marcos is disqualified to be
interred at the LNMB by either express or implied provision of the
Constitution, the laws or jurisprudence.
Petitioners Saguisag, et al.,31 as members of the Bar, are required to
allege any direct or potential injury which the Integrated Bar of the
Philippines, as an institution, or its members may suffer as a
consequence of the act complained of.32 Suffice it to state that the
averments in their petition-in-intervention failed to disclose such
injury, and that their interest in this case is too general and shared by
other groups, such that their duty to uphold the rule of law, without
more, is inadequate to clothe them with requisite legal
standing.33chanrobleslaw
As concerned citizens, petitioners are also required to substantiate
that the issues raised are of transcendental importance, of
overreaching significance to society, or of paramount public
interest.34 In cases involving such issues, the imminence and clarity
of the threat to fundamental constitutional rights outweigh the
necessity for prudence.35 In Marcos v. Manglapus,36 the majority
opinion observed that the subject controversy was of grave national
importance, and that the Court's decision would have a profound
effect on the political, economic, and other aspects of national life.
The ponencia explained that the case was in a class by itself, unique
and could not create precedent because it involved a dictator forced
out of office and into exile after causing twenty years of political,
economic and social havoc in the country and who, within the short
space of three years (from 1986), sought to return to the Philippines
to die.
At this point in time, the interment of Marcos at a cemetery originally
established as a national military cemetery and declared a national
shrine would have no profound effect on the political, economic, and
other aspects of our national life considering that more than twenty-
seven (27) years since his death and thirty (30) years after his ouster
have already passed. Significantly, petitioners failed to demonstrate
a clear and imminent threat to their fundamental constitutional
rights.
As human rights violations victims during the Martial Law regime,
some of petitioners decry re-traumatization, historical revisionism,
and disregard of their state recognition as heroes. Petitioners'
argument is founded on the wrong premise that the LNMB is the
National Pantheon intended by law to perpetuate the memory of all
Presidents, national heroes and patriots. The history of the LNMB, as
will be discussed further, reveals its nature and purpose as a national
military cemetery and national shrine, under the administration of
the AFP.
Apart from being concerned citizens and taxpayers, petitioners
Senator De Lima, and Congressman Lagman, et al.37 come before the
Court as legislators suing to defend the Constitution and to protect
appropriated public funds from being used unlawfully. In the absence
of a clear showing of any direct injury to their person or the
institution to which they belong, their standing as members of the
Congress cannot be upheld.38 They do not specifically claim that the
official actions complained of, i.e., the memorandum of the Secretary
of National Defense and the directive of the AFP Chief of Staff
regarding the interment of Marcos at the LNMB, encroach on their
prerogatives as legislators.39chanrobleslaw
Exhaustion of Administrative Remedies
Petitioners violated the doctrines of exhaustion of administrative
remedies and hierarchy of courts. Under the doctrine of exhaustion
of administrative remedies, before a party is allowed to seek the
intervention of the court, one should have availed first of all the
means of administrative processes available.40 If resort to a remedy
within the administrative machinery can still be made by giving the
administrative officer concerned every opportunity to decide on a
matter that comes within his jurisdiction, then such remedy should
be exhausted first before the court's judicial power can be sought.41
For reasons of comity and convenience, courts of justice shy away
from a dispute until the system of administrative redress has been
completed and complied with, so as to give the administrative agency
concerned every opportunity to correct its error and dispose of the
case.42 While there are exceptions43 to the doctrine of exhaustion
of administrative remedies, petitioners failed to prove the presence
of any of those exceptions.
Contrary to their claim of lack of plain, speedy, adequate remedy in
the ordinary course of law, petitioners should be faulted for failing to
seek reconsideration of the assailed memorandum and directive
before the Secretary of National Defense. The Secretary of National
Defense should be given opportunity to correct himself, if warranted,
considering that AFP Regulations G 161-375 was issued upon his
order. Questions on the implementation and interpretation thereof
demand the exercise of sound administrative discretion, requiring
the special knowledge, experience and services of his office to
determine technical and intricate matters of fact. If petitioners would
still be dissatisfied with the decision of the Secretary, they could
elevate the matter before the Office of the President which has
control and supervision over the Department of National Defense
(DND).44chanrobleslaw
Hierarchy of Courts
In the same vein, while direct resort to the Court through petitions
for the extraordinary writs of certiorari, prohibition and mandamus
are allowed under exceptional cases,45 which are lacking in this case,
petitioners cannot simply brush aside the doctrine of hierarchy of
courts that requires such petitions to be filed first with the proper
Regional Trial Court (RTC). The RTC is not just a trier of facts, but can
also resolve questions of law in the exercise of its original and
concurrent jurisdiction over petitions for certiorari, prohibition and
mandamus, and has the power to issue restraining order and
injunction when proven necessary.
In fine, the petitions at bar should be dismissed on procedural
grounds alone. Even if We decide the case based on the merits, the
petitions should still be denied.
Substantive Grounds
There is grave abuse of discretion when an act is (1) done contrary to
the Constitution, the law or jurisprudence or (2) executed
whimsically, capriciously or arbitrarily, out of malice, ill will or
personal bias.46 None is present in this case.
I
The President's decision to bury Marcos at the LNMB is in accordance
with the Constitution, the law or jurisprudence
Petitioners argue that the burial of Marcos at the LNMB should not
be allowed because it has the effect of not just rewriting history as to
the Filipino people's act of revolting against an authoritarian ruler but
also condoning the abuses committed during the Martial Law,
thereby violating the letter and spirit of the 1987 Constitution, which
is a "post-dictatorship charter" and a "human rights constitution." For
them, the ratification of the Constitution serves as a clear
condemnation of Marcos' alleged "heroism." To support their case,
petitioners invoke Sections 2,47 11,48 13,49 23,50 26,51 2752 and
2853 of Article II, Sec. 17 of Art. VII,54 Sec. 3(2) of Art. XIV,55 Sec. 1
of Art. XI,56 and Sec. 26 of Art. XVIII57 of the Constitution.
There is no merit to the contention.
As the Office of the Solicitor General (OSG) logically reasoned out,
while the Constitution is a product of our collective history as a
people, its entirety should not be interpreted as providing guiding
principles to just about anything remotely related to the Martial Law
period such as the proposed Marcos burial at the LNMB.
Tañada v. Angara58 already ruled that the provisions in Article II of
the Constitution are not self-executing.
Thus:ChanRoblesVirtualawlibrary
By its very title, Article II of the Constitution is a "declaration of
principles and state policies." The counterpart of this article in the
1935 Constitution is called the "basic political creed of the nation" by
Dean Vicente Sinco. These principles in Article II are not intended to
be self- executing principles ready for enforcement through the
courts. They are used by the judiciary as aids or as guides in the
exercise of its power of judicial review, and by the legislature in its
enactment of laws. As held in the leading case of Kilosbayan,
Incorporated vs. Morato, the principles and state policies
enumerated in Article II x x x are not "self-executing provisions, the
disregard of which can give rise to a cause of action in the courts.
They do not embody judicially enforceable constitutional rights but
guidelines for legislation."
In the same light, we held in Basco vs. Pagcor that broad
constitutional principles need legislative enactments to implement
them x x x.
xxx
The reasons for denying a cause of action to an alleged infringement
of broad constitutional principles are sourced from basic
considerations of due process and the lack of judicial authority to
wade "into the uncharted ocean of social and economic policy
making."59chanroblesvirtuallawlibrary
In the same vein, Sec. 1 of Art. XI of the Constitution is not a self--
executing provision considering that a law should be passed by the
Congress to clearly define and effectuate the principle embodied
therein. As a matter of fact, pursuant thereto, Congress enacted R.A.
No. 6713 ("Code of Conduct and Ethical Standards for Public Officials
and Employees"), R.A. No. 6770 ("The Ombudsman Act of 1989"),
R.A. No. 7080 (An Act Defining and Penalizing the Crime of Plunder),
and Republic Act No. 9485 ("Anti--Red Tape Act of 2007"). To
complement these statutes, the Executive Branch has issued various
orders, memoranda, and instructions relative to the norms of
behavior/code of conduct/ethical standards of officials and
employees; workflow charts/public transactions; rules and policies
on gifts and benefits; whistle blowing and reporting; and client
feedback program.
Petitioners' reliance on Sec. 3(2) of Art. XIV and Sec. 26 of Art. XVIII
of the Constitution is also misplaced. Sec. 3(2) of Art. XIV refers to the
constitutional duty of educational institutions in teaching the values
of patriotism and nationalism and respect for human rights, while
Sec. 26 of Art. XVIII is a transitory provision on sequestration or freeze
orders in relation to the recovery of Marcos' ill-gotten wealth.
Clearly, with respect to these provisions, there is no direct or indirect
prohibition to Marcos' interment at the LNMB.
The second sentence of Sec. 17 of Art. VII pertaining to the duty of
the President to "ensure that the laws be faithfully executed," which
is identical to Sec. 1, Title I, Book III of the Administrative Code of
1987,60 is likewise not violated by public respondents. Being the
Chief Executive, the President represents the government as a whole
and sees to it that all laws are enforced by the officials and employees
of his or her department.61 Under the Faithful Execution Clause, the
President has the power to take "necessary and proper steps" to
carry into execution the law.62 The mandate is self-executory by
virtue of its being inherently executive in nature and is intimately
related to the other executive functions.63 It is best construed as an
imposed obligation, not a separate grant of power.64 The provision
simply underscores the rule of law and, corollarily, the cardinal
principle that the President is not above the laws but is obliged to
obey and execute them.65chanrobleslaw
Consistent with President Duterte's mandate under Sec. 17, Art. VII
of the Constitution, the burial of Marcos at the LNMB does not
contravene R.A. No. 289, R.A. No. 10368, and the international
human rights laws cited by petitioners.
A. On R.A. No. 28966chanrobleslaw
For the perpetuation of their memory and for the inspiration and
emulation of this generation and of generations still unborn, R.A. No.
289 authorized the construction of a National Pantheon as the burial
place of the mortal remains of all the Presidents of the Philippines,
national heroes and patriots.67 It also provided for the creation of a
Board on National Pantheon to implement the law.68chanrobleslaw
On May 12, 1953, President Elpidio R. Quirino approved the site of
the National Pantheon at East Avenue, Quezon City.69 On December
23, 1953, he issued Proclamation No. 431 to formally "withdraw from
sale or settlement and reserve as a site for the construction of the
National Pantheon a certain parcel of land located in Quezon City."
However, on July 5, 1954, President Magsaysay issued Proclamation
No. 42 revoking Proclamation Nos. 422 and 431, both series of 1953,
and reserving the parcels of land embraced therein for national park
purposes to be known as Quezon Memorial Park.
It is asserted that Sec. 1 of R.A. No 289 provides for the legal standard
by which a person's mortal remains may be interred at the LNMB,
and that AFP Regulations G 161-375 merely implements the law and
should not violate its spirit and intent. Petitioners claim that it is
known, both here and abroad, that Marcos' acts and deed - the gross
human rights violations, the massive corruption and plunder of
government coffers, and his military record that is fraught with
myths, factual inconsistencies, and lies - are neither worthy of
perpetuation in our memory nor serve as a source of inspiration and
emulation of the present and future generations. They maintain that
public respondents are not members of the Board on National
Pantheon, which is authorized by the law to cause the burial at the
LNMB of the deceased Presidents of the Philippines, national heroes,
and patriots.
Petitioners are mistaken. Both in their pleadings and during the oral
arguments, they miserably failed to provide legal and historical bases
as to their supposition that the LNMB and the National Pantheon are
one and the same. This is not at all unexpected because the LNMB is
distinct and separate from the burial place envisioned in R.A. No 289.
The parcel of land subject matter of President Quirino's Proclamation
No. 431, which was later on revoked by President Magsaysay's
Proclamation No. 42, is different from that covered by Marcos'
Proclamation No. 208. The National Pantheon does not exist at
present. To date, the Congress has deemed it wise not to appropriate
any funds for its construction or the creation of the Board on National
Pantheon. This is indicative of the legislative will not to pursue, at the
moment, the establishment of a singular interment place for the
mortal remains of all Presidents of the Philippines, national heroes,
and patriots. Perhaps, the Manila North Cemetery, the Manila South
Cemetery, and other equally distinguished private cemeteries
already serve the noble purpose but without cost to the limited funds
of the government.
Even if the Court treats R.A. No. 289 as relevant to the issue, still,
petitioners' allegations must fail. To apply the standard that the
LNMB is reserved only for the "decent and the brave" or "hero"
would be violative of public policy as it will put into question the
validity of the burial of each and every mortal remains resting
therein, and infringe upon the principle of separation of powers since
the allocation of plots at the LNMB is based on the grant of authority
to the President under existing laws and regulations. Also, the Court
shares the view of the OSG that the proposed interment is not
equivalent to the consecration of Marcos' mortal remains. The act in
itself does not confer upon him the status of a "hero." Despite its
name, which is actually a misnomer, the purpose of the LNMB, both
from legal and historical perspectives, has neither been to confer to
the people buried there the title of "hero" nor to require that only
those interred therein should be treated as a "hero." Lastly,
petitioners' repeated reference to a "hero's burial" and "state
honors," without showing proof as to what kind of burial or honors
that will be accorded to the remains of Marcos, is speculative until
the specifics of the interment have been finalized by public
respondents.
B. On R.A. No. 1036870chanrobleslaw
For petitioners, R.A. No. 10368 modified AFP Regulations G 161-375
by implicitly disqualifying Marcos' burial at the LNMB because the
legislature, which is a co-equal branch of the government, has
statutorily declared his tyranny as a deposed dictator and has
recognized the heroism and sacrifices of the Human Rights Violations
Victims (HRVVs)71 under his regime. They insist that the intended act
of public respondents damages and makes mockery of the
mandatory teaching of Martial Law atrocities and of the lives and
sacrifices of its victims. They contend that "reparation" under R.A.
No. 10368 is non-judicial in nature but a political action of the State
through the Legislative and Executive branches by providing
administrative relief for the compensation, recognition, and
memorialization of human rights victims.
We beg to disagree.
Certainly, R.A. No. 10368 recognizes the heroism and sacrifices of all
Filipinos who were victims of summary execution, torture, enforced
or involuntary disappearance, and other gross human rights
violations committed from September 21, 1972 to February 25, 1986.
To restore their honor and dignity, the State acknowledges its moral
and legal obligation72 to provide reparation to said victims and/or
their families for the deaths, injuries, sufferings, deprivations and
damages they experienced.
In restoring the rights and upholding the dignity of HRVVs, which is
part of the right to an effective remedy, R.A. No. 10368 entitles them
to monetary and non-monetary reparation. Any HRVV qualified
under the law73 shall receive a monetary reparation, which is tax-
free and without prejudice to the receipt of any other sum from any
other person or entity in any case involving human rights
violations.74 Anent the non-monetary reparation, the Department of
Health (DOH), the Department of Social Welfare and Development
(DSWD), the Department of Education (DepEd), the Commission on
Higher Education (CHED), the Technical Education and Skills
Development Authority (TESDA), and such other government
agencies are required to render the necessary services for the HRVVs
and/or their families, as may be determined by the Human Rights
Victims' Claims Board (Board) pursuant to the provisions of the
law.75chanrobleslaw
Additionally, R.A. No. 10368 requires the recognition of the violations
committed against the HRVVs, regardless of whether they opt to seek
reparation or not. This is manifested by enshrining their names in the
Roll of Human Rights Violations Victims (Roll) prepared by the
Board.76 The Roll may be displayed in government agencies
designated by the HRVV Memorial Commission (Commission).77
Also, a Memorial/Museum/Library shall be established and a
compendium of their sacrifices shall be prepared and may be readily
viewed and accessed in the internet.78 The Commission is created
primarily for the establishment, restoration, preservation and
conservation of the Memorial/Museum/
Library/Compendium.79chanrobleslaw
To memorialize80 the HRVVs, the Implementing Rules and
Regulations of R.A. No. 10368 further mandates that: (1) the
database prepared by the Board derived from the processing of
claims shall be turned over to the Commission for archival purposes,
and made accessible for the promotion of human rights to all
government agencies and instrumentalities in order to prevent
recurrence of similar abuses, encourage continuing reforms and
contribute to ending impunity;81 (2) the lessons learned from Martial
Law atrocities and the lives and sacrifices of HRVVs shall be included
in the basic and higher education curricula, as well as in continuing
adult learning, prioritizing those most prone to commit human rights
violations;82 and (3) the Commission shall publish only those stories
of HRVVs who have given prior informed consent.83chanrobleslaw
This Court cannot subscribe to petitioners' logic that the beneficial
provisions of R.A. No. 10368 are not exclusive as it includes the
prohibition on Marcos' burial at the LNMB. It would be undue to
extend the law beyond what it actually contemplates. With its victim-
oriented perspective, our legislators could have easily inserted a
provision specifically proscribing Marcos' interment at the LNMB as
a "reparation" for the HRVVs, but they did not. As it is, the law is silent
and should remain to be so. This Court cannot read into the law what
is simply not there. It is irregular, if not unconstitutional, for Us to
presume the legislative will by supplying material details into the law.
That would be tantamount to judicial legislation.
Considering the foregoing, the enforcement of the HRVVs' rights
under R.A. No 10368 will surely not be impaired by the interment of
Marcos at the LNMB. As opined by the OSG, the assailed act has no
causal connection and legal relation to the law. The subject
memorandum and directive of public respondents do not and cannot
interfere with the statutory powers and functions of the Board and
the Commission. More importantly, the HRVVs' entitlements to the
benefits provided for by R.A. No 10368 and other domestic laws are
not curtailed. It must be emphasized that R.A. No. 10368 does not
amend or repeal, whether express or implied, the provisions of the
Administrative Code or AFP Regulations G 161-
375:ChanRoblesVirtualawlibrary
It is a well-settled rule of statutory construction that repeals by
implication are not favored. In order to effect a repeal by implication,
the later statute must be so irreconcilably inconsistent and
repugnant with the existing law that they cannot be made to
reconcile and stand together. The clearest case possible must be
made before the inference of implied repeal may be drawn, for
inconsistency is never presumed. There must be a showing of
repugnance clear and convincing in character. The language used in
the later statute must be such as to render it irreconcilable with what
had been formerly enacted. An inconsistency that falls short of that
standard does not suffice. x x x84chanroblesvirtuallawlibrary
C. On International Human Rights Laws
Petitioners argue that the burial of Marcos at the LNMB will violate
the rights of the HRVVs to "full" and "effective" reparation, which is
provided under the International Covenant on Civil and Political
Rights (ICCPR),85 the Basic Principles and Guidelines on the Right to
a Remedy and Reparation for Victims of Gross Violations of
International Human Rights Law and Serious Violations of
International Humanitarian Law86 adopted by the U.N. General
Assembly on December 16, 2005, and the Updated Set of Principles
for the Protection and Promotion of Human Rights Through Action to
Combat Impunity87 dated February 8, 2005 by the U.N. Economic
and Social Council.
We do not think so. The ICCPR,88 as well as the U.N. principles on
reparation and to combat impunity, call for the enactment of
legislative measures, establishment of national programmes, and
provision for administrative and judicial recourse, in accordance with
the country's constitutional processes, that are necessary to give
effect to human rights embodied in treaties, covenants and other
international laws. The U.N. principles on reparation expressly
states:ChanRoblesVirtualawlibrary
Emphasizing that the Basic Principles and Guidelines contained
herein do not entail new international or domestic legal obligations
but identify mechanisms, modalities, procedures and methods for
the implementation of existing legal obligations under international
human rights law and international humanitarian law which are
complementary though different as to their norms[.][Emphasis
supplied]
The Philippines is more than compliant with its international
obligations. When the Filipinos regained their democratic institutions
after the successful People Power Revolution that culminated on
February 25, 1986, the three branches of the government have done
their fair share to respect, protect and fulfill the country's human
rights obligations, to wit:
chanRoblesvirtualLawlibraryThe 1987 Constitution contains
provisions that promote and protect human rights and social justice.
As to judicial remedies, aside from the writs of habeas corpus,
amparo,89 and habeas data,90 the Supreme Court promulgated on
March 1, 2007 Administrative Order No. 25-2007,91 which provides
rules on cases involving extra-judicial killings of political ideologists
and members of the media. The provision of the Basic Principles and
Guidelines on the prevention of the victim's re-traumatization
applies in the course of legal and administrative procedures designed
to provide justice and reparation.92chanrobleslaw
On the part of the Executive Branch, it issued a number of
administrative and executive orders. Notable of which are the
following:
A.O. No. 370 dated December 10, 1997 (Creating the Inter--Agency
Coordinating Committee on Human Rights)
E.O. No. 118 dated July 5, 1999 (Providing for the Creation of a
National Committee on the Culture of Peace)
E.O. No. 134 dated July 31, 1999 (Declaring August 12, 1999 and
Every 12th Day of August Thereafter as International Humanitarian
Law Day)
E.O. No. 404 dated January 24, 2005 (Creating the Government of the
Republic of the Philippines Monitoring Committee [GRP-MC] on
Human Rights and International Humanitarian Law)
A.O. No. 157 dated August 21, 2006 (Creating an Independent
Commission to Address Media and Activist Killings)
A.O. No. 163 dated December 8, 2006 (Strengthening and Increasing
the Membership of the Presidential Human Rights Committee, and
Expanding Further the Functions of Said
Committee)93chanrobleslaw
A.O. No. 181 dated July 3, 2007 (Directing the Cooperation and
Coordination Between the National Prosecution Service and Other
Concerned Agencies of Government for the Successful Investigation
and Prosecution of Political and Media Killings)
A.O. No. 197 dated September 25, 2007 (DND and AFP Coordination
with PHRC Sub-committee on Killings and Disappearances)
A.O. No. 211 dated November 26, 2007 (Creating a Task Force Against
Political Violence)
A.O. No. 249 dated December 10, 2008 (Further Strengthening
Government Policies, Plans, and Programs for the Effective
Promotion and Protection of Human Rights on the Occasion of the
60th Anniversary of the Universal Declaration of Human Rights)
E.O. No. 847 dated November 23, 2009 (Creating the Church-Police-
Military-Liaison Committee to Formulate and Implement a
Comprehensive Program to Establish Strong Partnership Between
the State and the Church on Matters Concerning Peace and Order
and Human Rights)
A.O. No. 35 dated November 22, 2012 (Creating the Inter--Agency
Committee on Extra-Legal Killings, Enforced Disappearances, Torture
and Other Grave Violations of the Right to Life, Liberty and Security
of Persons)
A.O. No. 1 dated October 11, 2016 (Creating the Presidential Task
Force on Violations of the Right to Life, Liberty and Security of the
Members of the Media)
Finally, the Congress passed the following laws affecting human
rights:
Republic Act No. 7438 (An Act Defining Certain Rights of Person
Arrested, Detained or Under Custodia/Investigation as well as the
Duties of the Arresting, Detaining and Investigating Officers and
Providing Penalties for Violations Thereof)
Republic Act No. 8371 (The Indigenous Peoples' Rights Act of 1997)
Republic Act No. 9201 (National Human Rights Consciousness Week
Act of 2002)
Republic Act No. 9208 (Anti-Trafficking in Persons Act of 2003)
Republic Act No. 9262 (Anti-Violence Against Women and Their
Children Act of 2004)
Republic Act No. 9344 (Juvenile Justice and Welfare Act of 2006)
Republic Act No. 9372 (Human Security Act of 2007)
Republic Act No. 9710 (The Magna Carta of Women)
Republic Act No. 9745 (Anti-Torture Act of 2009)
Republic Act No. 9851 (Philippine Act on Crimes Against International
Humanitarian Law, Genocide, and Other Crimes Against Humanity)
Republic Act No. 10121 (Philippine Disaster Risk Reduction and
Management Act of 2010)

Republic Act No. 10168 (The Terrorism Financing Prevention and
Suppression Act of 2012)
Republic Act No. 10353 (Anti-Enforced or Involuntary Disappearance
Act of 2012)
Republic Act No. 10364 (Expanded Anti-Trafficking In Persons Act of
2012)
Republic Act No. 10368 (Human Rights Victims Reparation And
Recognition Act of 2013)
Republic Act No. 10530 (The Red Cross and Other Emblems Act of
2013)
Contrary to petitioners' postulation, our nation's history will not be
instantly revised by a single resolve of President Duterte, acting
through the public respondents, to bury Marcos at the LNMB.
Whether petitioners admit it or not, the lessons of Martial Law are
already engraved, albeit in varying degrees, in the hearts and minds
of the present generation of Filipinos. As to the unborn, it must be
said that the preservation and popularization of our history is not the
sole responsibility of the Chief Executive; it is a joint and collective
endeavor of every freedom-loving citizen of this country.
Notably, complementing the statutory powers and functions of the
Human Rights Victims' Claims Board and the HRVV Memorial
Commission in the memorialization of HRVVs, the National Historical
Commission of the Philippines (NHCP), formerly known as the
National Historical Institute (NHI),94 is mandated to act as the
primary government agency responsible for history and is authorized
to determine all factual matters relating to official Philippine
history.95 Among others, it is tasked to: (a) conduct and support all
kinds of research relating to Philippine national and local history; (b)
develop educational materials in various media, implement historical
educational activities for the popularization of Philippine history, and
disseminate, information regarding Philippine historical events,
dates, places and personages; and (c) actively engage in the
settlement or resolution of controversies or issues relative to
historical personages, places, dates and events.96 Under R.A. Nos.
10066 (National Cultural Heritage Act of 2009)97 and 10086
(Strengthening Peoples' Nationalism Through Philippine History
Act),98 the declared State policy is to conserve, develop, promote,
and popularize the nation's historical and cultural heritage and
resources.99 Towards this end, means shall be provided to
strengthen people's nationalism, love of country, respect for its
heroes and pride for the people's accomplishments by reinforcing the
importance of Philippine national and local history in daily life with
the end in view of raising social consciousness.100 Utmost priority
shall be given not only with the research on history but also its
popularization.101chanrobleslaw
II.
The President's decision to bury Marcos at the LNMB is not done
whimsically, capriciously or arbitrarily, out of malice, ill will or
personal bias
Petitioners contend that the interment of Marcos at the LNMB will
desecrate it as a sacred and hallowed place and a revered national
shrine where the mortal remains of our country's great men and
women are interred for the inspiration and emulation of the present
generation and generations to come. They erred.
A. National Shrines
As one of the cultural properties of the Philippines, national historical
shrines (or historical shrines) refer to sites or structures hallowed and
revered for their history or association as declared by the NHCP.102
The national shrines created by law and presidential issuance include,
among others: Fort Santiago (Dambana ng Kalayaan) in Manila;103
all battlefield areas in Corregidor and Bataan;104 the site of First
Mass in the Philippines in Magallanes, Limasawa, Leyte;105
Aguinaldo Shrine or Freedom Shrine in Kawit, Cavite;106 Fort San
Antonio Abad National Shrine in Malate, Manila;107 Tirad Pass
National Shrine in Ilocos Sur;108 Ricarte Shrine109 and Aglipay
Shrine110 in Batac, Ilocos Norte; Liberty Shrine in Lapu-Lapu,
Cebu;111 "Red Beach" or the landing point of General Douglas
MacArthur and the liberating forces in Baras, Palo, Leyte;112 Dapitan
City as a National Shrine City in Zamboanga Del Norte;113 General
Leandro Locsin Fullon National Shrine in Hamtic, Antique;114 and
Mabini Shrine in Polytechnic University of the Philippines - Mabini
Campus, Sta. Mesa, Manila.115 As sites of the birth, exile,
imprisonment, detention or death of great and eminent leaders of
the nation, it is the policy of the Government to hold and keep the
national shrines as sacred and hallowed place.116 P.O. No. 105117
strictly prohibits and punishes by imprisonment and/or fine the
desecration of national shrines by disturbing their peace and serenity
through digging, excavating, defacing, causing unnecessary noise,
and committing unbecoming acts within their premises. R.A. No.
10066 also makes it punishable to intentionally modify, alter, or
destroy the original features of, or undertake construction or real
estate development in any national shrine, monument, landmark and
other historic edifices and structures, declared, classified, and
marked by the NHCP as such, without the prior written permission
from the National Commission for Culture and the Arts
(NCAA).118chanrobleslaw
As one of the cultural agencies attached to the NCAA,119 the NHCP
manages, maintains and administers national shrines, monuments,
historical sites, edifices and landmarks of significant historico-cultural
value.120 In particular, the NHCP Board has the power to approve
the declaration of historic structures and sites, such as national
shrines, monuments, landmarks and heritage houses and to
determine the manner of their identification, maintenance,
restoration, conservation, preservation and
protection.121chanrobleslaw
Excluded, however, from the jurisdiction of the NHCP are the military
memorials and battle monuments declared as national shrines, which
have been under the administration, maintenance and development
of the Philippine Veterans Affairs Office (PVAO) of the DND. Among
the military shrines are: Mt. Samat National Shrine in Pilar,
Bataan;122 Kiangan War Memorial Shrine in Linda, Kiangan,
Ifugao;123 Capas National Shrine in Capas, Tarlac;124 Ricarte
National Shrine in Malasin, Batac, Ilocos Norte;125 Balantang
Memorial Cemetery National Shrine in Jaro, Iloilo;126 Balete Pass
National Shrine in Sta. Fe, Nueva Vizcaya;127 USAFIP, NL Military
Shrine and Park in Bessang Pass, Cervantes, Ilocos Sur;128 and the
LNMB in Taguig City, Metro Manila.129chanrobleslaw
B. The Libingan Ng Mga Bayani
At the end of World War II, the entire nation was left mourning for
the death of thousands of Filipinos. Several places served as grounds
for the war dead, such as the Republic Memorial Cemetery, the
Bataan Memorial Cemetery, and other places throughout the
country. The Republic Memorial Cemetery, in particular, was
established in May 1947 as a fitting tribute and final resting place of
Filipino military personnel who died in World War II.
On October 23, 1954, President Ramon D. Magsaysay, Sr. issued E.O.
No. 77, which ordered "the remains of the war dead interred at the
Bataan Memorial Cemetery, Bataan Province, and at other places in
the Philippines, be transferred to, and reinterred at, the Republic
Memorial Cemetery at Fort Wm Mckinley, Rizal Province" so as to
minimize the expenses for the maintenance and upkeep, and to make
the remains accessible to the widows, parents, children, relatives,
and friends.
On October 27, 1954, President Magsaysay issued Proclamation No.
86, which changed the name of Republic Memorial Cemetery to
Libingan Ng Mga Bayani to symbolize "the cause for which our
soldiers have died" and to "truly express the nations esteem and
reverence for her war dead."130chanrobleslaw
On July 12, 1957, President Carlos P. Garcia issued Proclamation No.
423, which reserved for military purposes, under the administration
of the AFP Chief of Staff, the land where LNMB is located. The LNMB
was part of a military reservation site then known as Fort Wm
McKinley (now known as Fort Andres Bonifacio).
On May 28, 1967, Marcos issued Proclamation No. 208, which
excluded the LNMB from the Fort Bonifacio military reservation and
reserved the LNMB for national shrine purposes under the
administration of the National Shrines Commission (NSC) under the
DND.
On September 24, 1972, Marcos, in the exercise of his powers as the
AFP Commander-in-Chief, and pursuant to Proclamation No. 1081
dated September 21, 1972, and General Order No. 1 dated
September 22, 1972, as amended, issued Presidential Decree (P.D.)
No. 1 which reorganized the Executive Branch of the National
Government through the adoption of the Integrated Reorganization
Plan (IRP). Section 7, Article XV, Chapter I, Part XII thereof abolished
the NSC and its functions together with applicable appropriations,
records, equipment, property and such personnel as may be
necessary were transferred to the NHI under the Department of
Education (DEC). The NHI was responsible for promoting and
preserving the Philippine cultural heritage by undertaking, inter alia,
studies on Philippine history and national heroes and maintaining
national shrines and monuments.131chanrobleslaw
Pending the organization of the DEC, the functions relative to the
administration, maintenance and development of national shrines
tentatively integrated into the PVAO in July 1973.
On January 26, 1977, President Marcos issued P.D. No. 1076. Section
7, Article XV, Chapter I, Part XII of the IRP was repealed on the
grounds that "the administration, maintenance and development of
national shrines consisting of military memorials or battle
monuments can be more effectively accomplished if they are
removed from the [DEC] and transferred to the [DND] by reason of
the latter s greater capabilities and resources" and that "the
functions of the [DND] are more closely related and relevant to the
charter or significance of said national shrines." Henceforth, the
PVAO through the Military Shrines Service (MSS), which was created
to perform the functions of the abolished NSC - would administer,
maintain and develop military memorials and battle monuments
proclaimed as national shrines.
On July 25, 1987, President Corazon C. Aquino issued the
Administrative Code. The Code retains PVAO under the supervision
and control of the Secretary of National Defense.132 Among others,
PVAO shall administer, develop and maintain military shrines.133
With the approval of PVAO Rationalization Plan on June 29, 2010,
pursuant to E.O. No. 366 dated October 4, 2004, MSS was renamed
to Veterans Memorial and Historical Division, under the supervision
and control of PVAO, which is presently tasked with the management
and development of military shrines and the perpetuation of the
heroic deeds of our nation's veterans.
As a national military shrine, the main features, structures, and
facilities of the LNMB are as follows:
Tomb of the Unknown Soldiers - The main structure constructed at
the center of the cemetery where wreath laying ceremonies are held
when Philippine government officials and foreign dignitaries visit the
LNMB. The following inscription is found on the tomb: "Here lies a
Filipino soldier whose name is known only to God." Behind the tomb
are three marble pillars representing the three main island groups of
the Philippines - Luzon, Visayas and Mindanao. Buried here were the
remains of 39,000 Filipino soldiers who were originally buried in
Camp O'Donnell Concentration Camp and Fort Santiago, Intramuros,
Manila.
Heroes Memorial Gate - A structure shaped in the form of a large
concrete tripod with a stairway leading to an upper view deck and a
metal sculpture at the center. This is the first imposing structure one
sees upon entering the grounds of the cemetery complex.
Black Stone Walls - Erected on opposite sides of the main entrance
road leading to the Tomb of the Unknown Soldiers and just near the
Heroes Memorial are two 12-foot high black stone walls which bear
the words, "I do not know the dignity of his birth, but I do know the
glory of his death." that General Douglas MacArthur made during his
sentimental journey to the Philippines in 1961.
Defenders of Bataan and Corregidor Memorial Pylon - Inaugurated
on April 5, 1977 by Secretary Renato S. De Villa in memory of the
defenders of Bataan and Corregidor during World War II. This
monument is dedicated as an eternal acknowledgment of their valor
and sacrifice in defense of the Philippines.
Korean Memorial Pylon - A towering monument honoring the 112
Filipino officers and men who, as members of the Philippine
Expeditionary Forces to Korea (PEFTOK), perished during the Korean
War.
Vietnam Veterans Memorial Pylon - Dedicated to the members of the
Philippine contingents and Philippine civic action groups to Vietnam
(PHILCON--V and PHILCAG-V) who served as medical, dental,
engineering construction, community and psychological workers,
and security complement. They offered tremendous sacrifices as
they alleviated human suffering in war-ravaged Vietnam from 1964-
1971. Inscribed on the memorial pylon are the words: "To build and
not to destroy, to bring the Vietnamese people happiness and not
sorrow, to develop goodwill and not hatred."
Philippine World War II Guerillas Pylon - Erected by the Veterans
Federation of the Philippines as a testimony to the indomitable spirit
and bravery of the Filipino guerillas of World War II who refused to
be cowed into submission and carried on the fight for freedom
against an enemy with vastly superior arms and under almost
insurmountable odds. Their hardship and sufferings, as well as their
defeats and victories, are enshrined in this memorial.134
Contrary to the dissent, P.D. No. 105135 does not apply to the LNMB.
Despite the fact that P.D. No. 208 predated P.D. No. 105,136 the
LNMB was not expressly included in the national shrines enumerated
in the latter.137 The proposition that the LNMB is implicitly covered
in the catchall phrase "and others which may be proclaimed in the
future as National Shrines" is erroneous because:
chanRoblesvirtualLawlibrary(1) As stated, Marcos issued P.D. No. 208
prior to P.D. No. 105.
(2) Following the canon of statutory construction known as ejusdem
generis,138 the LNMB is not a site "of the birth, exile, imprisonment,
detention or death of great and eminent leaders of the nation." What
P.D. No. 105 contemplates are the following national shrines: Fort
Santiago ("Dambana ng Kalayaan"), all battlefield areas in Corregidor
and Bataan, the site of First Mass in the Philippines, Aguinaldo Shrine
or Freedom Shrine, Fort San Antonio Abad National Shrine, Tirad Pass
National Shrine, Ricarte Shrine, Aglipay Shrine, Liberty Shrine, "Red
Beach" or the landing point of General Douglas MacArthur and the
liberating forces, Dapitan City, General Leandro Locsin Fullon
National Shrine, and Mabini Shrine. Excluded are the military
memorials and battle monuments declared as national shrines under
the PVAO, such as: Mt. Samat National Shrine, Kiangan War
Memorial Shrine, Capas National Shrine, Ricarte National Shrine,
Balantang Memorial Cemetery National Shrine, Balete Pass National
Shrine; USAFIP, NL Military Shrine and Park, and the LNMB.
(3) Since its establishment, the LNMB has been a military shrine
under the jurisdiction of the PVAO. While P.D. No. 1 dated September
24, 1972 transferred the administration, maintenance and
development of national shrines to the NHI under the DEC, it never
actually materialized. Pending the organization of the DEC, its
functions relative to national shrines were tentatively integrated into
the PVAO in July 1973. Eventually, on January 26, 1977, Marcos
issued P.D. No. 1076. The PVAO, through the MSS, was tasked to
administer, maintain, and develop military memorials and battle
monuments proclaimed as national shrines. The reasons being that
"the administration, maintenance and development of national
shrines consisting of military memorials or battle monuments can be
more effectively accomplished if they are removed from the [DEC]
and transferred to the [DND] by reason of the latter's greater
capabilities and resources" and that "the functions of the [DND] are
more closely related and relevant to the charter or significance of
said national shrines."
The foregoing interpretation is neither narrow and myopic nor
downright error. Instead, it is consistent with the letter and intent of
P.D. No. 105.
Assuming that P.D. No. 105 is applicable, the descriptive words
"sacred and hallowed" refer to the LNMB as a place and not to each
and every mortal remains interred therein. Hence, the burial of
Marcos at the LNMB does not diminish said cemetery as a revered
and respected ground. Neither does it negate the presumed
individual or collective "heroism" of the men and women buried or
will be buried therein. The "nations esteem and reverence for her war
dead," as originally contemplated by President Magsaysay in issuing
Proclamation No. 86, still stands unaffected. That being said, the
interment of Marcos, therefore, does not constitute a violation of the
physical, historical, and cultural integrity of the LNMB as a national
military shrine.
At this juncture, reference should be made to Arlington National
Cemetery (Arlington), which is identical to the LNMB in terms of its
prominence in the U.S. It is not amiss to point that our armed forces
have been patterned after the U.S. and that its military code
produced a salutary effect in the Philippines' military justice
system.139 Hence, relevant military rules, regulations, and practices
of the U.S. have persuasive, if not the same, effect in this jurisdiction.
As one of the U.S. Army national military cemeteries,140 the
Arlington is under the jurisdiction of the Department of the Army.141
The Secretary of the U.S. Army has the responsibility to develop,
operate, manage, administer, oversee, and fund the Army national
military cemeteries in a manner and to standards that fully honor the
service and sacrifices of the deceased members of the armed forces
buried or inurned therein, and shall prescribe such regulations and
policies as may be necessary to administer the cemeteries.142 In
addition, the Secretary of the U.S. Army is empowered to appoint an
advisory committee, which shall make periodic reports and
recommendations as well as advise the Secretary with respect to the
administration of the cemetery, the erection of memorials at the
cemetery, and master planning for the cemetery.143chanrobleslaw
Similar to the Philippines, the U.S. national cemeteries are
established as national shrines in tribute to the gallant dead who
have served in the U.S. Armed Forces.144 The areas are protected,
managed and administered as suitable and dignified burial grounds
and as significant cultural resources.145 As such, the authorization of
activities that take place therein is limited to those that are consistent
with applicable legislation and that are compatible with maintaining
their solemn commemorative and historic
character.146chanrobleslaw
The LNMB is considered as a national shrine for military memorials.
The PVAO, which is empowered to administer, develop, and maintain
military shrines, is under the supervision and control of the DND. The
DND, in turn, is under the Office of the President.
The presidential power of control over the Executive Branch of
Government is a self-executing provision of the Constitution and
does not require statutory implementation, nor may its exercise be
limited, much less withdrawn, by the legislature.147 This is why
President Duterte is not bound by the alleged 1992 Agreement148
between former President Ramos and the Marcos family to have the
remains of Marcos interred in Batac, Ilocos Norte. As the incumbent
President, he is free to amend, revoke or rescind political agreements
entered into by his predecessors, and to determine policies which he
considers, based on informed judgment and presumed wisdom, will
be most effective in carrying out his mandate.
Moreover, under the Administrative Code, the President has the
power to reserve for public use and for specific public purposes any
of the lands of the public domain and that the reserved land shall
remain subject to the specific public purpose indicated until
otherwise provided by law or proclamation.149 At present, there is
no law or executive issuance specifically excluding the land in which
the LNMB is located from the use it was originally intended by the
past Presidents. The allotment of a cemetery plot at the LNMB for
Marcos as a former President and Commander-in-Chief,150 a
legislator,151 a Secretary of National Defense,152 a military
personnel,153 a veteran,154 and a Medal of Valor awardee,155
whether recognizing his contributions or simply his status as such,
satisfies the public use requirement. The disbursement of public
funds to cover the expenses incidental to the burial is granted to
compensate him for valuable public services rendered.156 Likewise,
President Duterte's determination to have Marcos' remains interred
at the LNMB was inspired by his desire for national healing and
reconciliation. Presumption of regularity in the performance of
official duty prevails over petitioners' highly disputed factual
allegation that, in the guise of exercising a presidential prerogative,
the Chief Executive is actually motivated by utang na loob (debt of
gratitude) and bayad utang (payback) to the Marcoses. As the
purpose is not self-evident, petitioners have the burden of proof to
establish the factual basis of their claim. They failed. Even so, this
Court cannot take cognizance of factual issues since We are not a
trier of facts.
C. AFP Regulations on the LNMB
A review of the regulations issued by the AFP Chief of Staff as to who
may and may not be interred at the LNMB underscores the nature
and purpose of the LNMB as an active military cemetery/grave site.
On May 13, 1947, the Chief of Staff of the Philippine Army, by the
direction of the President and by order of the Secretary of National
Defense, issued General Orders No. 111, which constituted and
activated, as of said date, the Graves Registration Platoon as a unit of
the Philippine Army.
On February 2, 1960, the AFP Chief of Staff, by order of the Secretary
of National Defense, issued AFP Regulations G 161-371
(Administrative and Special Staff Services, Grave Registration
Service), which provided that the following may be interred in the
LNMB: (a) World War II dead of the AFP and recognized guerillas; (b)
Current dead of the AFP; (c) Retired military personnel of the AFP; (d)
Remains of former members of the AFP who died while in the active
service and in the Retired List of the AFP now interred at different
cemeteries and other places throughout the Philippines or the
Secretary of National Defense; and (e) Others upon approval of the
Congress of the Philippines, the President of the Philippines or the
Secretary of National Defense. The regulation also stated that the
AFP Quartermaster General will be responsible for, among other
matters, the efficient operation of the Graves Registration Service;
the interment, disinterment and reinterment of the dead mentioned
above; and preservation of military cemeteries, national cemeteries,
and memorials.
On July 31, 1973, the AFP Chief of Staff, by order of the Secretary of
National Defense, issued AFP Regulations G 161-372 (Administration
and Operation of AFP Graves Registration Installations), which
superseded AFP Regulations G 161-371. It provided that the following
may be interred in the LNMB: (a) Deceased Veterans of the Philippine
Revolution of 1896/World War I; (b) Deceased World War II members
of the AFP and recognized guerillas; (c) Deceased military personnel
of the AFP who died while in the active duty; (d) Deceased retired
military personnel of the AFP; (e) Deceased military personnel of the
AFP interred at different cemeteries and other places outside the
LNMB; and (f) Such remains of persons as the Commander-in-Chief
of the AFP may direct. The remains of the following were not allowed
to be interred in the LNMB: (a) The spouse of an active, or retired,
deceased military personnel, recognized guerillas who
himself/herself is not a military personnel; and (b) AFP personnel
who were retireable but separated/reverted/discharged for cause, or
joined and aided the enemy of the Republic of the Philippines, or
were convicted of capital or other criminal offenses, involving moral
turpitude. The regulation also stated that the Quartermaster General
shall be responsible for, among other matters, the efficient operation
of the AFP graves registration installations; the interment,
disinterment and reinterment of deceased military personnel
mentioned above; and the preservation of military cemeteries,
proper marking and official recording of graves therein.
On April 9, 1986, AFP Chief of Staff Fidel V. Ramos, by order of
National Defense Minister, issued AFP Regulations G 161-373
(Allocation of Cemetery Plots at the Libingan Ng Mga Bayani), which
superseded AFP Regulations G 161-372. It enumerated a list of
deceased person who may be interred at the LNMB, namely: (a)
Medal of Valor Awardees; (b) Presidents or Commanders-in-Chief,
AFP; (c) Ministers of National Defense; (d) Chiefs of Staff, AFP; (e)
General/Flag Officers of the AFP; (f) Active and retired military
personnel of the AFP; (g) Veterans of Philippine Revolution of 1896,
WWI, WWII and recognized guerillas; and (h) Government
Dignitaries, Statesmen, National Artist and other deceased persons
whose interment or reinterment has been approved by the
Commander-in-Chief, Batasang Pambansa or the Minister of National
Defense. The regulation also stated that the Quartermaster General
shall be responsible for the allocation of specific section/areas for the
said deceased persons, while the Commanding Officer of the
Quartermaster Graves Registration Company shall be charged with
the preparation of grave sites, supervision of burials at LNMB and the
registration of graves.
On March 27, 1998, the AFP Chief of Staff, by order of the Secretary
of National Defense, issued AFP Regulations G 161-374 (Allocation of
Cemetery Plots at the Libingan Ng Mga Bayani), which superseded
AFP Regulations G 161-373. It provided that the following may be
interred in the LNMB: (a) Medal of Valor Awardees; (b) Presidents or
Commanders-in-Chief, AFP; (c) Secretaries of National Defense; (d)
Chiefs of Staff, AFP; (e) General/Flag Officers of the AFP; (f) Active
and retired military personnel of the AFP; (g) Veterans of Philippine
Revolution of 1890, WWI, WWII and recognized guerillas; (h)
Government Dignitaries, Statesmen, National Artists and other
deceased persons whose interment or reinterment has been
approved by the Commander-in-Chief, Congress or Secretary of
National Defense; and (i) Former Presidents, Secretaries of Defense,
CSAFP, Generals/Flag Officers, Dignitaries, Statesmen, National
Artists, widows of former Presidents, Secretaries of National Defense
and Chief of Staff. The remains of the following were not allowed to
be interred in the LNMB: (a) Personnel who were dishonorably
separated/reverted/discharged from the service; and (b) Authorized
personnel who were convicted by final judgment of an offense
involving moral turpitude. Like AFP Regulations G 161-373, it stated
that the Quartermaster General shall be responsible for the
allocation of specific section/areas for the deceased persons,
whereas the Commanding Officer of the Quartermaster Graves
Registration Unit shall be charged with the preparation of grave sites,
supervision of burials, and the registration of graves.
Finally, on September 11, 2000, the AFP Chief of Staff, by the order
of the Secretary of National Defense, issued AFP Regulations G 161-
375 (Allocation of Cemetery Plots at the Libingan Ng Mga Bayani),
which superseded AFP Regulations G 161-374. The regulation stated
that the Chief of Staff shall be responsible for the issuance of
interment directive for all active military personnel for interment,
authorized personnel (such as those former members of the AFP who
laterally entered or joined the Philippine Coast Guard [PCG] and the
Philippine National Police [PNP]), and retirees, veterans and
reservists enumerated therein. The Quartermaster General is tasked
to exercise over-all supervision in the implementation of the
regulation and the Commander ASCOM, PA through the
Commanding Officer of Grave Services Unit is charged with the
registration of the deceased/graves, the allocation of specific
section/area at the LNMB for interment of deceased, the preparation
of grave sites, and the supervision of burials.
Under AFP Regulations G 161-375, the following are eligible for
interment at the LNMB: (a) Medal of Valor Awardees; (b) Presidents
or Commanders-in-Chief, AFP; (c) Secretaries of National Defense; (d)
Chiefs of Staff, AFP; (e) General/Flag Officers of the AFP; (f) Active
and retired military personnel of the AFP to include active draftees
and trainees who died in line of duty, active reservists and CAFGU
Active Auxiliary (CAA) who died in combat operations or combat
related activities; (g) Former members of the AFP who laterally
entered or joined the PCG and the PNP; (h) Veterans of Philippine
Revolution of 1890, WWI, WWII and recognized guerillas; (i)
Government Dignitaries, Statesmen, National Artists and other
deceased persons whose interment or reinterment has been
approved by the Commander-in-Chief, Congress or the Secretary of
National Defense; and G) Former Presidents, Secretaries of Defense,
Dignitaries, Statesmen, National Artists, widows of Former
Presidents, Secretaries of National Defense and Chief of Staff. Similar
to AFP Regulations G 161-374, the following are not qualified to be
interred in the LNMB: (a) Personnel who were dishonorably
separated/reverted/discharged from the service; and (b) Authorized
personnel who were convicted by final judgment of an offense
involving moral turpitude.
In the absence of any executive issuance or law to the contrary, the
AFP Regulations G 161-375 remains to be the sole authority in
determining who are entitled and disqualified to be interred at the
LNMB. Interestingly, even if they were empowered to do so, former
Presidents Corazon C. Aquino and Benigno Simeon C. Aquino III, who
were themselves aggrieved at the Martial Law, did not revise the
rules by expressly prohibiting the burial of Marcos at the LNMB. The
validity of AFP Regulations G 161-375 must, therefor, be sustained
for having been issued by the AFP Chief of Staff acting under the
direction of the Secretary of National Defense, who is the alter ego
of the President.
x x x In Joson v. Torres, we explained the concept of the alter ego
principle or the doctrine of qualified political agency and its limit in
this wise:
chanRoblesvirtualLawlibraryUnder this doctrine, which recognizes
the establishment of a single executive, all executive and
administrative organizations are adjuncts of the Executive
Department, the heads of the various executive departments are
assistants and agents of the Chief Executive, and, except in cases
where the Chief Executive is required by the Constitution or law to
act in person or the exigencies of the situation demand that he act
personally, the multifarious executive and administrative functions
of the Chief Executive are performed by and through the executive
departments, and the acts of the Secretaries of such departments,
performed and promulgated in the regular course of business, are,
unless disapproved or reprobated by the Chief Executive
presumptively the acts of the Chief Executive. (Emphasis ours,
citation omitted.)157chanroblesvirtuallawlibrary
It has been held that an administrative regulation adopted pursuant
to law has the force and effect of law and, until set aside, is binding
upon executive and administrative agencies, including the President
as the chief executor of laws.158chanrobleslaw
1. Qualification under the AFP Regulations
AFP Regulations G 161-375 should not be stricken down in the
absence of clear and unmistakable showing that it has been issued
with grave abuse of discretion amounting to lack or excess of
jurisdiction. Neither could it be considered ultra vires for purportedly
providing incomplete, whimsical, and capricious standards for
qualification for burial at the LNMB.
To compare, We again refer to the U.S. Army regulations on
Arlington. In the U.S., the Secretary of the Army, with the approval of
the Secretary of Defense, determines eligibility for interment or
inurnment in the Army national military cemeteries.159 Effective
October 26, 2016, the rule160 is as
follows:ChanRoblesVirtualawlibrary
Only those who qualify as a primarily eligible person or a derivatively
eligible person are eligible for interment in Arlington National
Cemetery, unless otherwise prohibited as provided for in §§
553.19161-553.20,162 provided that the last period of active duty of
the service member or veteran ended with an honorable discharge.
(a) Primarily eligible persons. The following are primarily eligible
persons for purposes of interment:
chanRoblesvirtualLawlibrary(1) Any service member who dies on
active duty in the U.S. Armed Forces (except those service members
serving on active duty for training only), if the General Courts Martial
Convening Authority grants a certificate of honorable service.
(2) Any veteran retired from a Reserve component who served a
period of active duty (other than for training), is carried on the official
retired list, and is entitled to receive military retired pay.
(3) Any veteran retired from active military service and entitled to
receive military retired pay.
(4) Any veteran who received an honorable discharge from the
Armed Forces prior to October 1, 1949, who was discharged for a
permanent physical disability, who served on active duty (other than
for training), and who would have been eligible for retirement under
the provisions of 10 U.S.C. 1201 had the statute been in effect on the
date of separation.
(5) Any veteran awarded one of the following decorations:
chanRoblesvirtualLawlibrary(i) Medal of Honor;163chanrobleslaw
(ii) Distinguished Service Cross, Air Force Cross, or Navy Cross;
(iii) Distinguished Service Medal;
(iv) Silver Star; or
(v) Purple Heart.
(6) Any veteran who served on active duty (other than active duty for
training) and who held any of the following positions:
chanRoblesvirtualLawlibrary(i) President or Vice President of the
United States;
(ii) Elected member of the U.S. Congress;
(iii) Chief Justice of the Supreme Court of the United States or
Associate Justice of the Supreme Court of the United States;
(iv) A position listed, at the time the person held the position, in 5
U.S.C. 5312164 or 5313165 (Levels I and II of the Executive Schedule);
or
(v) Chief of Mission of a Category 4, 5, or post if the Department of
State classified that post as a Category 4, 5, or 5+ post during the
person's tenure as Chief of Mission.
(7) Any former prisoner of war who, while a prisoner of war, served
honorably in the active military service, and who died on or after
November 30, 1993.
(b) Derivatively eligible persons. The following individuals are
derivatively eligible persons for purposes of interment who may be
interred if space is available in the gravesite of the primarily eligible
person:
chanRoblesvirtualLawlibrary(1) The spouse of a primarily eligible
person who is or will be interred in Arlington National Cemetery. A
former spouse of a primarily eligible person is not eligible for
interment in Arlington National Cemetery under this paragraph.
(2) The spouse of an active duty service member or an eligible
veteran, who was:
chanRoblesvirtualLawlibrary(i) Lost or buried at sea, temporarily
interred overseas due to action by the Government, or officially
determined to be missing in action;
(ii) Buried in a U.S. military cemetery maintained by the American
Battle Monuments Commission; or
(iii) Interred in Arlington National Cemetery as part of a group burial
(the derivatively eligible spouse may not be buried in the group burial
gravesite).
(3) The parents of a minor child or a permanently dependent adult
child, whose remains were interred in Arlington National Cemetery
based on the eligibility of a parent at the time of the child's death,
unless eligibility of the non-service connected parent is lost through
divorce from the primarily eligible parent.
(4) An honorably discharged veteran who does not qualify as a
primarily eligible person, if the veteran will be buried in the same
gravesite as an already interred primarily eligible person who is a
close relative, where the interment meets the following conditions:
chanRoblesvirtualLawlibrary(i) The veteran is without minor or
unmarried adult dependent children;
(ii) The veteran will not occupy space reserved for the spouse, a
minor child, or a permanently dependent adult child;
(iii) All other close relatives of the primarily eligible person concur
with the interment of the veteran with the primarily eligible person
by signing a notarized statement;
(iv) The veteran's spouse waives any entitlement to interment in
Arlington National Cemetery, where such entitlement might be
based on the veteran's interment in Arlington National Cemetery.
The Executive Director may set aside the spouse's waiver, provided
space is available in the same gravesite, and all close relatives of the
primarily eligible person concur;
(v) Any cost of moving, recasketing, or revaulting the remains will be
paid from private funds.
There is a separate list of eligible with respect to the inurnment of
cremated remains in the Columbarium,166 interment of cremated
remains in the Unmarked Area,167 and group burial.168 As a
national military cemetery, eligibility standards for interment,
inurnment, or memorialization in Arlington are based on honorable
military service.169 Exceptions to the eligibility standards for new
graves, which are rarely granted, are for those persons who have
made significant contributions that directly and substantially
benefited the U.S. military.170chanrobleslaw
Judging from the foregoing, it is glaring that the U.S. Army regulations
on Arlington and the AFP Regulations G 161-375 on the LNMB, as a
general rule, recognize and reward the military services or military
related activities of the deceased. Compared with the latter,
however, the former is actually less generous in granting the privilege
of interment since only the spouse or parent, under certain
conditions, may be allowed "if space is available in the gravesite of
the primarily eligible person."
It is not contrary to the "well-established custom," as the dissent
described it, to argue that the word "bayani" in the LNMB has
become a misnomer since while a symbolism of heroism may attach
to the LNMB as a national shrine for military memorial, the same
does not automatically attach to its feature as a military cemetery
and to those who were already laid or will be laid therein. As stated,
the purpose of the LNMB, both from the legal and historical
perspectives, has neither been to confer to the people buried there
the title of "hero" nor to require that only those interred therein
should be treated as a "hero." In fact, the privilege of internment at
the LNMB has been loosen up through the years. Since 1986, the list
of eligible includes not only those who rendered active military
service or military-related activities but also non-military personnel
who were recognized for their significant contributions to the
Philippine society (such as government dignitaries, statesmen,
national artists, and other deceased persons whose interment or
reinterment has been approved by the Commander-in-Chief,
Congress or Secretary of National Defense). In 1998, the widows of
former Presidents, Secretaries of National Defense and Chief of Staff
were added to the list. Whether or not the extension of burial
privilege to civilians is unwarranted and should be restricted in order
to be consistent with the original purpose of the LNMB is immaterial
and irrelevant to the issue at bar since it is indubitable that Marcos
had rendered significant active military service and military-related
activities.
Petitioners did not dispute that Marcos was a former President and
Commander-in-Chief, a legislator, a Secretary of National Defense, a
military personnel, a veteran, and a Medal of Valor awardee. For his
alleged human rights abuses and corrupt practices, we may disregard
Marcos as a President and Commander-in-Chief, but we cannot deny
him the right to be acknowledged based on the other positions he
held or the awards he received. In this sense, We agree with the
proposition that Marcos should be viewed and judged in his totality
as a person. While he was not all good, he was not pure evil either.
Certainly, just a human who erred like us.
Our laws give high regard to Marcos as a Medal of Valor awardee and
a veteran. R.A. No. 9049171 declares the policy of the State "to
consistently honor its military heroes in order to strengthen the
patriotic spirit and nationalist consciousness of the military."172 For
the "supreme self--sacrifice and distinctive acts of heroism and
gallantry,"173 a Medal of Valor awardee or his/her
dependents/heirs/beneficiaries are entitled to the following social
services and financial rewards:
Tax-exempt lifetime monthly gratuity of Twenty Thousand Pesos
(P20,000.00), which is separate and distinct from any salary or
pension that the awardee currently receives or will receive from the
government of the Philippines;174chanrobleslaw
Precedence in employment in government agencies or government-
owned or controlled corporation, if the job qualifications or
requirements are met;
Priority in the approval of the awardee's housing application under
existing housing programs of the government;
Priority in the acquisition of public lands under the Public Land Act
and preferential right in the lease of pasture lands and exploitation
of natural resources;
Privilege of obtaining loans in an aggregate amount not exceeding
Five Hundred Thousand Pesos (P500,000.00) from
government-owned or controlled financial institutions without
having to put up any collateral or constitute any pledge or mortgage
to secure the payment of the loan;
Twenty (20%) percent discount from all establishments relative to
utilization of transportation services, hotels and similar lodging
establishments, restaurants, recreation and sport centers and
purchase of medicine anywhere in the country;
Twenty (20%) percent discount on admission fees charged by
theaters, cinema houses and concert halls, circuses, carnivals and
other similar places of culture, leisure and amusement;
Free medical and dental services and consultation in hospital and
clinics anywhere in the country;
Exemption from the payment of tuition and matriculation fees in
public or private schools, universities, colleges and other educational
institutions in any pre-school, baccalaureate or post- graduate
courses such as or including course leading to the degree of Doctor
of Medicine (MD), Bachelor of Laws (LLB), and Bachelor of Science in
Nursing (BSN) or allied and similar courses; and cralawlawlibrary
If interested and qualified, a quota is given to join the cadet corps of
the Philippine Military Academy or otherwise priority for direct
commission, call to active duty (CAD) and/or enlistment in regular
force of the AFP.
On the other hand, in recognizing their patriotic services in times of
war and peace for the cause of freedom and democracy; for the
attainment of national unity, independence, and socioeconomic
advancement; and for the maintenance of peace and order,175 R.A.
No. 6948, as amended,176 grants our veterans177 and their
dependents or survivors with pension (old age, disability, total
administrative disability, and death) and non-pension (burial,
education, hospitalization, and medical care and treatment) benefits
as well as provisions from the local governments. Under the law, the
benefits may be withheld if the Commission on Human Rights
certifies to the AFP General Headquarters that the veteran has been
found guilty by final judgment of a gross human rights violation while
in the service, but this factor shall not be considered taken against his
next of kin.178chanrobleslaw
2. Disqualification under the AFP Regulations
Aside from being eligible for burial at the LNMB, Marcos possessed
none of the disqualifications stated in AFP Regulations G 161-375. He
was neither convicted by final judgment of the offense involving
moral turpitude nor dishonorably separated/reverted/discharged
from active military service.
Petitioners, however, protest that a narrow interpretation of the AFP
regulations disregards historical context and the rule on statutory
construction. They urge the Court to construe statutes not literally
but according to their spirit and reason.
It is argued that Marcos committed offenses involving moral
turpitude for his gross human rights violations, massive graft and
corruption, and dubious military records, as found by foreign and
local courts as well as administrative agencies. By going into exile, he
deliberately evaded liability for his actions. And by allowing death to
overtake him, he inevitably escaped the prospect of facing
accountability for his crimes. They also contend that his removal in
the 1986 popular uprising is a clear sign of his discharge from the AFP.
The People Power Revolution was the direct exercise of the Filipinos'
power to overthrow an illegitimate and oppressive regime. As a
sovereign act, it necessarily includes the power to adjudge him as
dishonorably discharged from the AFP.
Furthermore, according to petitioners, to limit the application of the
disqualifying provisions of AFP Regulations G 161-375 only to soldiers
would be unfair (since, unlike Presidents, soldiers have an additional
cause for disqualification) and lead to absurd results (because
soldiers who were dishonorably discharged would be disqualified for
acts that are less atrocious than that committed by Marcos). Also, the
AFP regulations would place Marcos in the same class as the other
Philippine Presidents when in fact he is a class of his own, sui generis.
The other Presidents were never removed by People Power
Revolution and were never subject of laws declaring them to have
committed human rights violations. Thus, the intended burial would
be an act of similarly treating persons who are differently situated.
Despite all these ostensibly persuasive arguments, the fact remains
that Marcos was not convicted by final judgment of any offense
involving moral turpitude. No less than the 1987 Constitution
mandates that a person shall not be held to answer for a criminal
offense without due process of law and that, "[i]n all criminal
prosecutions, the accused shall be presum innocent until the
contrary is proved, and shall enjoy the right to be heard by himself
and counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy, impartial, and public trial,
to meet the witnesses face to face, and to have compulsory process
to secure the attendance of witnesses and the production of
evidence in his behalf."179 Even the U.N. principles on reparation
and to combat impunity cited by petitioners unequivocally guarantee
the rights of the accused, providing that:ChanRoblesVirtualawlibrary
XIII. Rights of others
27. Nothing in this document is to be construed as derogating from
internationally or nationally protected rights of others, in particular
the right of an accused person to benefit from applicable standards
of due process.
xxx
PRINCIPLE 9. GUARANTEES FOR PERSONS IMPLICATED
Before a commission identifies perpetrators in its report, the
individuals concerned shall be entitled to the following guarantees:
chanRoblesvirtualLawlibrary(a) The commission must try to
corroborate information implicating individuals before they are
named publicly;
(b) The individuals implicated shall be afforded an opportunity to
provide a statement setting forth their version of the facts either at
a hearing convened by the commission while conducting its
investigation or through submission of a document equivalent to a
right of reply for inclusion in the commission's file.
To note, in the U.S., a person found to have committed a Federal or
State capital crime (i.e., a crime which a sentence of imprisonment
for life or death penalty may be imposed) but who has not been
convicted by reason of not being available for trial due to death or
flight to avoid prosecution, may be ineligible for interment,
inurnment, or memorialization in an Army national military
cemetery. Nevertheless, such ineligibility must still observe the
procedures specified in § 553.21.180chanrobleslaw
The various cases cited by petitiOners, which were decided with
finality by courts here and abroad, have no bearing in this case since
they are merely civil in nature; hence, cannot and do not establish
moral turpitude.
Also, the equal protection clause is not violated. Generally, there is
no property right to safeguard because even if one is eligible to be
buried at the LNMB, such fact would only give him or her the privilege
to be interred therein. Unless there is a favorable recommendation
from the Commander--in-Chief, the Congress or the Secretary of
National Defense, no right can be said to have ripen. Until then, such
inchoate right is not legally demandable and enforceable.
Assuming that there is a property right to protect, the requisites of
equal protection clause are not met.181 In this case, there is a real
and substantial distinction between a military personnel and a
former President. The conditions of dishonorable discharge under
the Articles of War182 attach only to the members of the military.
There is also no substantial distinction between Marcos and the three
Philippine Presidents buried at the LNMB (Presidents Quirino, Garcia,
and Macapagal). All of them were not convicted of a crime involving
moral turpitude. In addition, the classification between a military
personnel and a former President is germane to the purposes of
Proclamation No. 208 and P.D. No. 1076. While the LNMB is a
national shrine for military memorials, it is also an active military
cemetery that recognizes the status or position held by the persons
interred therein.
Likewise, Marcos was honorably discharged from military service.
PVAO expressly recognized him as a retired veteran pursuant to R.A.
No. 6948, as amended. Petitioners have not shown that he was
dishonorably discharged from military service under AFP Circular 17,
Series of 1987 (Administrative Discharge Prior to Expiration of Term
of Enlistment) for violating Articles 94, 95 and 97 of the Articles of
War.183 The NHCP study184 is incomplete with respect to his entire
military career as it failed to cite and include the official records of
the AFP.
With respect to the phrase "[p]ersonnel who were dishonorably
separated/reverted/discharged from the service," the same should
be viewed in light of the definition provided by AFP Regulations G
161-375 to the term "active service" which is "[s]ervice rendered by
a military person as a Commissioned Officer, enlisted man/woman,
probationary officer, trainee or draftee in the Armed Forces of the
Philippines and service rendered by him/her as a civilian official or
employee in the Philippine Government prior to the date of his/her
separation or retirement from the Armed Forces of the Philippines,
for which military and/or civilian service he/she shall have received
pay from the Philippine Government, and/or such others as may be
hereafter be prescribed by law as active service (PD 1638, as
amended)."185 To my mind, the word "service" should be construed
as that rendered by a military person in the AFP, including civil
service, from the time of his/her commission, enlistment, probation,
training or drafting, up to the date of his/her separation or
retirement from the AFP. Civil service after honorable separation and
retirement from the AFP is outside the context of "service" under AFP
Regulations G 161-375.
Hence, it cannot be conveniently claimed that Marcos' ouster from
the presidency during the EDSA Revolution is tantamount to his
dishonorable separation, reversion or discharge from the military
service. The fact that the President is the Commander-in-Chief of the
AFP under the 1987 Constitution only enshrines the principle of
supremacy of civilian authority over the military. Not being a military
person who may be prosecuted before the court martial, the
President can hardly be deemed "dishonorably
separated/reverted/discharged from the service" as contemplated
by AFP Regulations G 161-375. Dishonorable discharge through a
successful revolution is an extra-constitutional and direct sovereign
act of the people which is beyond the ambit of judicial review, let
alone a mere administrative regulation.
It is undeniable that former President Marcos was forced out of office
by the people through the so-called EDSA Revolution. Said political
act of the people should not be automatically given a particular legal
meaning other than its obvious consequence- that of ousting him as
president. To do otherwise would lead the Court to the treacherous
and perilous path of having to make choices from multifarious
inferences or theories arising from the various acts of the people. It
is not the function of the Court, for instance, to divine the exact
implications or significance of the number of votes obtained in
elections, or the message from the number of participants in public
assemblies. If the Court is not to fall into the pitfalls of getting
embroiled in political and oftentimes emotional, if not acrimonious,
debates, it must remain steadfast in abiding by its recognized guiding
stars - clear constitutional and legal rules - not by the uncertain,
ambiguous and confusing messages from the actions of the people.
Conclusion
In sum, there is no clear constitutional or legal basis to hold that there
was a grave abuse of discretion amounting to lack or excess of
jurisdiction which would justify the Court to interpose its authority to
check and override an act entrusted to the judgment of another
branch. Truly, the President's discretion is not totally unfettered.
"Discretion is not a free-spirited stallion that runs and roams
wherever it pleases but is reined in to keep it from straying. In its
classic formulation, 'discretion is not unconfined and vagrant' but
'canalized within banks that keep it from overflowing.'"186 At bar,
President Duterte, through the public respondents, acted within the
bounds of the law and jurisprudence. Notwithstanding the call of
human rights advocates, the Court must uphold what is legal and just.
And that is not to deny Marcos of his rightful place at the LNMB. For
even the Framers of our Constitution intend that full respect for
human rights is available at any stage of a person's development,
from the time he or she becomes a person to the time he or she
leaves this earth.187chanrobleslaw
There are certain things that are better left for history - not this Court
- to adjudge. The Court could only do so much in accordance with the
clearly established rules and principles. Beyond that, it is ultimately
for the people themselves, as the sovereign, to decide, a task that
may require the better perspective that the passage of time provides.
In the meantime, the country must mov'e on and let this issue rest.
WHEREFORE, PREMISES CONSIDERED, the petitions are DISMISSED.
Necessarily, the Status Quo Ante Order is hereby LIFTED.
G.R. Nos. 187117 and 187127 October 12, 2011
PEOPLE OF THE PHILIPPINES, Petitioner,
vs.
HON. JOSE D. AZARRAGA and JOHN REY PREVENDIDO,
Respondents.
DECISION
SERENO, J.:
In the present Petition for Prohibition with Prayer for Temporary
Restraining Order/Preliminary Mandatory Injunction under Rule 65
of the Rules of Court, petitioner questions the legality of Chapter V,
Section 9 of A.M. No. 03-8-02-SC or the "Guidelines on the Selection
and Appointment of Executive Judges and Defining Their Powers,
Prerogatives and Duties" issued by this Court on 27 January 2004, in
relation to Section 90 of the Comprehensive Dangerous Drugs Act of
2002.
The antecedent facts are as follows:
On 7 February 2009, petitioner filed two (2) Informations1 before the
Regional Trial Court (RTC) of Iloilo City against private respondent
John Rey Prevendido for Violation of Article II, Sections 5 and 11 of
Republic Act (R.A.) No. 9165 or the Comprehensive Dangerous Drugs
Act of 2002. The cases were raffled to Branch 36, a designated special
court pursuant to R.A. 9165, presided by Judge Victor E. Gelvezon.
Soon after, however, Judge Gelvezon disclosed that Coreen
Gemarino, the Philippine Drug Enforcement Agency (PDEA) operative
who conducted the entrapment operation against private
respondent, had close family ties with him. Thus, in order to preserve
the integrity of the court, Judge Gelvezon issued an Order2 dated 17
February 2009 inhibiting himself from trying the case. The cases were
then reassigned to the other special court, Branch 25, presided by
Judge Evelyn E. Salao.
On 24 February 2009, Judge Salao also issued an Order3 whereby she
inhibited herself for the reason that Coreen Gemarino was a cousin;
thus, the cases were endorsed to the Office of the Executive Judge
for reassignment.
Citing Chap. V, Sec. 9 of A.M. No. 03-8-02-SC, Executive Judge Antonio
M. Natino ordered the Clerk of Court to forward the entire records of
the cases to Branch 37 presided over by public respondent, the
pairing judge of Branch 36, which was the special court that originally
handled the cases.4
On 16 March 2009, however, as soon as public respondent
proceeded with the cases, Prosecutor Kenneth John Amamanglon
filed a Motion to Transfer Case to a Branch of Competent
Jurisdiction.5 He questioned the jurisdiction of public respondent to
hear the cases, citing Sec. 90 of R.A. 9165. Prosecutor Amamanglon
also claimed that, as the prosecutor assigned to Branch 37, he was
not among the prosecutors who had been designated to handle cases
exclusively involving violations of R.A. 9165.
On the same day, respondent judge denied the motion on three
grounds, to wit:
1. This motion ought not to have been filed in this court for lack of
legal basis;
2. This court is not without jurisdiction to hear the instant case;
3. The matter about the appearance of Trial Prosecutor Kenneth John
Amamanglon should have been addressed to the Department
concerned.6
Respondent judge thus set the hearing on the Motion for Admission
to Bail7 filed on 10 February 2008. He directed the city prosecutor to
assign an assistant city prosecutor to handle the case effective 20
March 2009.
Prosecutor Amamanglon, however, moved for a reconsideration8 of
respondent judge’s Order, contending that the trial court needed a
special designation from this Court in order to have jurisdiction over
the cases. Thus, Prosecutor Amamanglon concluded, absent the
special designation, respondent court should remand the cases to the
Office of the Executive Judge for re-raffling to another court specially
designated pursuant to R.A. 9165. To support its contention,
petitioner further cited this Court’s 11 October 2005 Resolution in
A.M. No. 05-9-03-SC, which clarified whether drug courts should be
included in the regular raffle.
Respondent judge denied the Motion for Reconsideration in its Order
dated 20 March 2009.9 He held that A.M. No. 03-8-02-SC should be
deemed to have modified the designation of special courts for drug
cases. He declared that, under the circumstances enumerated in
A.M. No. 03-8-02-SC, Branch 37 itself became a special court. He
further ruled that A.M. No. 05-9-03-SC was inapplicable.
On 23 March 2009, the city prosecutor endorsed the assailed Orders
of respondent judge to the Office of the Solicitor General for the
appropriate review and filing of the necessary action.10 Thus, on 24
March 2009, petitioner filed the present petition before this Court.
On 27 March 2009, while the Petition for Prohibition was pending,
respondent judge issued an Order11 inhibiting himself from hearing
the case after private respondent alleged that the former was biased
for the prosecution. The cases were thereafter transferred to Branch
35, also a regular court, presided by Judge Fe Gallon-Gayanilo.
Absent a temporary restraining order from this Court, the trial court
proceeded to hear the cases.
The present petition raises two (2) issues, to wit:
I. WHETHER OR NOT RESPONDENT JUDGE HAS JURISDICTION OVER
THE DRUG CASES IN CRIMINAL CASE NOS. 09-68815/16 DESPITE HIS
ASSIGNMENT TO A REGULAR COURT
II. WHETHER OR NOT A.M. NO. 03-8-02-SC IS IN CONFORMITY WITH
SECTION 90 OF REPUBLIC ACT NO. 9165, MANDATING THE
DESIGNATION OF SPECIAL COURTS TO EXCLUSIVELY TRY AND HEAR
DRUG CASES12
At the outset, it is an established policy that parties must observe the
hierarchy of courts before they can seek relief directly from this
Court. The rationale for this rule is twofold: (a) it would be an
imposition upon the limited time of this Court; and (b) it would
inevitably result in a delay, intended or otherwise, in the adjudication
of cases, which in some instances, had to be remanded or referred to
the lower court as the proper forum under the rules of procedure, or
as better equipped to resolve the issues because this Court is not a
trier of facts.13 It is only for special and compelling reasons that this
Court shall exercise its primary jurisdiction over the extraordinary
remedy of writ of prohibition. However, in the case at bar, since it is
only the Supreme Court itself that can clarify the assailed guidelines,
petitioner is exempted from this rule.
The petition, however, must fail.
The crux of the matter in the present case is whether or not this Court
violated Sec. 90 of R.A. 9165 when it issued A.M. 03-8-02-SC,
particularly Chap. V, Sec. 9, which prescribes the manner in which the
executive judge reassigns cases in instances of inhibition or
disqualification of judges sitting in special courts. Petitioner insists
that should respondent judge (now Judge Fe Gallon-Gayanilo of
Branch 35) continue hearing and trying the case, it "would result in
the circumvention of the legislative conferment of jurisdiction to a
court to exclusively try and hear drug offenses only."14
Contrary to the assertion of petitioner, this Court did not commit any
violation of R.A. 9165 when it issued the assailed guidelines. Rather,
it merely obeyed Article VIII, Sec. 5(5) of the 1987 Constitution, which
mandates that the rules promulgated by this Court should provide a
simplified and inexpensive procedure for the speedy disposition of
cases, in conformity with the right of all persons to a speedy
disposition of their cases before all judicial, quasi-judicial, or
administrative bodies.15 As this Court stated in San Ildefonso Lines v.
Court of Appeals,16 there must be a renewed adherence to the time-
honored dictum that procedural rules are designed not to defeat, but
to safeguard, the ends of substantial justice.
Petitioner grounds its assertion on Sec. 90 of R.A. 9165, which states:
Jurisdiction. — The Supreme Court shall designate special courts
from among the existing Regional Trial Courts in each judicial region
to exclusively try and hear cases involving violations of this Act. The
number of courts designated in each judicial region shall be based on
the population and the number of cases pending in their respective
jurisdiction.
xxx xxx xxx
Trial of the case under this Section shall be finished by the court not
later than sixty (60) days from the date of the filing of the
information. Decision on said cases shall be rendered within a period
of fifteen (15) days from the date of submission of the case for
resolution.
Petitioner interprets the above provision to mean that a court must
be specifically designated by the Supreme Court as a special court.
But what is Chap. V, Sec. 9 of A.M. No. 03-8-02-SC if not an express
designation of a special court?
Chap. V, Sec. 9 of A.M. No. 03-8-02-SC provides:
Raffle and re-assignment of cases in special courts where judge is
disqualified or voluntarily inhibits himself/herself from hearing case.
— (a) Where a judge in a court designated to try and decide
xxx xxx xxx
(3) cases involving violations of the Dangerous Drugs Act, or ...
is disqualified or voluntarily inhibits himself/herself from hearing a
case, the following guidelines shall be observed:
xxx xxx xxx
(ii) Where there are more than two special courts of the same nature
in the station, the Executive Judge shall immediately assign the case
by raffle to the other or another special court of the same nature. In
case the Presiding Judge of the other special court is also disqualified
or inhibits himself/herself, the case shall be forwarded to the pairing
judge of the special court which originally handled the said case. If
the pairing judge is also disqualified or inhibits himself/herself, the
case shall be raffled to the other regular courts. At the next raffle, an
additional case shall be assigned to the disqualified or inhibiting
judge/s to replace the case so removed from his/her/their court...
(Emphasis supplied.)
Under R.A. 9165, Congress empowered this Court with the full
discretion to designate special courts to hear, try and decide drug
cases. It was precisely in the exercise of this discretionary power that
the powers of the executive judge were included in Chap. V, Sec. 9 of
A.M. No. 03-8-02-SC vis-à-vis Sec. 5(5) of Article VIII of the 1987
Constitution. Thus, in cases of inhibition or disqualification, the
executive judge is mandated to assign the drug case to a regular court
in the following order: first, to the pairing judge of the special court
where the case was originally assigned; and, second, if the pairing
judge is likewise disqualified or has inhibited himself, then to another
regular court through a raffle. Under these exceptional
circumstances, this Court designated the regular court, ipso facto, as
a special court – but only for that case. Being a "designated special
court," it is likewise bound to follow the relevant rules in trying and
deciding the drug case pursuant to R.A. 9165.
Petitioner also contends that the legislative intent of R.A. 9165 is "to
make use of the expertise of trial judges in complicated and technical
rules of the special drug law." Thus, petitioner suggests that in
instances in which all the judges of special courts have inhibited
themselves or are otherwise disqualified, the venue for the affected
drug cases should be transferred to the nearest station that has
designated special courts.
Petitioner’s suggestion is ill-advised. To subscribe to this suggestion
is to defeat the purpose of the law. Undoubtedly, petitioner’s
unwarranted suggestion would entail the use of precious resources,
time and effort to transfer the cases to another station. On the other
hand, the assailed guidelines provide for a much more practical and
expedient manner of hearing and deciding the cases. To reiterate,
over and above utilizing the expertise of trial judges, the rationale
behind Sec. 90 of R.A. 9165 and Chap. V, Sec. 9 of A.M. No. 03-8-02-
SC is to effect an efficient administration of justice and speedy
disposition of cases, as well as to breathe life into the policy
enunciated in Sec. 2 of R.A. 9165, to wit:
Declaration of policy. – It is the policy of the State to safeguard the
integrity of its territory and the well-being of its citizenry particularly
the youth, from the harmful effects of dangerous drugs on their
physical and mental well-being, and to defend the same against acts
or omissions detrimental to their development and preservation. In
view of the foregoing, the State needs to enhance further the efficacy
of the law against dangerous drugs, it being one of today's more
serious social ills.
Toward this end, the government shall pursue an intensive and
unrelenting campaign against the trafficking and use of dangerous
drugs and other similar substances through an integrated system of
planning, implementation and enforcement of anti-drug abuse
policies, programs, and projects. The government shall however aim
to achieve a balance in the national drug control program so that
people with legitimate medical needs are not prevented from being
treated with adequate amounts of appropriate medications, which
include the use of dangerous drugs.
It is further declared the policy of the State to provide effective
mechanisms or measures to re-integrate into society individuals who
have fallen victims to drug abuse or dangerous drug dependence
through sustainable programs of treatment and rehabilitation.
(Emphasis supplied.)
As a matter of fact, this Court also issued similar guidelines with
regard to environmental cases,17 election cases involving elective
municipal officials,18 and cases that involve killings of political
activists and members of media.19 Foremost in its mind is the speedy
and efficient administration of justice.
Petitioner further points out that this Court issued A.M. No. 05-9-03-
SC to define the phrase "to exclusively try and hear cases involving
violations of this Act" to mean "...[c]ourts designated as special
courts for drug cases shall try and hear drug-related cases only, i.e.,
cases involving violations of RA 9165, to the exclusion of other
courts." Hence, petitioner submits, drug cases should not be assigned
to regular courts according to the procedure provided in A.M. No. 03-
8-02-SC; in other words, the two issuances contradict each other.
Again, this Court disagrees.
Petitioner underestimates the rule-making power of this Court.
Nothing in A.M. No. 05-9-03-SC or in A.M. No. 03-8-03-SC suggests
that they contradict each other. In fact, both were issued with a
common rationale, that is, to "expeditiously resolve criminal cases
involving violations of R.A. 9165," especially in the light of the strict
time frame provided in Sec. 90 of R.A. 9165. Both provide for the
guidelines regarding the assignment of drug cases to special courts.
Thus, A.M. No. 05-9-03-SC provides for the exemption of special
courts from the regular raffle under normal circumstances, while
A.M. No. 03-8-02-SC provide for the assignment of drug cases to
special courts except under special circumstances that would warrant
reassignment to a regular court.
Moreover, the exemption of special courts from the regular raffle
was not established as an ironclad rule.1avvphi1 A.M. No. 05-9-03-SC
does in fact allow special courts to acquire jurisdiction over cases that
are not drug cases. In the interest of justice, executive judges may
recommend to the Supreme Court the inclusion of drug courts in the
regular raffle, and this Court has the discretion to approve the
recommendation, as the Resolution states:
WHEREFORE, Executive Judges and presiding judges of special courts
for drug cases shall hereby observe the following guidelines:
xxx xxx xxx
4. If, in the opinion of Executive Judges, the caseload of certain drug
courts allows their inclusion in the regular raffle without adversely
affecting their ability to expeditiously resolve the drug cases assigned
to them and their inclusion in the regular raffle becomes necessary
to decongest the caseload of other branches, the concerned
Executive Judges shall recommend to this Court the inclusion of drug
courts in their jurisdiction in the regular raffle. The concerned drug
courts shall remain exempt from the regular raffle until the
recommendation is approved. (Emphasis supplied.)
In conclusion, the two sets of guidelines are examples of this Court’s
foresight and prudence in the exercise of its rule-making power.
These guidelines were issued to prevent or address possible
scenarios that might hinder the proper administration of justice.
WHEREFORE, in view of the foregoing, the Petition for Prohibition is
DISMISSED for lack of merit.
SO ORDERED.
G.R. No. 191247 July 10, 2013
FRANCISCO L. ROSARIO, JR., Petitioner,
vs.
LELLANI DE GUZMAN, ARLEEN DE GUZMAN, PHILIP RYAN DE
GUZMAN, and ROSELLA DE GUZMANBAUTISTA, Respondents.
DECISION
MENDOZA, J.:
This petition for review on certiorari under Rule 45 of the Rules of
Court seeks to set aside the November 23, 20091 and the February
11, 20102 Orders of the Regional Trial Court, Branch 7, Manila (RTC),
in Civil Case No. 89-50138, entitled "Loreta A. Chong v. Sps. Pedro
and Rosita de Guzman," denying the Motion to Determine Attorney's
Fees filed by the petitioner.
The Facts
Sometime in August 1990, Spouses Pedro and Rosita de Guzman
(Spouses de Guzman) engaged the legal services of Atty. Francisco L.
Rosario, Jr. (petitioner) as defense counsel in the complaint filed
against them by one Loreta A. Chong (Chong) for annulment of
contract and recovery of possession with damages involving a parcel
of land in Parañaque City, covered by Transfer Certificate of Title
(TCT) No. 1292, with an area of 266 square meters, more or less.
Petitioner’s legal services commenced from the RTC and ended up in
this Court.3 Spouses de Guzman, represented by petitioner, won
their case at all levels. While the case was pending before this Court,
Spouses de Guzman died in a vehicular accident. Thereafter, they
were substituted by their children, namely: Rosella de Guzman-
Bautista, Lellani de Guzman, Arleen de Guzman, and Philip Ryan de
Guzman (respondents).4
On September 8, 2009, petitioner filed the Motion to Determine
Attorney’s Fees5 before the RTC. He alleged, among others, that he
had a verbal agreement with the deceased Spouses de Guzman that
he would get 25% of the market value of the subject land if the
complaint filed against them by Chong would be dismissed. Despite
the fact that he had successfully represented them, respondents
refused his written demand for payment of the contracted attorney’s
fees. Petitioner insisted that he was entitled to an amount equivalent
to 25% percent of the value of the subject land on the basis of
quantum meruit.
On November 23, 2009, the RTC rendered the assailed order denying
petitioner’s motion on the ground that it was filed out of time. The
RTC stated that the said motion was filed after the judgment
rendered in the subject case, as affirmed by this Court, had long
become final and executory on October 31, 2007. The RTC wrote that
considering that the motion was filed too late, it had already lost
jurisdiction over the case because a final decision could not be
amended or corrected except for clerical errors or mistakes. There
would be a variance of the judgment rendered if his claim for
attorney’s fees would still be included.
Petitioner filed a motion for reconsideration, but it was denied by the
RTC for lack of merit. Hence, this petition.
The Issues
This petition is anchored on the following grounds:
I believe that the amount of 25% of the market value of the lot is
THE TRIAL COURT COMMITTED A REVERSIBLE ERROR IN DENYING
THE MOTION TO DETERMINE ATTORNEY’S FEES ON THE GROUND
THAT IT LOST JURISDICTION OVER THE CASE SINCE THE JUDGMENT
IN THE CASE HAS BECOME FINAL AND EXECUTORY;
II
THE TRIAL COURT SERIOUSLY ERRED IN DECLARING THAT
PETITIONER’S CLAIM FOR ATTORNEY’S FEES WOULD RESULT IN A
VARIANCE OF THE JUDGMENT THAT HAS LONG BECOME FINAL AND
EXECUTORY;
III
THE TRIAL COURT ERRED IN NOT DECLARING THAT THE FINALITY OF
THE DECISION DID NOT BAR PETITIONER FROM FILING THE MOTION
TO RECOVER HIS ATTORNEY’S FEES.6
Petitioner claims that Spouses de Guzman engaged his legal services
and orally agreed to pay him 25% of the market value of the subject
land. He argues that a motion to recover attorney’s fees can be filed
and entertained by the court before and after the judgment becomes
final.
Moreover, his oral contract with the deceased spouses can be
considered a quasi-contract upon which an action can be
commenced within six (6) years, pursuant to Article 1145 of the Civil
Code. Because his motion was filed on September 8, 2009, he insists
that it was not yet barred by prescription.7
For their part, respondents counter that the motion was belatedly
filed and, as such, it could no longer be granted. In addition, the RTC
had already resolved the issue when it awarded the amount of
₱10,000.00 as attorney’s fees. Respondents further assert that the
law, specifically Article 2208 of the Civil Code, allows the recovery of
attorney’s fees under a written agreement. The alleged
understanding between their deceased parents and petitioner,
however, was never put in writing. They also aver that they did not
have any knowledge or information about the existence of an oral
contract, contrary to petitioner’s claims. At any rate, the respondents
excessive and unconscionable.8
The Court’s Ruling
Preliminarily, the Court notes that the petitioner filed this petition for
review on certiorari under Rule 45 of the Rules of Court because of
the denial of his motion to determine attorney’s fees by the RTC.
Apparently, the petitioner pursued the wrong remedy. Instead of a
petition for review under Rule 45, he should have filed a petition for
certiorari under Rule 65 because this case involves an error of
jurisdiction or grave abuse of discretion on the part of the trial court.
Moreover, petitioner violated the doctrine of hierarchy of courts
which prohibits direct resort to this Court unless the appropriate
remedy cannot be obtained in the lower tribunals.9 In this case,
petitioner should have first elevated the case to the Court of Appeals
(CA) which has concurrent jurisdiction, together with this Court, over
special civil actions for certiorari.10 Even so, this principle is not
absolute and admits of certain exceptions, such as in this case, when
it is demanded by the broader interest of justice.11
Indeed, on several occasions, this Court has allowed a petition to
prosper despite the utilization of an improper remedy with the
reasoning that the inflexibility or rigidity of the application of the
rules of procedure must give way to serve the higher ends of justice.
The strict application of procedural technicalities should not hinder
the speedy disposition of the case on the merits.12 Thus, this Court
deems it expedient to consider this petition as having been filed
under Rule 65.
With respect to the merits of the case, the Court finds in favor of
petitioner.
In order to resolve the issues in this case, it is necessary to discuss the
two concepts of attorney’s fees – ordinary and extraordinary. In its
ordinary sense, it is the reasonable compensation paid to a lawyer by
his client for legal services rendered. In its extraordinary concept, it
is awarded by the court to the successful litigant to be paid by the
losing party as indemnity for damages.13 Although both concepts are
similar in some respects, they differ from each other, as further
explained below:
The attorney’s fee which a court may, in proper cases, award to a
winning litigant is, strictly speaking, an item of damages. It differs
from that which a client pays his counsel for the latter’s professional
services. However, the two concepts have many things in common
that a treatment of the subject is necessary. The award that the court
may grant to a successful party by way of attorney’s fee is an
indemnity for damages sustained by him in prosecuting or defending,
through counsel, his cause in court. It may be decreed in favor of the
party, not his lawyer, in any of the instances authorized by law. On
the other hand, the attorney’s fee which a client pays his counsel
refers to the compensation for the latter’s services. The losing party
against whom damages by way of attorney’s fees may be assessed is
not bound by, nor is his liability dependent upon, the fee
arrangement of the prevailing party with his lawyer. The amount
stipulated in such fee arrangement may, however, be taken into
account by the court in fixing the amount of counsel fees as an
element of damages.
The fee as an item of damages belongs to the party litigant and not
to his lawyer. It forms part of his judgment recoveries against the
losing party. The client and his lawyer may, however, agree that
whatever attorney’s fee as an element of damages the court may
award shall pertain to the lawyer as his compensation or as part
thereof. In such a case, the court upon proper motion may require
the losing party to pay such fee directly to the lawyer of the prevailing
party.
The two concepts of attorney’s fees are similar in other respects.
They both require, as a prerequisite to their grant, the intervention
of or the rendition of professional services by a lawyer. As a client
may not be held liable for counsel fees in favor of his lawyer who
never rendered services, so too may a party be not held liable for
attorney’s fees as damages in favor of the winning party who
enforced his rights without the assistance of counsel. Moreover, both
fees are subject to judicial control and modification. And the rules
governing the determination of their reasonable amount are
applicable in one as in the other.14 [Emphasis and underscoring
supplied]
In the case at bench, the attorney’s fees being claimed by the
petitioner refers to the compensation for professional services
rendered, and not as indemnity for damages. He is demanding
payment from respondents for having successfully handled the civil
case filed by Chong against Spouses de Guzman. The award of
attorney’s fees by the RTC in the amount of ₱10,000.00 in favor of
Spouses de Guzman, which was subsequently affirmed by the CA and
this Court, is of no moment. The said award, made in its extraordinary
concept as indemnity for damages, forms part of the judgment
recoverable against the losing party and is to be paid directly to
Spouses de Guzman (substituted by respondents) and not to
petitioner. Thus, to grant petitioner’s motion to determine attorney’s
fees would not result in a double award of attorney’s fees. And,
contrary to the RTC ruling, there would be no amendment of a final
and executory decision or variance in judgment.
The Court now addresses two (2) important questions: (1) How can
attorney’s fees for professional services be recovered? (2) When can
an action for attorney’s fees for professional services be filed? The
case of Traders Royal Bank Employees Union-Independent v. NLRC15
is instructive:
As an adjunctive episode of the action for the recovery of bonus
differentials in NLRC-NCR Certified Case No. 0466, private
respondent’s present claim for attorney’s fees may be filed before
the NLRC even though or, better stated, especially after its earlier
decision had been reviewed and partially affirmed. It is well settled
that a claim for attorney’s fees may be asserted either in the very
action in which the services of a lawyer had been rendered or in a
separate action.
With respect to the first situation, the remedy for recovering
attorney’s fees as an incident of the main action may be availed of
only when something is due to the client. Attorney’s fees cannot be
determined until after the main litigation has been decided and the
subject of the recovery is at the disposition of the court. The issue
over attorney’s fees only arises when something has been recovered
from which the fee is to be paid.
While a claim for attorney’s fees may be filed before the judgment is
rendered, the determination as to the propriety of the fees or as to
the amount thereof will have to be held in abeyance until the main
case from which the lawyer’s claim for attorney’s fees may arise has
become final. Otherwise, the determination to be made by the courts
will be premature. Of course, a petition for attorney’s fees may be
filed before the judgment in favor of the client is satisfied or the
proceeds thereof delivered to the client.
It is apparent from the foregoing discussion that a lawyer has two
options as to when to file his claim for professional fees. Hence,
private respondent was well within his rights when he made his claim
and waited for the finality of the judgment for holiday pay
differential, instead of filing it ahead of the award’s complete
resolution. To declare that a lawyer may file a claim for fees in the
same action only before the judgment is reviewed by a higher
tribunal would deprive him of his aforestated options and render
ineffective the foregoing pronouncements of this Court. [Emphases
and underscoring supplied]
In this case, petitioner opted to file his claim as an incident in the
main action, which is permitted by the rules. As to the timeliness of
the filing, this Court holds that the questioned motion to determine
attorney’s fees was seasonably filed.
The records show that the August 8, 1994 RTC decision became final
and executory on October 31, 2007.1âwphi1 There is no dispute that
petitioner filed his Motion to Determine Attorney’s Fees on
September 8, 2009, which was only about one (1) year and eleven
(11) months from the finality of the RTC decision. Because petitioner
claims to have had an oral contract of attorney’s fees with the
deceased spouses, Article 1145 of the Civil Code16 allows him a
period of six (6) years within which to file an action to recover
professional fees for services rendered. Respondents never asserted
or provided any evidence that Spouses de Guzman refused
petitioner’s legal representation. For this reason, petitioner’s cause
of action began to run only from the time the respondents refused to
pay him his attorney’s fees, as similarly held in the case of Anido v.
Negado:17
In the case at bar, private respondent’s allegation in the complaint
that petitioners refused to sign the contract for legal services in
October 1978, and his filing of the complaint only on November 23,
1987 or more than nine years after his cause of action arising from
the breach of the oral contract between him and petitioners point to
the conclusion that the six-year prescriptive period within which to
file an action based on such oral contract under Article 1145 of the
Civil Code had already lapsed.
As a lawyer, private respondent should have known that he only had
six years from the time petitioners refused to sign the contract for
legal services and to acknowledge that they had engaged his services
for the settlement of their parents’ estate within which to file his
complaint for collection of legal fees for the services which he
rendered in their favor. [Emphases supplied]
At this juncture, having established that petitioner is entitled to
attorney’s fees and that he filed his claim well within the prescribed
period, the proper remedy is to remand the case to the RTC for the
determination of the correct amount of attorney’s fees. Such a
procedural route, however, would only contribute to the delay of the
final disposition of the controversy as any ruling by the trial court on
the matter would still be open for questioning before the CA and this
Court. In the interest of justice, this Court deems it prudent to
suspend the rules and simply resolve the matter at this level. The
Court has previously exercised its discretion in the same way in
National Power Corporation v. Heirs of Macabangkit Sangkay:18
In the event of a dispute as to the amount of fees between the
attorney and his client, and the intervention of the courts is sought,
the determination requires that there be evidence to prove the
amount of fees and the extent and value of the services rendered,
taking into account the facts determinative thereof. Ordinarily,
therefore, the determination of the attorney’s fees on quantum
meruit is remanded to the lower court for the purpose. However, it
will be just and equitable to now assess and fix the attorney’s fees of
both attorneys in order that the resolution of "a comparatively
simple controversy," as Justice Regalado put it in Traders Royal Bank
Employees Union-Independent v. NLRC, would not be needlessly
prolonged, by taking into due consideration the accepted guidelines
and so much of the pertinent data as are extant in the records.19
[Emphasis supplied]
With respect to petitioner’s entitlement to the claimed attorney’s
fees, it is the Court’s considered view that he is deserving of it and
that the amount should be based on quantum meruit.
Quantum meruit – literally meaning as much as he deserves – is used
as basis for determining an attorney’s professional fees in the
absence of an express agreement. The recovery of attorney’s fees on
the basis of quantum meruit is a device that prevents an
unscrupulous client from running away with the fruits of the legal
services of counsel without paying for it and also avoids unjust
enrichment on the part of the attorney himself. An attorney must
show that he is entitled to reasonable compensation for the effort in
pursuing the client’s cause, taking into account certain factors in
fixing the amount of legal fees.20
Rule 20.01 of the Code of Professional Responsibility lists the
guidelines for determining the proper amount of attorney fees, to
wit:
Rule 20.1 – A lawyer shall be guided by the following factors in
determining his fees:
a) The time spent and the extent of the services rendered or required;
b) The novelty and difficulty of the questions involved;
c) The importance of the subject matter;
d) The skill demanded;
e) The probability of losing other employment as a result of
acceptance of the proffered case;
f) The customary charges for similar services and the schedule of fees
of the IBP chapter to which he belongs;
g) The amount involved in the controversy and the benefits resulting
to the client from the service;
h) The contingency or certainty of compensation;
i) The character of the employment, whether occasional or
established; and
j) The professional standing of the lawyer.
Petitioner unquestionably rendered legal services for respondents’
deceased parents in the civil case for annulment of contract and
recovery of possession with damages. He successfully represented
Spouses de Guzman from the trial court level in 1990 up to this Court
in 2007, for a lengthy period of 17 years. After their tragic death in
2003, petitioner filed a notice of death and a motion for substitution
of parties with entry of appearance and motion to resolve the case
before this Court.21 As a consequence of his efforts, the respondents
were substituted in the place of their parents and were benefited by
the favorable outcome of the case.
As earlier mentioned, petitioner served as defense counsel for
deceased Spouses de Guzman and respondents for almost seventeen
(17) years. The Court is certain that it was not an easy task for
petitioner to defend his clients’ cause for such a long period of time,
considering the heavy and demanding legal workload of petitioner
which included the research and preparation of pleadings, the
gathering of documentary proof, the court appearances, and the
various legal work necessary to the defense of Spouses de Guzman.
It cannot be denied that petitioner devoted much time and energy in
handling the case for respondents. Given the considerable amount of
time spent, the diligent effort exerted by petitioner, and the quality
of work shown by him in ensuring the successful defense of his
clients, petitioner clearly deserves to be awarded reasonable
attorney’s fees for services rendered. Justice and equity dictate that
petitioner be paid his professional fee based on quantum meruit.
The fact that the practice of law is not a business and the attorney
plays a vital role in the administration of justice underscores the need
to secure him his honorarium lawfully earned as a means to preserve
the decorum and respectability of the legal profession. A lawyer is as
much entitled to judicial protection against injustice, imposition or
fraud on the part of his client as the client against abuse on the part
of his counsel. The duty of the court is not alone to see that a lawyer
acts in a proper and lawful manner; it is also its duty to see that a
lawyer is paid his just fees. With his capital consisting of his brains
and with his skill acquired at tremendous cost not only in money but
in expenditure of time and energy, he is entitled to the protection of
any judicial tribunal against any attempt on the part of his client to
escape payment of his just compensation. It would be ironic if after
putting forth the best in him to secure justice for his client he himself
would not get his due.22
The Court, however, is resistant in granting petitioner's prayer for an
award of 25% attorney's fees based on the value of the property
subject of litigation because petitioner failed to clearly substantiate
the details of his oral agreement with Spouses de Guzman. A fair and
reasonable amount of attorney's fees should be 15% of the market
value of the property.
WHEREFORE, the petition is GRANTED. Accordingly, the Court grants
the Motion to Determine Attorney's Fees filed by petitioner Atty.
Francisco L. Rosario, Jr. Based on quantum m
eruit, the amount of attorney's fees is at the rate of 15% of the
market value of the parcel of land, covered by Transfer Certificate of
Title No. 1292, at the time of payment.
SO ORDERED.
G.R. No. 159208 August 18, 2006
RENNIE DECLARADOR, Petitioner,
vs.
HON. SALVADOR S. GUBATON, Presiding Judge, Branch 14, Roxas
City, and FRANK BANSALES, Respondents.
DECISION
CALLEJO, SR., J.:
This is a Petition for Certiorari seeking to nullify the portion of the
Decision 1 of the Regional Trial Court (RTC), Roxas City, Branch 14, in
Criminal Case No. C-1419-10-2002, suspending the sentence of
respondent Frank Bansales and ordering his commitment to the
Regional Rehabilitation Center for Youth at Concordia, Nueva
Valencia, Guimaras.
Frank Bansales was born on June 3, 1985. He was a student at the
Cabug-Cabug National High School in President Roxas, Capiz. At
around 9:45 a.m. on July 25, 2002, Yvonne Declarador was stabbed
to death. After conducting the autopsy on the cadaver, Rural Health
Physician Pilar Posadas prepared a Post-Mortem Certificate
indicating that the victim sustained 15 stab wounds on different parts
of the body. 2
On October 10, 2002, an Information charging Frank Bansales with
murder was filed by the Assistant Provincial Prosecutor with the
Family Court. The accusatory portion reads:
That on or about 9:45 o’clock in the morning of July 25, 2002, inside
a classroom in Cabug-Cabug National High School in President Roxas,
Capiz, Philippines, and within the jurisdiction of this Honorable Court,
the accused armed with a knife and with intent to kill, did then and
there, willfully, unlawfully and feloniously attack, assault and stab
with the said knife [his] teacher, one YVONNE DECLARADOR, thereby
hitting and inflicting upon the latter multiple fatal stab wounds in the
different parts of the body which caused the immediate death of the
said Yvonne Declarador.
The crime was committed with the attendance of the qualifying
aggravating circumstances of evident premeditation and abuse of
superior strength considering that the attack was made by the
accused using a long knife which the latter carried along with him
from his house to the school against his lady teacher who was
unarmed and defenseless at that time and by inflicting upon the
latter about fifteen (15) fatal knife wounds resulting to her death. 3
In view of the plea of the accused and the evidence presented, the
RTC rendered judgment on May 20, 2003 finding Bansales guilty of
murder. However, the court suspended the sentence of the accused
and ordered his commitment to the Regional Rehabilitation for Youth
at Concordia, Nueva Valencia, Guimaras. The dispositive portion of
the decision reads:
In view of the Plea of Guilty by the accused and the evidence
presented by the prosecution, the court finds CICL Frank Bansales
GUILTY beyond reasonable doubt of the crime of Murder being
charged. Being a minor, 17 years of age at the time of the commission
of the offense charged, he is entitled to a special mitigating
circumstance of minority, and is sentenced to suffer an
indeterminate imprisonment of twelve (12) years and one (1) day to
seventeen (17) years and four (4) month of reclusion temporal and
to pay the heirs of Yvonne Declarador, a civil indemnity of Seventy-
Five Thousand Pesos (P75,000.00), Fifty Thousand Pesos
(P50,000.00) for moral damages, Forty-Three Thousand Pesos
(P43,000.00) for funeral expenses, attorney’s fee of One Hundred
Thousand Pesos (P100,000.00) and unearned income of One Million
Three Hundred Seventy Thousand Pesos and Seventy Centavos
(P1,370,000.70).
The parents (father and mother of juvenile Frank Bansales) and his
teacher-in-charge at the Cabug-Cabug National High School of
President Roxas, Capiz, are jointly subsidiarily liable in case of
insolvency, as the crime was established to have been committed
inside the classroom of Cabug-Cabug National High School and during
school hours.
Pursuant to the provision of P.D. 603, as amended, the sentence is
suspended and the Child in conflict with the law (CICL), Frank
Bansales is ordered committed to the Regional Rehabilitation Center
for Youth at Concordia, Nueva Valencia, Guimaras.
Furnish copies of this decision the Office of the Provincial Prosecutor,
the Private Prosecutors, the DSWD Capiz Provincial Office, Roxas City,
the Regional Rehabilitation for Youth, Concordia, Guimaras, the
accused and his counsel, Atty. Ramcez John Honrado.
SO ORDERED. 4
On June 2, 2003, the RTC set a preliminary conference for 10:00 a.m.
of June 10, 2003 with the Public Prosecutor, the Social Welfare
Officer of the court, and the Officer-in-Charge of the Regional
Rehabilitation Center for Youth, considering that the accused would
turn 18 on June 3, 2003. 5
Rennie Declarador, the surviving spouse of the deceased, filed a
petition for certiorari under Rule 65 of the Rules of Court assailing
that portion of the decision of the trial court’s decision suspending
the sentence of the accused and committing him to the rehabilitation
center.
Petitioner claimed that under Article 192 of Presidential Decree (P.D.)
No. 603, as well as A.M. No. 02-1-18-SC (otherwise known as the Rule
on Juveniles in Conflict with the Law), the benefit of a suspended
sentence does not apply to a juvenile who is convicted of an offense
punishable by death, 6 reclusion perpetua or life imprisonment.
Citing the ruling of this Court in People v. Ondo, 7 petitioner avers
that since Bansales was charged with murder punishable by reclusion
perpetua to death, he is disqualified from availing the benefits of a
suspended sentence.
In his Comment, Bansales avers that petitioner has no standing to file
the petition, considering that the offense charged is a public crime
brought in the name of the People of the Philippines; only the Office
of the Solicitor General (OSG) is authorized to file a petition in court
assailing the order of the RTC which suspended the service of his
sentence. He further avers that Section 32 of A.M. No. 02-1-18-SC
entitles the accused to an automatic suspension of sentence and
allows the court to commit the juvenile to the youth center; hence,
the court did not abuse its discretion in suspending the sentence of
the accused.
In reply, petitioner maintains that he has sufficient personality to file
the petition.
The OSG, for its part, posits that respondent’s sentence cannot be
suspended since he was charged with a capital offense punishable by
reclusion perpetua to death. It insists that the entitlement of a
juvenile to a suspended sentence does not depend upon the
sentence actually imposed by the trial court but upon the imposable
penalty for the crime charged as provided for by law.
The issues for resolution are the following: (1) whether petitioner has
standing to file the petition; (2) whether petitioner violated the
doctrine of hierarchy of courts in filing his petition with this Court;
and (3) whether respondent court committed grave abuse of
discretion amounting to excess or lack of jurisdiction in ordering the
suspension of the sentence of respondent Bansales and his
commitment to the Regional Rehabilitation Center for the Youth.
The petition is granted.
On the first issue, we rule for the petitioner. Being the surviving
spouse of the deceased and the offended party, he has sufficient
personality to file the instant special civil action for certiorari. 8 This
is in line with the underlying spirit of the liberal construction of the
Rules of Court in order to promote their object. 9 Moreover, the OSG
has filed its comment on the petition and has joined the petitioner in
his plea for the nullification of the assailed portion of the RTC
decision.
On the second issue, the rule is that a petition for review on certiorari
which seeks to nullify an order of the RTC should be filed in the Court
of Appeals in aid of its appellate jurisdiction. 10 A direct invocation of
the original jurisdiction of the Court to issue writs of certiorari may
be allowed only when there are special and important reasons
therefor clearly and specifically set out in the petition. 11 This is an
established policy necessary to prevent inordinate demands upon
this Court’s time and attention which are better devoted to those
matters within its exclusive jurisdiction, and to prevent further
overcrowding of the Court’s docket. 12
However, in Fortich v. Corona, 13 the Court held that considering the
nature and importance of the issues raised and in the interest of
speedy justice, and to avoid future litigations, the Court may take
cognizance of a petition for certiorari directly filed before it. 14
Moreover, this Court has suspended its own rules and excepted a
particular case from their operation whenever the interests of justice
so require.
In this case, we resolve to take cognizance of the case, involving as it
does a juvenile and the application of the Rule on Juveniles in Conflict
with the Law.
The charge against respondent Bansales was murder with the
qualifying circumstance of either evident premeditation or abuse of
superior strength. Under Article 248 of the Revised Penal Code, as
amended by Republic Act (Rep. Act) No. 7659, the imposable penalty
for the crime is reclusion perpetua to death. The trial court found him
guilty of murder.
Article 192 of P.D. No. 603, as amended, provides:
Art. 192. Suspension of Sentence and Commitment of Youthful
Offender. – If after hearing the evidence in the proper proceedings,
the court should find that the youthful offender has committed the
acts charged against him, the court, shall determine the imposable
penalty, including any civil liability chargeable against him. However,
instead of pronouncing judgment of conviction, the court, upon
application of the youthful offender and if it finds that the best
interest of the public, as well as that of the offender will be served
thereby, may suspend all further proceedings and commit such minor
to the custody or care of the Department of Social Welfare and
Development or to any training institution operated by the
government or any other responsible person until he shall have
reached twenty-one years of age, or for a shorter period as the court
may deem proper, after considering the reports and
recommendations of the Department of Social Welfare and
Development or the government training institution or responsible
person under whose care he has been committed.
Upon receipt of the application of the youthful offender for
suspension of his sentence, the court may require the Department of
Social Welfare and Development to prepare and submit to the court
a social case study report over the offender and his family.
The youthful offender shall be subject to visitation and supervision
by the representative of the Department of Social Welfare and
Development or government training institution as the court may
designate subject to such conditions as it may prescribe.
The benefits of this article shall not apply to a youthful offender who
has once enjoyed suspension of sentence under its provisions or to
one who is convicted for an offense punishable by death or life
imprisonment or to one who is convicted for an offense by the
Military Tribunals.
The law was reproduced in A.M. No. 02-1-18-SC where, except for
those under paragraph 3, Section 32 of the law, the sentence of the
accused is automatically suspended:
Sec. 32. Automatic Suspension of Sentence and Disposition Orders. –
The sentence shall be suspended without need of application by the
juvenile in conflict with the law. The court shall set the case for
disposition conference within fifteen (15) days from the
promulgation of sentence which shall be attended by the social
worker of the Family Court, the juvenile, and his parents or guardian
ad litem. It shall proceed to issue any or a combination of the
following disposition measures best suited to the rehabilitation and
welfare of the juvenile: care, guidance, and supervision orders; Drug
and alcohol treatment; Participation in group counseling and similar
activities; Commitment to the Youth Rehabilitation Center of the
DSWD or other centers for juvenile in conflict with the law authorized
by the Secretary of DSWD.
The Social Services and Counseling Division (SSCD) of the DSWD shall
monitor the compliance by the juvenile in conflict with the law with
the disposition measure and shall submit regularly to the Family
Court a status and progress report on the matter. The Family Court
may set a conference for the evaluation of such report in the
presence, if practicable, of the juvenile, his parents or guardian, and
other persons whose presence may be deemed necessary.
The benefits of suspended sentence shall not apply to a juvenile in
conflict with the law who has once enjoyed suspension of sentence,
or to one who is convicted of an offense punishable by death,
reclusion perpetua or life imprisonment, or when at the time of
promulgation of judgment the juvenile is already eighteen (18) years
of age or over.
Thus, it is clear that a person who is convicted of an offense
punishable by death, life imprisonment, or reclusion perpetua is
disqualified from availing the benefits of a suspended sentence.
"Punishable" is defined as "deserving of, or capable, or liable to
punishment; liable to be punished; may be punished; liable to
punishment." 15 The word "punishable" does not mean "must be
punished," but "liable to be punished" as specified. 16 In U.S. v.
Villalon, 17 the Court defined punishable as "deserving of, or liable
for, punishment." Thus, the term refers to the possible, not to the
actual sentence. It is concerned with the penalty which may be, and
not which is imposed.
The disqualification is based on the nature of the crime charged and
the imposable penalty therefor, and not on the penalty imposed by
the court after trial. It is not the actual penalty imposed but the
possible one which determines the disqualification of a juvenile. 18
Despite the disqualification of Bansales, respondent Judge,
nevertheless, ordered the suspension of the sentence meted against
him. By this act, respondent Judge committed grave abuse of
discretion amounting to excess of jurisdiction.
We note that, in the meantime, Rep. Act No. 9344 took effect on May
20, 2006. Section 38 of the law reads:
SEC. 38. Automatic Suspension of Sentence. – Once the child who is
under eighteen (18) years of age at the time of the commission of the
offense is found guilty of the offense charged, the court shall
determine and ascertain any civil liability which may have resulted
from the offense committed. However, instead of pronouncing the
judgment of conviction, the court shall place the child in conflict with
the law under suspended sentence, without need of application:
Provided, however, That suspension of sentence shall still be applied
even if the juvenile is already eighteen (18) years of age or more at
the time of the pronouncement of his/her guilt.
Upon suspension of sentence and after considering the various
circumstances of the child, the court shall impose the appropriate
disposition measures as provided in the Supreme Court on Juveniles
in Conflict with the Law.
The law merely amended Article 192 of P.D. No. 603, as amended by
A.M. No. 02-1-18-SC, in that the suspension of sentence shall be
enjoyed by the juvenile even if he is already 18 years of age or more
at the time of the pronouncement of his/her guilt. The other
disqualifications in Article 192 of P.D. No. 603, as amended, and
Section 32 of A.M. No. 02-1-18-SC have not been deleted from
Section 38 of Rep. Act No. 9344. Evidently, the intention of Congress
was to maintain the other disqualifications as provided in Article 192
of P.D. No. 603, as amended, and Section 32 of A.M. No. 02-1-18-SC.
Hence, juveniles who have been convicted of a crime the imposable
penalty for which is reclusion perpetua, life imprisonment or
reclusion perpetua to death or death, are disqualified from having
their sentences suspended.
Case law has it that statutes in pari materia should be read and
construed together because enactments of the same legislature on
the same subject are supposed to form part of one uniform system;
later statutes are supplementary or complimentary to the earlier
enactments and in the passage of its acts the legislature is supposed
to have in mind the existing legislations on the subject and to have
enacted the new act with reference thereto. 19 Statutes in pari
materia should be construed together to attain the purpose of an
expressed national policy. 20
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The
Order of the respondent Judge suspending the sentence of
respondent Frank Bansales is NULLIFIED.
SO ORDERED.
G.R. No. 174385 February 20, 2013
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
HON. RAMON S. CAGUIOA, Presiding Judge, Branch 74, Regional
Trial Court, Third Judicial Region, Olongapo City, META TRANS
TRADING INTERNATIONAL CORPORATION, and HUNDRED YOUNG
SUBIC INTERNATIONAL, INC., Respondents.
DECISION
BRION, J.:
We resolve in this petition for certiorari and prohibition 1 (the
present petition) the challenge to the August 11, 2005 and July 5,
2006 orders2 of respondent Judge Ramon S. Caguioa, Regional Trial
Court (RTC) of Olongapo City, Branch 74, in Civil Case No. 102-0-05.
The August 11, 2005 order granted the motion to intervene filed by
private respondents Metatrans Trading International Corporation
and Hundred Young Subic International, Inc., while the July 5, 2006
order denied the motion for reconsideration and the motion to
suspend the proceedings filed by the petitioner Republic of the
Philippines (Republic).
The Factual Antecedents
On March 14, 2005,3 Indigo Distribution Corporation and thirteen
other petitioners (collectively referred to as lower court petitioners)
filed before the respondent judge a petition for declaratory relief
with prayer for temporary restraining order (TRO) and preliminary
mandatory injunction4 against the Honorable Secretary of Finance,
et al. The petition sought to nullify the implementation of Section 6
of Republic Act (R.A.) No. 9334, otherwise known as "AN ACT
INCREASING THE EXCISE TAX RATES IMPOSED ON ALCOHOL AND
TOBACCO PRODUCTS, AMENDING FOR THE PURPOSE SECTIONS 131,
141, 142, 143, 144, 145 AND 288 OF THE NATIONAL INTERNAL
REVENUE CODE OF 1997, AS AMENDED," as unconstitutional. Section
6 of R.A. No. 9334, in part, reads:
SEC. 6. Section 131 of the National Internal Revenue Code of 1997, as
amended, is hereby amended to read as follows:
SEC. 131. Payment of Excise Taxes on Imported Articles. –
(A) Persons Liable. – x x x.
xxxx
The provision of any special or general law to the contrary
notwithstanding, the importation of cigars and cigarettes, distilled
spirits, fermented liquors and wines into the Philippines, even if
destined for tax and duty-free shops, shall be subject to all applicable
taxes, duties, charges, including excise taxes due thereon. This shall
apply to cigars and cigarettes, distilled spirits, fermented liquors and
wines brought directly into the duly chartered or legislated freeports
of the Subic Special Economic and Freeport Zone, created under
Republic Act No. 7227; the Cagayan Special Economic Zone and
Freeport, created under Republic Act No. 7922; and the Zamboanga
City Special Economic Zone, created under Republic Act No. 7903,
and such other freeports as may hereafter be established or created
by law: Provided, further, That importations of cigars and cigarettes,
distilled spirits, fermented liquors and wines made directly by a
government- owned and operated duty-free shop, like the Duty-Free
Philippines (DFP), shall be exempted from all applicable duties only[.]
[emphasis ours; italics supplied]
The lower court petitioners are importers and traders duly licensed
to operate inside the Subic Special Economic and Freeport Zone
(SSEFZ).
By way of background, Congress enacted, in 1992, R.A. No. 7227,
otherwise known as "The BASES CONVERSION AND DEVELOPMENT
ACT OF 1992," which provided, among others, for the creation of the
SSEFZ, as well as the Subic Bay Metropolitan Authority (SBMA).
Pursuant to this law, the SBMA granted the lower court petitioners
Certificates of Registration and Tax Exemption. The certificates
allowed them to engage in the business of import and export of
general merchandise (including alcohol and tobacco products) and
uniformly granted them tax exemptions for these importations.
On January 1, 2005, Congress passed R.A. No. 9334. Based on Section
6 of R.A. No. 9334, the SBMA issued a Memorandum on February 7,
2005 directing its various departments to require importers in the
SSEFZ to pay the applicable duties and taxes on their importations of
tobacco and alcohol products before these importations are cleared
and released from the freeport. The memorandum prompted the
lower court petitioners to bring before the RTC their petition for
declaratory relief (Civil Case No. 102-0- 05). The petition included a
prayer for the issuance of a writ of preliminary injunction and/or a
TRO to enjoin the Republic (acting through the SBMA) from enforcing
the challenged memorandum.
On May 4, 2005,5 the respondent judge granted the lower court
petitioners’ application for preliminary injunction despite the
Republic’s opposition, and on May 11, 2005, he issued the
preliminary injunction.
The Republic filed before this Court a petition for certiorari and
prohibition – docketed in this Court as G.R. No. 168584 – to annul the
respondent judge’s order and the writ issued pursuant to this order.
The petition asked for the issuance of a TRO and/or a writ of
preliminary injunction. By motion dated July 21, 2005 filed before the
lower court, the Republic asked the respondent judge to suspend the
proceedings pending the resolution of G.R. No. 168584.
On August 5, 2005, the private respondents (in the present petition
now before us) filed before the respondent judge motions for leave
to intervene and to admit complaints-in-intervention. They also
asked in these motions that the respondent judge extend to them the
effects and benefits of his May 4, 2005 order, in the lower court
petitioners’ favor, and the subsequently issued May 11, 2005 writ of
preliminary mandatory injunction.
Without acting on the Republic’s motion to suspend the proceedings,
the respondent judge granted on August 11, 2005 the private
respondents’ motions and complaints-in-intervention. The
respondent judge found the private respondents to be similarly
situated as the lower court petitioners; they stood, too, to be
adversely affected by the implementation of R.A. No. 9334.
The Republic moved to reconsider6 the respondent judge’s August
11, 2005 order, arguing that it had been denied due process because
it never received copies of the private respondents’ motions and
complaints-in-intervention.
On July 5, 2006, the respondent judge denied the Republic’s motion
for reconsideration and the previously filed motion to suspend the
proceedings. The respondent judge held that all of the parties in the
case had been duly notified per the records. To justify the denial of
the motion to suspend the proceedings, the respondent judge
pointed to the absence of any restraining order in G.R. No. 168584.
The Republic responded to the respondent judge’s actions by filing
the present petition.
The Petition
The present petition charges that the respondent judge acted with
manifest partiality and with grave abuse of discretion when he issued
his August 11, 2005 and July 5, 2006 orders. In particular, the
Republic contends that the respondent judge violated its right to due
process when he peremptorily allowed the private respondents’
motions and complaints-in-intervention and proceeded with their
hearing ex parte despite the absence of any prior notice to it. The
Republic maintains that it never received any notice of hearing, nor
any copy of the questioned motions and complaints-in-
intervention.7
Further, the Republic posits that the respondent judge abused his
discretion when he extended to the private respondents the benefits
of the preliminary injunction earlier issued to the lower court
petitioners under the same ₱1,000,000.00 bond the lower court
petitioners posted. The Republic labels this action as a violation of
Section 4, Rule 58 of the Rules of Court, claiming at the same time
that the bond is manifestly disproportionate to the resulting damage
the Republic stood to incur considering the number of the original
and the additional lower court petitioners.8
Finally, in support of its prayer for the issuance of a TRO and/or a writ
of preliminary injunction, the Republic stresses that the assailed
orders continue to cause it multi-million tax losses. It justifies its
prayer for the respondent judge’s inhibition by pointing to the latter’s
act of continuously allowing parties to intervene despite the absence
of notice and to the inclusion of non-parties to the original case.
During the pendency of the present petition, the Court en banc
partially granted the Republic’s petition in G.R. No. 168584. By a
Decision9 dated October 15, 2007, this Court set aside and nullified
the respondent judge’s order of May 4, 2005 and the subsequent
May 11, 2005 writ of preliminary injunction. On January 15, 2008, the
Court denied with finality the lower court petitioners’ motion for
reconsideration.10
The Respondent’s Position
In their defense, the private respondents point to the procedural
defects in the petition, specifically: first, the petition was filed out of
time, arguing that the Republic only had 53 remaining days to file the
petition from notice of the denial of its motion for reconsideration,
maintaining that the 60-day period within which to file the petition is
counted from the notice of the denial of the August 11, 2005 order;
second, the petition did not comply with the rules on proof of filing
and service; third, the Republic failed to properly serve their counsel
of record a copy of the petition; and fourth, the Republic did not
observe the hierarchy of courts in filing the instant petition.11
The private respondents further contend that the respondent judge
correctly allowed their complaints-in-intervention as the matter of
intervention is addressed to the courts’ discretion; as noted in the
assailed orders, the records show that the notice of hearing was
addressed to all of the parties in the original case.12
Finally, on the Republic’s prayer for prohibition, the private
respondents maintain that prohibition is improper since this Court,
in G.R. No. 168584, denied the Republic’s prayer for a writ of
prohibition, noting that the respondent judge had been suspended,
pending resolution of this petition.13
The Court’s Ruling
We resolve to PARTLY GRANT the petition.
Relaxation of procedural rules for compelling reasons
We disagree with the private respondents’ procedural objections.
First, we find that the present petition was filed within the
reglementary period. Contrary to the private respondents’ position,
the 60- day period within which to file the petition for certiorari is
counted from the Republic’s receipt of the July 5, 2006 order denying
the latter’s motion for reconsideration. Section 4, Rule 65 of the Rules
of Court is clear on this point – "In case a motion for reconsideration
or new trial is timely filed, whether such motion is required or not,
the sixty (60) day period shall be counted from notice of the denial of
said motion."14 We find too that the present petition complied with
the rules on proof of filing and service of the petition. Attached to the
petition – in compliance with Sections 12 and 13, Rule 13 of the Rules
of Court – are the registry receipts and the affidavit of the person
who filed and served the petition by registered mail.
Second, while the principle of hierarchy of courts does indeed require
that recourses should be made to the lower courts before they are
made to the higher courts,15 this principle is not an absolute rule and
admits of exceptions under well-defined circumstances. In several
cases, we have allowed direct invocation of this Court’s original
jurisdiction to issue writs of certiorari on the ground of special and
important reasons clearly stated in the petition;16 when dictated by
public welfare and the advancement of public policy; when
demanded by the broader interest of justice; when the challenged
orders were patent nullities;17 or when analogous exceptional and
compelling circumstances called for and justified our immediate and
direct handling of the case.18
The Republic claims that the respondent judge violated and
continues to violate its right to due process by allowing the private
respondents and several others to intervene in the case sans notice
to the Republic; by extending to them the benefit of the original
injunction without the requisite injunction bond applicable to them
as separate injunction applicants; and by continuing to suspend the
Republic’s right to collect excise taxes from the private respondents
and from the lower court petitioners, thus adversely affecting the
government’s revenues. To our mind, the demonstrated extent of
the respondent judge’s actions and their effects constitute special
and compelling circumstances calling for our direct and immediate
attention.
Lastly, under our rules of procedure,19 service of the petition on a
party, when that party is represented by a counsel of record, is a
patent nullity and is not binding upon the party wrongfully served.20
This rule, however, is a procedural standard that may admit of
exceptions when faced with compelling reasons of substantive justice
manifest in the petition and in the surrounding circumstances of the
case.21 Procedural rules can bow to substantive considerations
through a liberal construction aimed at promoting their objective of
securing a just, speedy and inexpensive disposition of every action
and proceeding.22
The Republic has consistently and repeatedly maintained that it
never received a copy of the motions and complaints-in-intervention,
as evidenced by the certification of the Docket Division of the Office
of the Solicitor General (OSG); it learned of the private respondents’
presence in this case only after it received copies of the assailed
orders, and it even had to inquire from the lower court for the private
respondents’ addresses. Although their counsels did not formally
receive any copy of the petition, the private respondents themselves
admitted that they received their copy of the present petition. The
records show that the Republic subsequently complied with the rules
on service when, after the private respondents’ comment, the
Republic served copies of its reply and memorandum to the
respondents’ counsel of record.
Under these circumstances, we are satisfied with the Republic’s
explanation on why it failed to initially comply with the rule on service
of the present petition; its subsequent compliance with the rule after
being informed of the presence of counsels of record sufficiently
warrants the rule’s relaxed application.23 The lack of a proper service
– unlike the situation when the Republic was simply confronted with
already-admitted complaints-in-intervention – did not result in any
prejudice; the private respondents themselves were actually served
with, and duly received, their copies of the present petition, allowing
them to comment and to be heard on the petition.
The Republic was denied due process; the respondent judge issued
the assailed orders with grave abuse of discretion
Due process of law is a constitutionally guaranteed right reserved to
every litigant.1âwphi1 Even the Republic as a litigant is entitled to
this constitutional right, in the same manner and to the same extent
that this right is guaranteed to private litigants. The essence of due
process is the opportunity to be heard, logically preconditioned on
prior notice, before judgment is rendered.24
A motion for intervention, like any other motion, has to comply with
the mandatory requirements of notice and hearing, as well as proof
of its service,25 save only for those that the courts can act upon
without prejudice to the rights of the other parties.26 A motion
which fails to comply with these requirements is a worthless piece of
paper that cannot and should not be acted upon.27 The reason for
this is plain: a movant asks the court to take a specific course of
action, often contrary to the interest of the adverse party and which
the latter must then be given the right and opportunity to oppose.28
The notice of hearing to the adverse party thus directly services the
required due process as it affords the adverse party the opportunity
to properly state his agreement or opposition to the action that the
movant asks for.29 Consequently, our procedural rules provide that
a motion that does not afford the adverse party this kind of
opportunity should simply be disregarded.30
The notice requirement is even more mandatory when the movant
asks for the issuance of a preliminary injunction and/or a TRO. Under
Section 5, Rule 58 of the Rules of Court, no preliminary injunction
shall be granted without a hearing and without prior notice to the
party sought to be enjoined. The prior notice under this requirement
is as important as the hearing, as no hearing can meaningfully take
place, with both parties present or represented, unless a prior notice
of the hearing is given.
Additionally, in the same way that an original complaint must be
served on the defendant, a copy of the complaint-in-intervention
must be served on the adverse party with the requisite proof of
service duly filed prior to any valid court action. Absent these or any
reason duly explained and accepted excusing strict compliance, the
court is without authority to act on such complaint; any action taken
without the required service contravenes the law and the rules, and
violates the adverse party’s basic and constitutional right to due
process.
In the present case, records show that the OSG had never received –
contrary to the private respondents’ claim – a copy of the motions
and complaints-in-intervention.31 The Republic duly and fully
manifested the irregularity before the respondent judge.32 Thus, the
mere statement in the assailed orders that the parties were duly
notified is insufficient on the face of the appropriate manifestation
made and the supporting proof that the Republic submitted. In these
lights, the motions and complaints-in-intervention cannot but be
mere scraps of paper that the respondent judge had no reason to
consider; in admitting them despite the absence of prior notice, the
respondent judge denied the Republic of its right to due process.
While we may agree with the private respondents’ claim that the
matter of intervention is addressed to the sound discretion of the
court,33 what should not be forgotten is the requirement that the
exercise of discretion must in the first place be "sound." In other
words, the basic precepts of fair play and the protection of all
interests involved must always be considered in the exercise of
discretion. Under the circumstances of the present case, these
considerations demand that the original parties to the action, which
include the Republic, must have been properly informed to give them
a chance to protect their interests. These interests include, among
others, the protection of the Republic’s revenue-generating authority
that should have been insulated against damage through the filing of
a proper bond. Thus, even from this narrow view that does not yet
consider the element of fair play, the private respondents’ case must
fail; judicial discretion cannot override a party litigant’s right to due
process.
All told, the respondent judge acted with grave abuse of discretion
warranting the issuance of the corrective writ of certiorari. Grave
abuse of discretion arises when a lower court or tribunal violates the
Constitution or grossly disregards the law or existing
jurisprudence.34 The term refers to such capricious and whimsical
exercise of judgment equivalent to lack of jurisdiction, as when the
act amounts to an evasion of a positive duty or to a virtual refusal to
perform a duty enjoined by law, or to act at all in contemplation of
law .35 The respondent judge so acted so that the orders he issued
should be declared void and of no effect.
Petition for prohibition and prayer for inhibition are denied for
having been mooted by subsequent events
On November 9, 2006, the Republic filed an administrative case
against the respondent judge for gross ignorance of the law, manifest
partiality and conduct prejudicial to the best interest of the service.
The case, docketed as A.M. No. RTJ-07-2063, is likewise related to
Civil Case No. 102-0-05 that underlie the present petition. By a
decision dated June 26, 2009, and while this case was still pending,
this Court found the respondent judge guilty of gross ignorance of
the law and conduct prejudicial to the best interest of the service.
The Court accordingly dismissed the respondent judge from the
service.
In light of these supervening events, the Court sees no reason to
resolve the other matters raised in this petition for being moot.
WHEREFORE, under these premises, we PARTIALLY GRANT the
petition. We GRANT the writ of certiorari and accordingly SET ASIDE
the orders dated August 11, 2005 and July 5, 2006 of respondent
Judge Ramon S. Caguioa in Civil Case No. 102-0-05 for being NULL and
VOID. We DISMISS the prayer for writ of prohibition on the ground of
mootness. Costs against Metatrans Trading International
Corporation and Hundred Young Subic International, Inc.
SO ORDERED.
174385
G.R. No. 205728 January 21, 2015
THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV.
BISHOP VICENTE M. NAVARRA and THE BISHOP HIMSELF IN HIS
PERSONAL CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF
BACOLOD CITY, ATTY. MAVIL V. MAJARUCON, Respondents.
DECISION
LEONEN, J.:
"The Philippines is a democratic and republican State. Sovereignty
resides in the people and all government authority emanates from
them." – Article II, Section 1, Constitution
All governmental authority emanates from our people. No
unreasonable restrictions of the fundamental and preferred right to
expression of the electorate during political contests no matter how
seemingly benign will be tolerated.
This case defines the extent that our people may shape the debates
during elections. It is significant and of first impression. We are asked
to decide whether the Commission on Elections (COMELEC) has the
competence to limit expressions made by the citizens — who are not
candidates — during elections.
Before us is a special civil action for certiorari and prohibition with
application for preliminary injunction and temporary restraining
order1 under Rule 65 of the Rules of Court seeking to nullify
COMELEC’s Notice to Remove Campaign Materials2 dated February
22, 2013 and letter3 issued on February 27, 2013.
The facts are not disputed.
On February 21, 2013, petitioners posted two (2) tarpaulins within a
private compound housing the San Sebastian Cathedral of Bacolod.
Each tarpaulin was approximately six feet (6') by ten feet (10') in size.
They were posted on the front walls of the cathedral within public
view. The first tarpaulin contains the message "IBASURA RH Law"
referring to the Reproductive Health Law of 2012 or Republic Act No.
10354. The second tarpaulin is the subject of the present case.4 This
tarpaulin contains the heading "Conscience Vote" and lists
candidates as either "(Anti-RH) Team Buhay" with a check mark, or
"(Pro-RH) Team Patay" with an "X" mark.5 The electoral candidates
were classified according to their vote on the adoption of Republic
Act No. 10354, otherwise known as the RH Law.6 Those who voted
for the passing of the law were classified by petitioners as comprising
"Team Patay," while those who voted against it form "Team Buhay":7
TEAM BUHAY
TEAM PATAY
Estrada, JV
Angara, Juan Edgardo
Honasan, Gregorio
Casiño, Teddy
Magsaysay, Mitos
Cayetano, Alan Peter
Pimentel, Koko
Enrile, Jackie
Trillanes, Antonio
Escudero, Francis
Villar, Cynthia
Hontiveros, Risa
Party List Buhay
Legarda, Loren
Party List Ang Pamilya
Party List Gabriela
Party List Akbayan
Party List Bayan Muna
Party List Anak Pawis
During oral arguments, respondents conceded that the tarpaulin was
neither sponsored nor paid for by any candidate. Petitioners also
conceded that the tarpaulin contains names ofcandidates for the
2013 elections, but not of politicians who helped in the passage of
the RH Law but were not candidates for that election.
On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her
capacity as Election Officer of Bacolod City, issued a Notice to
Remove Campaign Materials8 addressed to petitioner Most Rev.
Bishop Vicente M. Navarra. The election officer ordered the
tarpaulin’s removal within three (3) days from receipt for being
oversized. COMELEC Resolution No. 9615 provides for the size
requirement of two feet (2’) by three feet (3’).9
On February 25, 2013, petitioners replied10 requesting, among
others, that (1) petitioner Bishop be given a definite ruling by
COMELEC Law Department regarding the tarpaulin; and (2) pending
this opinion and the availment of legal remedies, the tarpaulin be
allowed to remain.11
On February 27, 2013, COMELEC Law Department issued a letter12
ordering the immediate removal of the tarpaulin; otherwise, it will be
constrained to file an election offense against petitioners. The letter
of COMELEC Law Department was silenton the remedies available to
petitioners. The letter provides as follows:
Dear Bishop Navarra:
It has reached this Office that our Election Officer for this City, Atty.
Mavil Majarucon, had already given you notice on February 22, 2013
as regards the election propaganda material posted on the church
vicinity promoting for or against the candidates and party-list groups
with the following names and messages, particularly described as
follows:
Material size : six feet (6’) by ten feet (10’)
Description : FULL COLOR TARPAULIN
Image of : SEE ATTACHED PICTURES
Message : CONSCIENCE VOTE (ANTI RH) TEAM
BUHAY; (PRO RH) TEAM PATAY
Location : POSTED ON THE CHURCH VICINITY
OF THE DIOCESE OF BACOLOD CITY
The three (3) – day notice expired on February 25, 2013.
Considering that the above-mentioned material is found to be in
violation of Comelec Resolution No. 9615 promulgated on January
15, 2013 particularly on the size (even with the subsequent division
of the said tarpaulin into two), as the lawful size for election
propaganda material is only two feet (2’) by three feet (3’), please
order/cause the immediate removal of said election propaganda
material, otherwise, we shall be constrained to file an election
offense case against you.
We pray that the Catholic Church will be the first institution to help
the Commission on Elections inensuring the conduct of peaceful,
orderly, honest and credible elections.
Thank you and God Bless!
[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV13
Concerned about the imminent threatof prosecution for their
exercise of free speech, petitioners initiated this case through this
petition for certiorari and prohibition with application for preliminary
injunction and temporary restraining order.14 They question
respondents’ notice dated February 22, 2013 and letter issued on
February 27, 2013. They pray that: (1) the petition be given due
course; (2) a temporary restraining order (TRO) and/or a writ of
preliminary injunction be issued restraining respondents from
further proceeding in enforcing their orders for the removal of the
Team Patay tarpaulin; and (3) after notice and hearing, a decision be
rendered declaring the questioned orders of respondents as
unconstitutional and void, and permanently restraining respondents
from enforcing them or any other similar order.15
After due deliberation, this court, on March 5, 2013, issued a
temporary restraining order enjoining respondents from enforcing
the assailed notice and letter, and set oral arguments on March 19,
2013.16
On March 13, 2013, respondents filed their comment17 arguing that
(1) a petition for certiorari and prohibition under Rule 65 of the Rules
of Court filed before this court is not the proper remedy to question
the notice and letter of respondents; and (2) the tarpaulin is an
election propaganda subject to regulation by COMELEC pursuant to
its mandate under Article IX-C, Section 4 of the Constitution. Hence,
respondents claim that the issuances ordering its removal for being
oversized are valid and constitutional.18
During the hearing held on March 19, 2013, the parties were directed
to file their respective memoranda within 10 days or by April 1, 2013,
taking into consideration the intervening holidays.19
The issues, which also served as guide for the oral arguments, are:20
I.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION
OFFICER MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE
COMELEC LAW DEPARTMENT ARE CONSIDERED JUDGMENTS/FINAL
ORDERS/RESOLUTIONS OF THE COMELEC WHICH WOULD WARRANT
A REVIEW OF THIS COURT VIA RULE 65 PETITION[;]
A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF COURTS
DOCTRINE AND JURISPRUDENTIAL RULES GOVERNING APPEALS
FROM COMELEC DECISIONS;
B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED ORDERS
ARE NOT CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS
OF THE COMELEC, WHETHER THERE ARE EXCEPTIONAL
CIRCUMSTANCES WHICH WOULD ALLOW THIS COURT TO TAKE
COGNIZANCE OF THE CASE[;]
II.
WHETHER IT IS RELEVANT TODETERMINE WHETHER THE
TARPAULINS ARE "POLITICAL ADVERTISEMENT" OR "ELECTION
PROPAGANDA" CONSIDERING THAT PETITIONER IS NOT A POLITICAL
CANDIDATE[;]
III.
WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION
(PROTECTED SPEECH), OR ELECTION PROPAGANDA/POLITICAL
ADVERTISEMENT[;]
A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A FORM OF
EXPRESSION, WHETHER THE COMELEC POSSESSES THE AUTHORITY
TO REGULATE THE SAME[;]
B. WHETHER THIS FORM OF EXPRESSION MAY BE REGULATED[;]
IV.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION
OFFICER MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE
COMELEC LAW DEPARTMENT VIOLATES THE PRINCIPLE OF
SEPARATION OF CHURCH AND STATE[;] [AND]
V.
WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS
TARPAULIN VIOLATES THE CONSTITUTIONAL PRINCIPLE OF
SEPARATION OF CHURCH AND STATE.
I the exercise of its adjudicatory or quasi-judicial powers." This
PROCEDURAL ISSUES
I.A
This court’s jurisdiction over COMELEC cases
Respondents ask that this petition be dismissed on the ground that
the notice and letter are not final orders, decisions, rulings, or
judgments of the COMELEC En Banc issued in the exercise of its
adjudicatory powers, reviewable via Rule 64 of the Rules of Court.21
Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule
65 is applicable especially to raise objections relating to a grave abuse
of discretion resulting in the ouster of jurisdiction.22 As a special civil
action, there must also be a showing that there be no plain, speedy,
and adequate remedy in the ordinary course of the law.
Respondents contend that the assailed notice and letter are not
subject to review by this court, whose power to review is "limited
only to final decisions, rulings and orders of the COMELEC En Banc
rendered in the exercise of its adjudicatory or quasi-judicial
power."23 Instead, respondents claim that the assailed notice and
letter are reviewable only by COMELEC itself pursuant to Article IX-C,
Section 2(3) of the Constitution24 on COMELEC’s power to decide all
questions affecting elections.25 Respondents invoke the cases of
Ambil, Jr. v. COMELEC,26 Repol v. COMELEC,27 Soriano, Jr. v.
COMELEC,28 Blanco v. COMELEC,29 and Cayetano v. COMELEC,30 to
illustrate how judicialintervention is limited to final decisions, orders,
rulings and judgments of the COMELEC En Banc.31
These cases are not applicable.
In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of
Eastern Samar filed the election protest.32 At issue was the validity
of the promulgation of a COMELEC Division resolution.33 No motion
for reconsideration was filed to raise this issue before the COMELEC
En Banc. This court declared that it did not have jurisdiction and
clarified:
We have interpreted [Section 7, Article IX-A of the Constitution]34 to
mean final orders, rulings and decisionsof the COMELEC rendered in
decision must be a final decision or resolution of the Comelec en
banc, not of a division, certainly not an interlocutory order of a
division.The Supreme Court has no power to review viacertiorari, an
interlocutory order or even a final resolution of a Division of the
Commission on Elections.35 (Emphasis in the original, citations
omitted)
However, in the next case cited by respondents, Repol v. COMELEC,
this court provided exceptions to this general rule. Repolwas another
election protest case, involving the mayoralty elections in
Pagsanghan, Samar.36 This time, the case was brought to this court
because the COMELEC First Division issued a status quo ante order
against the Regional Trial Court executing its decision pending
appeal.37 This court’s ponencia discussed the general rule
enunciated in Ambil, Jr. that it cannot take jurisdiction to review
interlocutory orders of a COMELEC Division.38 However, consistent
with ABS-CBN Broadcasting Corporation v. COMELEC,39 it clarified
the exception:
This Court, however, has ruled in the past that this procedural
requirement [of filing a motion for reconsideration] may be glossed
over to prevent miscarriage of justice, when the issue involves the
principle of social justice or the protection of labor, when the
decision or resolution sought to be set aside is a nullity, or when the
need for relief is extremely urgent and certiorari is the only adequate
and speedy remedy available.40
Based on ABS-CBN, this court could review orders and decisions of
COMELEC — in electoral contests — despite not being reviewed by
the COMELEC En Banc, if:
1) It will prevent the miscarriage of justice;
2) The issue involves a principle of social justice;
3) The issue involves the protection of labor;
4) The decision or resolution sought tobe set aside is a nullity; or
5) The need for relief is extremely urgent and certiorari is the only
adequate and speedy remedy available.
Ultimately, this court took jurisdiction in Repoland decided that the
status quo anteorder issued by the COMELEC Division was
unconstitutional.
Respondents also cite Soriano, Jr. v. COMELEC.This case was also an
election protest case involving candidates for the city council of
Muntinlupa City.41 Petitioners in Soriano, Jr.filed before this court a
petition for certiorari against an interlocutory order of the COMELEC
First
Division.42 While the petition was pending in this court, the
COMELEC First Division dismissed the main election protest case.43
Sorianoapplied the general rule that only final orders should be
questioned with this court. The ponencia for this court, however,
acknowledged the exceptions to the general rule in ABS-CBN.44
Blanco v. COMELEC, another case cited by respondents, was a
disqualification case of one of the mayoralty candidates of
Meycauayan, Bulacan.45 The COMELEC Second Division ruled that
petitioner could not qualify for the 2007 elections due to the findings
in an administrative case that he engaged in vote buying in the 1995
elections.46 No motion for reconsideration was filed before the
COMELEC En Banc. This court, however, took cognizance of this case
applying one of the exceptions in ABS-CBN: The assailed resolution
was a nullity.47
Finally, respondents cited Cayetano v. COMELEC, a recent election
protest case involving the mayoralty candidates of Taguig City.48
Petitioner assailed a resolution of the COMELEC denying her motion
for reconsideration to dismiss the election protest petition for lack of
form and substance.49 This court clarified the general rule and
refused to take cognizance of the review of the COMELEC order.
While recognizing the exceptions in ABS-CBN, this court ruled that
these exceptions did not apply.50
Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by
respondents do not operate as precedents to oust this court from
taking jurisdiction over this case. All these cases cited involve election
protests or disqualification cases filed by the losing candidate against
the winning candidate.
In the present case, petitioners are not candidates seeking for public
office. Their petition is filed to assert their fundamental right to
expression.
Furthermore, all these cases cited by respondents pertained to
COMELEC’s exercise of its adjudicatory or quasi-judicial power. This
case pertains to acts of COMELEC in the implementation of its
regulatory powers. When it issued the notice and letter, the
COMELEC was allegedly enforcingelection laws.
I.B
Rule 65, grave abuse of discretion,
and limitations on political speech
The main subject of thiscase is an alleged constitutional violation: the
infringement on speech and the "chilling effect" caused by
respondent COMELEC’s notice and letter.
Petitioners allege that respondents committed grave abuse of
discretion amounting to lack or excess of jurisdiction in issuing the
notice51 dated February 22,2013 and letter52 dated February 27,
2013 ordering the removal of the tarpaulin.53 It is their position that
these infringe on their fundamental right to freedom of expression
and violate the principle of separation of church and state and, thus,
are unconstitutional.54
The jurisdiction of this court over the subject matter is determined
from the allegations in the petition. Subject matter jurisdiction is
defined as the authority "to hear and determine cases of the general
class to which the proceedings in question belong and is conferred by
the sovereign authority which organizes the court and defines its
powers."55 Definitely, the subject matter in this case is different
from the cases cited by respondents.
Nothing less than the electorate’s political speech will be affected by
the restrictions imposed by COMELEC. Political speech is motivated
by the desire to be heard and understood, to move people to action.
It is concerned with the sovereign right to change the contours of
power whether through the election of representatives in a
republican government or the revision of the basic text of the
Constitution. The zeal with which we protect this kind of speech does
not depend on our evaluation of the cogency of the message. Neither
do we assess whether we should protect speech based on the
motives of COMELEC. We evaluate restrictions on freedom of
expression from their effects. We protect both speech and medium
because the quality of this freedom in practice will define the quality
of deliberation in our democratic society.
COMELEC’s notice and letter affect preferred speech. Respondents’
acts are capable of repetition. Under the conditions in which it was
issued and in view of the novelty of this case,it could result in a
"chilling effect" that would affect other citizens who want their voices
heard on issues during the elections. Other citizens who wish to
express their views regarding the election and other related issues
may choose not to, for fear of reprisal or sanction by the COMELEC.
Direct resort to this court is allowed to avoid such proscribed
conditions. Rule 65 is also the procedural platform for raising grave
abuse of discretion.
Both parties point to constitutional provisions on jurisdiction. For
petitioners, it referred to this court’s expanded exercise of certiorari
as provided by the Constitution as follows:
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 ornot 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.56
(Emphasis supplied)
On the other hand, respondents relied on its constitutional mandate
to decide all questions affectingelections. Article IX-C, Section 2(3) of
the Constitution, provides:
Sec. 2. The Commission on Elections shall exercise the following
powers and functions:
....
(3) Decide, except those involving the right to vote, all questions
affecting elections, including determination of the number and
location of polling places, appointment of election officials and
inspectors, and registration of voters.
Respondents’ reliance on this provision is misplaced.
We are not confronted here with the question of whether the
COMELEC, in its exercise of jurisdiction, gravely abused it. We are
confronted with the question as to whether the COMELEC had any
jurisdiction at all with its acts threatening imminent criminal action
effectively abridging meaningful political speech.
It is clear that the subject matter of the controversy is the effect of
COMELEC’s notice and letter on free speech. This does not fall under
Article IX-C, Section 2(3) of the Constitution. The use of the word
"affecting" in this provision cannot be interpreted to mean that
COMELEC has the exclusive power to decide any and allquestions
that arise during elections. COMELEC’s constitutional competencies
during elections should not operate to divest this court of its own
jurisdiction.
The more relevant provision for jurisdiction in this case is Article VIII,
Section 5(1) of the Constitution.This provision provides for this
court’s original jurisdiction over petitions for certiorari and
prohibition. This should be read alongside the expanded jurisdiction
of the court in Article VIII, Section 1 of the Constitution.
Certainly, a breach of the fundamental right of expression by
COMELEC is grave abuse of discretion. Thus, the constitutionality of
the notice and letter coming from COMELEC is within this court’s
power to review.
During elections, we have the power and the duty to correct any
grave abuse of discretion or any act tainted with unconstitutionality
on the part of any government branch or instrumentality. This
includes actions by the COMELEC. Furthermore, it is this court’s
constitutional mandate to protect the people against government’s
infringement of their fundamental rights. This constitutional
mandate out weighs the jurisdiction vested with the COMELEC.
It will, thus, be manifest injustice if the court does not take
jurisdiction over this case.
I.C
Hierarchy of courts
This brings us to the issue of whether petitioners violated the
doctrine of hierarchy of courts in directly filing their petition before
this court.
Respondents contend that petitioners’ failure to file the proper suit
with a lower court of concurrent jurisdiction is sufficient ground for
the dismissal of their petition.57 They add that observation of the
hierarchy of courts is compulsory, citing Heirs of Bertuldo Hinog v.
Melicor.58 While respondents claim that while there are exceptions
to the general rule on hierarchy of courts, none of these are present
in this case.59
On the other hand, petitioners cite Fortich v. Corona60 on this court’s
discretionary power to take cognizance of a petition filed directly to
it if warranted by "compelling reasons, or [by] the nature and
importance of the issues raised. . . ."61 Petitioners submit that there
are "exceptional and compelling reasons to justify a direct resort
[with] this Court."62
In Bañez, Jr. v. Concepcion,63 we explained the necessity of the
application of the hierarchy of courts:
The Court must enjoin the observance of the policy on the hierarchy
of courts, and now affirms that the policy is not to be ignored without
serious consequences. The strictness of the policy is designed to
shield the Court from having to deal with causes that are also well
within the competence of the lower courts, and thus leave time to
the Court to deal with the more fundamental and more essential
tasks that the Constitution has assigned to it. The Court may act on
petitions for the extraordinary writs of certiorari, prohibition and
mandamus only when absolutely necessary or when serious and
important reasons exist to justify an exception to the policy.64
In Bañez, we also elaborated on the reasons why lower courts are
allowed to issue writs of certiorari, prohibition, and mandamus, citing
Vergara v. Suelto:65
The Supreme Court is a court of lastresort, and must so remain if it is
to satisfactorily perform the functions assigned to it by the
fundamental charter and immemorial tradition. It cannot and should
not be burdened with the task of dealing with causes in the first
instance. Its original jurisdiction to issue the so-called extraordinary
writs should be exercised only where absolutely necessary or where
serious and important reasons exist therefore. Hence, that
jurisdiction should generally be exercised relative to actions or
proceedings before the Court of Appeals, or before constitutional or
other tribunals, bodies or agencies whose acts for some reason or
another are not controllable by the Court of Appeals. Where the
issuance of an extraordinary writ is also within the competence of the
Court of Appeals or a Regional Trial Court, it is in either of these
courts that the specific action for the writ’s procurement must be
presented. This is and should continue to be the policy in this regard,
a policy that courts and lawyers must strictly observe.66 (Emphasis
omitted)
The doctrine that requires respect for the hierarchy of courts was
created by this court to ensure that every level of the judiciary
performs its designated roles in an effective and efficient manner.
Trial courts do not only determine the facts from the evaluation of
the evidence presented before them. They are likewise competent to
determine issues of law which may include the validity of an
ordinance, statute, or even an executive issuance in relation to the
Constitution.67 To effectively perform these functions, they are
territorially organized into regions and then into branches. Their
writs generally reach within those territorial boundaries. Necessarily,
they mostly perform the all-important task of inferring the facts from
the evidence as these are physically presented before them. In many
instances, the facts occur within their territorial jurisdiction, which
properly present the ‘actual case’ that makes ripe a determination of
the constitutionality of such action. The consequences, of course,
would be national in scope. There are, however, some cases where
resort to courts at their level would not be practical considering their
decisions could still be appealed before the higher courts, such as the
Court of Appeals.
The Court of Appeals is primarily designed as an appellate court that
reviews the determination of facts and law made by the trial courts.
It is collegiate in nature. This nature ensures more standpoints in the
review of the actions of the trial court. But the Court of Appeals also
has original jurisdiction over most special civil actions. Unlike the trial
courts, its writs can have a nationwide scope. It is competent to
determine facts and, ideally, should act on constitutional issues
thatmay not necessarily be novel unless there are factual questions
to determine.
This court, on the other hand, leads the judiciary by breaking new
ground or further reiterating — in the light of new circumstances or
in the light of some confusions of bench or bar — existing precedents.
Rather than a court of first instance or as a repetition of the actions
of the Court of Appeals, this court promulgates these doctrinal
devices in order that it truly performs that role.
In other words, the Supreme Court’s role to interpret the
Constitution and act in order to protect constitutional rights when
these become exigent should not be emasculated by the doctrine in
respect of the hierarchy of courts. That has never been the purpose
of such doctrine.
Thus, the doctrine of hierarchy of courts is not an iron-clad rule.68
This court has "full discretionary power to take cognizance and
assume jurisdiction [over] special civil actions for certiorari . . .filed
directly with it for exceptionally compelling reasons69 or if warranted
by the nature of the issues clearly and specifically raised in the
petition."70 As correctly pointed out by petitioners,71 we have
provided exceptions to this doctrine:
First, a direct resort to this court is allowed when there are genuine
issues of constitutionality that must be addressed at the most
immediate time. A direct resort to this court includes availing of the
remedies of certiorari and prohibition toassail the constitutionality of
actions of both legislative and executive branches of the
government.72
In this case, the assailed issuances of respondents prejudice not only
petitioners’ right to freedom of expression in the present case, but
also of others in future similar cases. The case before this court
involves an active effort on the part of the electorate to reform the
political landscape. This has become a rare occasion when private
citizens actively engage the public in political discourse. To quote an
eminent political theorist:
[T]he theory of freedom of expression involves more than a
technique for arriving at better social judgments through democratic
procedures. It comprehends a vision of society, a faith and a whole
way of life. The theory grew out of an age that was awakened and
invigorated by the idea of new society in which man's mind was free,
his fate determined by his own powers of reason, and his prospects
of creating a rational and enlightened civilization virtually unlimited.
It is put forward as a prescription for attaining a creative, progressive,
exciting and intellectually robust community. It contemplates a mode
of life that, through encouraging toleration, skepticism, reason and
initiative, will allow man to realize his full potentialities.It spurns the
alternative of a society that is tyrannical, conformist, irrational and
stagnant.73
In a democracy, the citizen’s right tofreely participate in the exchange
of ideas in furtherance of political decision-making is recognized. It
deserves the highest protection the courts may provide, as public
participation in nation-building isa fundamental principle in our
Constitution. As such, their right to engage in free expression of ideas
must be given immediate protection by this court.
A second exception is when the issuesinvolved are of transcendental
importance.74 In these cases, the imminence and clarity of the threat
to fundamental constitutional rights outweigh the necessity for
prudence. The doctrine relating to constitutional issues of
transcendental importance prevents courts from the paralysis of
procedural niceties when clearly faced with the need for substantial
protection.
In the case before this court, there is a clear threat to the paramount
right of freedom of speech and freedom of expression which
warrants invocation of relief from this court. The principles laid down
in this decision will likely influence the discourse of freedom of
speech in the future, especially in the context of elections. The right
to suffrage not only includes the right to vote for one’s chosen
candidate, but also the right to vocalize that choice to the public in
general, in the hope of influencing their votes. It may be said that in
an election year, the right to vote necessarily includes the right to
free speech and expression. The protection of these fundamental
constitutional rights, therefore, allows for the immediate resort to
this court.
Third, cases of first impression75 warrant a direct resort to this court.
In cases of first impression, no jurisprudence yet exists that will guide
the lower courts on this matter. In Government of the United States
v. Purganan,76 this court took cognizance of the case as a matter of
first impression that may guide the lower courts:
In the interest of justice and to settle once and for all the important
issue of bail in extradition proceedings, we deem it best to take
cognizance of the present case. Such proceedings constitute a matter
of first impression over which there is, as yet, no local jurisprudence
to guide lower courts.77
This court finds that this is indeed a case of first impression involving
as it does the issue of whether the right of suffrage includes the right
of freedom of expression. This is a question which this court has yet
to provide substantial answers to, through jurisprudence. Thus,
direct resort to this court is allowed.
Fourth, the constitutional issues raisedare better decided by this
court. In Drilon v. Lim,78 this court held that:
. . . it will be prudent for such courts, if only out of a becoming
modesty, to defer to the higher judgmentof this Court in the
consideration of its validity, which is better determined after a
thorough deliberation by a collegiate body and with the concurrence
of the majority of those who participated in its discussion.79 (Citation
omitted)
In this case, it is this court, with its constitutionally enshrined judicial
power, that can rule with finality on whether COMELEC committed
grave abuse of discretion or performed acts contrary to the
Constitution through the assailed issuances.
Fifth, the time element presented in this case cannot be ignored. This
case was filed during the 2013 election period. Although the elections
have already been concluded, future cases may be filed that
necessitate urgency in its resolution. Exigency in certain situations
would qualify as an exception for direct resort to this court.
Sixth, the filed petition reviews the act of a constitutional organ.
COMELEC is a constitutional body. In Albano v. Arranz,80 cited by
petitioners, this court held that "[i]t is easy to realize the chaos that
would ensue if the Court of First Instance ofeach and every province
were [to] arrogate itself the power to disregard, suspend, or
contradict any order of the Commission on Elections: that
constitutional body would be speedily reduced to impotence."81
In this case, if petitioners sought to annul the actions of COMELEC
through pursuing remedies with the lower courts, any ruling on their
part would not have been binding for other citizens whom
respondents may place in the same situation. Besides, thiscourt
affords great respect to the Constitution and the powers and duties
imposed upon COMELEC. Hence, a ruling by this court would be in
the best interest of respondents, in order that their actions may be
guided accordingly in the future.
Seventh, petitioners rightly claim that they had no other plain,
speedy, and adequate remedy in the ordinary course of law that
could free them from the injurious effects of respondents’ acts in
violation of their right to freedom of expression.
In this case, the repercussions of the assailed issuances on this basic
right constitute an exceptionally compelling reason to justify the
direct resort to this court. The lack of other sufficient remedies in the
course of law alone is sufficient ground to allow direct resort to this
court.
Eighth, the petition includes questionsthat are "dictated by public
welfare and the advancement of public policy, or demanded by the
broader interest of justice, or the orders complained of were found
to be patent nullities, or the appeal was consideredas clearly an
inappropriate remedy."82 In the past, questions similar to these
which this court ruled on immediately despite the doctrine of
hierarchy of courts included citizens’ right to bear arms,83
government contracts involving modernization of voters’ registration
lists,84 and the status and existence of a public office.85
This case also poses a question of similar, if not greater import.
Hence, a direct action to this court is permitted.
It is not, however, necessary that all of these exceptions must occur
at the same time to justify a direct resort to this court. While
generally, the hierarchy of courts is respected, the present case falls
under the recognized exceptions and, as such, may be resolved by
this court directly.
I.D
The concept of a political question
Respondents argue further that the size limitation and its
reasonableness is a political question, hence not within the ambit of
this court’s power of review. They cite Justice Vitug’s separate
opinion in Osmeña v. COMELEC86 to support their position:
It might be worth mentioning that Section 26, Article II, of the
Constitution also states that the "State shall guarantee equal access
to opportunities for public service, and prohibit political dynasties as
may be defined by law." I see neither Article IX (C)(4) nor Section 26,
Article II, of the Constitution to be all that adversarial or irreconcilably
inconsistent with the right of free expression. In any event, the latter,
being one of general application, must yield to the specific demands
of the Constitution. The freedom of expression concededly holds, it
is true, a vantage point in hierarchy of constitutionally-enshrined
rights but, like all fundamental rights, it is not without limitations.
The case is not about a fight between the "rich" and the "poor" or
between the "powerful" and the "weak" in our society but it is to me
a genuine attempt on the part of Congress and the Commission on
Elections to ensure that all candidates are given an equal chance to
media coverage and thereby be equally perceived as giving real life
to the candidates’ right of free expression rather than being viewed
as an undue restriction of that freedom. The wisdom in the
enactment of the law, i.e., that which the legislature deems to be
best in giving life to the Constitutional mandate, is not for the Court
to question; it is a matter that lies beyond the normal prerogatives of
the Court to pass upon.87
This separate opinion is cogent for the purpose it was said. But it is
not in point in this case.
The present petition does not involve a dispute between the rich and
poor, or the powerful and weak, on their equal opportunities for
media coverage of candidates and their right to freedom of
expression. This case concerns the right of petitioners, who are non-
candidates, to post the tarpaulin in their private property, asan
exercise of their right of free expression. Despite the invocation of
the political question doctrine by respondents, this court is not
proscribed from deciding on the merits of this case.
In Tañada v. Cuenco,88 this court previously elaborated on the
concept of what constitutes a political question:
What is generally meant, when it is said that a question is political,
and not judicial, is that it is a matter which is to be exercised by the
people in their primary political capacity, or that it has been
specifically delegated to some other department or particular officer
of the government, withdiscretionary power to act.89 (Emphasis
omitted)
It is not for this court to rehearse and re-enact political debates on
what the text of the law should be. In political forums, particularly
the legislature, the creation of the textof the law is based on a general
discussion of factual circumstances, broadly construed in order to
allow for general application by the executive branch. Thus, the
creation of the law is not limited by particular and specific facts that
affect the rights of certain individuals, per se.
Courts, on the other hand, rule on adversarial positions based on
existing facts established on a specific case-to-case basis, where
parties affected by the legal provision seek the courts’ understanding
of the law.
The complementary nature of the political and judicial branches of
government is essential in order to ensure that the rights of the
general public are upheld at all times. In order to preserve this
balance, branches of government must afford due respectand
deference for the duties and functions constitutionally delegated to
the other. Courts cannot rush to invalidate a law or rule. Prudence
dictates that we are careful not to veto political acts unless we can
craft doctrine narrowly tailored to the circumstances of the case.
The case before this court does not call for the exercise of prudence
or modesty. There is no political question. It can be acted upon by
this court through the expanded jurisdiction granted to this court
through Article VIII, Section 1 of the Constitution.
A political question arises in constitutional issues relating to the
powers or competence of different agencies and departments of the
executive or those of the legislature. The political question doctrine
is used as a defense when the petition asks this court to nullify certain
acts that are exclusively within the domain of their respective
competencies, as provided by the Constitution or the law. In such
situation, presumptively, this court should act with deference. It will
decline to void an act unless the exercise of that power was so
capricious and arbitrary so as to amount to grave abuse of discretion.
The concept of a political question, however, never precludes judicial
review when the act of a constitutional organ infringes upon a
fundamental individual or collective right. Even assuming arguendo
that the COMELEC did have the discretion to choose the manner of
regulation of the tarpaulin in question, it cannot do so by abridging
the fundamental right to expression.
Marcos v. Manglapus90 limited the use of the political question
doctrine:
When political questions are involved, the Constitution limits the
determination to whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of
the official whose action is being questioned. If grave abuse is not
established, the Court will not substitute its judgment for that of the
official concerned and decide a matter which by its nature or by law
is for the latter alone to decide.91
How this court has chosen to address the political question doctrine
has undergone an evolution since the timethat it had been first
invoked in Marcos v. Manglapus. Increasingly, this court has taken
the historical and social context of the case and the relevance of
pronouncements of carefully and narrowly tailored constitutional
doctrines. This trend was followed in cases such as Daza v. Singson92
and Coseteng v. Mitra Jr.93
Daza and Coseteng involved a question as to the application of Article
VI, Section 18 of the 1987 Constitution involving the removal of
petitioners from the Commission on Appointments. In times past,
this would have involved a quint essentially political question as it
related to the dominance of political parties in Congress. However, in
these cases, this court exercised its power of judicial review noting
that the requirement of interpreting the constitutional provision
involved the legality and not the wisdom of a manner by which a
constitutional duty or power was exercised. This approach was again
reiterated in Defensor Santiago v. Guingona, Jr.94
In Integrated Bar of the Philippines v. Zamora,95 this court declared
again that the possible existence ofa political question did not bar an
examination of whether the exercise of discretion was done with
grave abuse of discretion. In that case, this court ruled on the
question of whether there was grave abuse of discretion in the
President’s use of his power to call out the armed forces to prevent
and suppress lawless violence.
In Estrada v. Desierto,96 this court ruled that the legal question as to
whether a former President resigned was not a political question
even if the consequences would be to ascertain the political
legitimacy of a successor President.
Many constitutional cases arise from political crises. The actors in
such crises may use the resolution of constitutional issues as
leverage. But the expanded jurisdiction of this court now mandates a
duty for it to exercise its power of judicial review expanding on
principles that may avert catastrophe or resolve social conflict.
This court’s understanding of the political question has not been
static or unbending. In Llamas v. Executive Secretary Oscar Orbos,97
this court held:
While it is true that courts cannot inquire into the manner in which
the President's discretionary powers are exercised or into the
wisdom for its exercise, it is also a settled rule that when the issue
involved concerns the validity of such discretionary powers or
whether said powers are within the limits prescribed by the
Constitution, We will not decline to exercise our power of judicial
review. And such review does not constitute a modification or
correction of the act of the President, nor does it constitute
interference with the functions of the President.98
The concept of judicial power in relation to the concept of the
political question was discussed most extensively in Francisco v.
HRET.99 In this case, the House of Representatives arguedthat the
question of the validity of the second impeachment complaint that
was filed against former Chief Justice Hilario Davide was a political
question beyond the ambit of this court. Former Chief Justice
Reynato Puno elaborated on this concept in his concurring and
dissenting opinion:
To be sure, the force to impugn the jurisdiction of this Court becomes
more feeble in light of the new Constitution which expanded the
definition of 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." As well observed by retired Justice Isagani Cruz, this
expanded definition of judicial power considerably constricted the
scope of political question. He opined that the language luminously
suggests that this duty (and power) is available even against the
executive and legislative departments including the President and
the Congress, in the exercise of their discretionary powers.100
(Emphasis in the original, citations omitted)
Francisco also provides the cases which show the evolution of the
political question, as applied in the following cases:
In Marcos v. Manglapus, 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. x x x
In Bengzon v. Senate Blue Ribbon Committee, through Justice
Teodoro Padilla, this Court declared:
The "allocation of constitutional boundaries" is a task that this Court
must perform under the Constitution. Moreover, as held in a recent
case, "(t)he political question doctrine neither interposes an obstacle
to judicial determination of the rival claims. The jurisdiction to delimit
constitutional boundaries has been given to this Court. It cannot
abdicate that obligation mandated by the 1987 Constitution,
although said provision by no means does away with the applicability
of the principle in appropriate cases." (Emphasis and italics supplied)
And in Daza v. Singson, 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.x x x (Emphasis and italics supplied.)
....
In our jurisdiction, the determination of whether an issue involves a
truly political and non-justiciable 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.101 (Citations omitted)
As stated in Francisco, a political question will not be considered
justiciable if there are no constitutionally imposed limits on powers
or functions conferred upon political bodies. Hence, the existence of
constitutionally imposed limits justifies subjecting the official actions
of the body to the scrutiny and review of this court.
In this case, the Bill of Rights gives the utmost deference to the right
to free speech. Any instance that this right may be abridged demands
judicial scrutiny. It does not fall squarely into any doubt that a
political question brings.
I.E
Exhaustion of administrative remedies
Respondents allege that petitioners violated the principle of
exhaustion of administrative remedies. Respondents insist that
petitioners should have first brought the matter to the COMELEC En
Banc or any of its divisions.102
Respondents point out that petitioners failed to comply with the
requirement in Rule 65 that "there is no appeal, or any plain, speedy,
and adequate remedy in the ordinary course of law."103 They add
that the proper venue to assail the validity of the assailed issuances
was in the course of an administrative hearing to be conducted by
COMELEC.104 In the event that an election offense is filed against
petitioners for posting the tarpaulin, they claim that petitioners
should resort to the remedies prescribed in Rule 34 of the COMELEC
Rules of Procedure.105
The argument on exhaustion of administrative remedies is not proper
in this case.
Despite the alleged non-exhaustion of administrative remedies, it is
clear that the controversy is already ripe for adjudication. Ripeness is
the "prerequisite that something had by then been accomplished or
performed by either branch [or in this case, organ of government]
before a court may come into the picture."106
Petitioners’ exercise of their rightto speech, given the message and
their medium, had understandable relevance especially during the
elections. COMELEC’s letter threatening the filing of the election
offense against petitioners is already an actionable infringement of
this right. The impending threat of criminal litigation is enough to
curtail petitioners’ speech.
In the context of this case, exhaustion of their administrative
remedies as COMELEC suggested in their pleadings prolongs the
violation of their freedom of speech.
Political speech enjoys preferred protection within our constitutional
order. In Chavez v. Gonzales,107 Justice Carpio in a separate opinion
emphasized: "[i]f everthere is a hierarchy of protected expressions,
political expression would occupy the highest rank, and among
different kinds of political expression, the subject of fair and honest
elections would be at the top."108 Sovereignty resides in the
people.109 Political speech is a direct exercise of the sovereignty. The
principle of exhaustion of administrative remedies yields in order to
protect this fundamental right.
Even assuming that the principle of exhaustion of administrative
remedies is applicable, the current controversy is within the
exceptions to the principle. In Chua v. Ang,110 this court held:
On the other hand, prior exhaustion of administrative remedies may
be dispensed with and judicial action may be validly resorted to
immediately: (a) when there is a violation of due process; (b) when
the issue involved is purely a legal question; (c) when the
administrative action is patently illegal amounting to lack or excess
of jurisdiction; (d) when there is estoppel on the part ofthe
administrative agency concerned; (e) when there is irreparable
injury; (f) when the respondent is a department secretary whose acts
as analter ego of the President bear the implied and assumed
approval of the latter; (g) when to require exhaustion of
administrative remedies would be unreasonable; (h) when it would
amount to a nullification of a claim; (i) when the subject matter is a
private land in land case proceedings; (j) whenthe rule does not
provide a plain, speedy and adequate remedy; or (k) when there are
circumstances indicating the urgency of judicial intervention."111
(Emphasis supplied, citation omitted)
The circumstances emphasized are squarely applicable with the
present case. First, petitioners allegethat the assailed issuances
violated their right to freedom of expression and the principle of
separation of church and state. This is a purely legal question.
Second, the circumstances of the present case indicate the urgency
of judicial intervention considering the issue then on the RH Law as
well as the upcoming elections. Thus, to require the exhaustion of
administrative remedies in this case would be unreasonable.
Time and again, we have held that this court "has the power to relax
or suspend the rules or to except a case from their operation when
compelling reasons so warrant, or whenthe purpose of justice
requires it, [and when] [w]hat constitutes [as] good and sufficient
cause that will merit suspension of the rules is discretionary upon the
court".112 Certainly, this case of first impression where COMELEC
has threatenedto prosecute private parties who seek to participate
in the elections by calling attention to issues they want debated by
the publicin the manner they feel would be effective is one of those
cases.
II
SUBSTANTIVE ISSUES
II.A
COMELEC had no legal basis to regulate expressions made by private
citizens
Respondents cite the Constitution, laws, and jurisprudence to
support their position that they had the power to regulate the
tarpaulin.113 However, all of these provisions pertain to candidates
and political parties. Petitioners are not candidates. Neither do
theybelong to any political party. COMELEC does not have the
authority to regulate the enjoyment of the preferred right to freedom
of expression exercised by a non-candidate in this case.
II.A.1
First, respondents cite Article IX-C, Section 4 of the Constitution,
which provides:
Section 4. The Commission may,during the election period, supervise
or regulate the enjoyment or utilization of all franchises or permits
for the operation of transportation and other public utilities, media
of communication or information, all grants, special privileges, or
concessions granted by the Government or any subdivision, agency,
or instrumentality thereof, including any government-owned or
controlled corporation or its subsidiary. Such supervision or
regulation shall aim to ensure equal opportunity, time, and space,
and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in
connection with the objective of holding free, orderly, honest,
peaceful, and credible elections.114 (Emphasis supplied)
Sanidad v. COMELEC115 involved the rules promulgated by COMELEC
during the plebiscite for the creation of the Cordillera Autonomous
Region.116 Columnist Pablito V. Sanidad questioned the provision
prohibiting journalists from covering plebiscite issues on the day
before and on plebiscite day.117 Sanidad argued that the prohibition
was a violation of the "constitutional guarantees of the freedom of
expression and of the press. . . ."118 We held that the "evil sought to
be prevented by this provision is the possibility that a franchise
holder may favor or give any undue advantage to a candidate in
terms of advertising space or radio or television time."119 This court
found that "[m]edia practitioners exercising their freedom of
expression during plebiscite periods are neither the franchise holders
nor the candidates[,]"120 thus, their right to expression during this
period may not be regulated by COMELEC.121
Similar to the media, petitioners in the case at bar are neither
franchise holders nor candidates. II.A.2
Respondents likewise cite Article IX-C, Section 2(7) of the
Constitution as follows:122
Sec. 2. The Commission on Elections shall exercise the following
powers and functions:
....
(7) Recommend to the Congress effective measures to minimize
election spending, including limitation of places where propaganda
materials shall be posted, and to prevent and penalize all forms of
election frauds, offenses, malpractices, and nuisance candidates.
(Emphasis supplied) Based on the enumeration made on actsthat
may be penalized, it will be inferred that this provision only affects
candidates.
Petitioners assail the "Notice to Remove Campaign Materials" issued
by COMELEC. This was followed bythe assailed letter regarding the
"election propaganda material posted on the church vicinity
promoting for or against the candidates and party-list groups. . . ."123
Section 9 of the Fair Election Act124 on the posting of campaign
materials only mentions "parties" and "candidates":
Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize
political parties and party-list groups to erect common poster areas
for their candidates in not more than ten (10) public places such as
plazas, markets, barangay centers and the like, wherein candidates
can post, display or exhibit election propaganda: Provided, That the
size ofthe poster areas shall not exceed twelve (12) by sixteen (16)
feet or its equivalent. Independent candidates with no political
parties may likewise be authorized to erect common poster areas in
not more than ten (10) public places, the size of which shall not
exceed four (4) by six (6) feet or its equivalent. Candidates may post
any lawful propaganda material in private places with the consent of
the owner thereof, and in public places or property which shall be
allocated equitably and impartially among the candidates. (Emphasis
supplied)
Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and
regulations implementing the Fair Election Act, provides as follows:
SECTION 17. Posting of Campaign Materials. - Parties and candidates
may post any lawful campaign material in:
a. Authorized common poster areasin public places subject to the
requirements and/or limitations set forth in the next following
section; and
b. Private places provided it has the consent of the owner thereof.
The posting of campaign materials in public places outside of the
designated common poster areas and those enumerated under
Section 7 (g) of these Rules and the like is prohibited. Persons posting
the same shall be liable together with the candidates and other
persons who caused the posting. It will be presumed that the
candidates and parties caused the posting of campaign materials
outside the common poster areas if they do not remove the same
within three (3) days from notice which shall be issued by the Election
Officer of the city or municipality where the unlawful election
propaganda are posted or displayed.
Members of the PNP and other law enforcement agencies called
upon by the Election Officeror other officials of the COMELEC shall
apprehend the violators caught in the act, and file the appropriate
charges against them. (Emphasis supplied)
Respondents considered the tarpaulin as a campaign material in their
issuances. The above provisions regulating the posting of campaign
materials only apply to candidates and political parties, and
petitioners are neither of the two.
Section 3 of Republic Act No. 9006on "Lawful Election Propaganda"
also states that these are "allowed for all registered political parties,
national, regional, sectoral parties or organizations participating
under the party-list elections and for all bona fide candidates seeking
national and local elective positions subject to the limitation on
authorized expenses of candidates and political parties. . . ." Section
6 of COMELEC Resolution No. 9615 provides for a similar wording.
These provisions show that election propaganda refers to matter
done by or on behalf of and in coordination with candidates and
political parties. Some level of coordination with the candidates and
political parties for whom the election propaganda are released
would ensure that these candidates and political parties maintain
within the authorized expenses limitation.
The tarpaulin was not paid for byany candidate or political party.125
There was no allegation that petitioners coordinated with any of the
persons named in the tarpaulin regarding its posting. On the other
hand, petitioners posted the tarpaulin as part of their advocacy
against the RH Law. Respondents also cite National Press Club v.
COMELEC126 in arguing that its regulatory power under the
Constitution, to some extent, set a limit on the right to free speech
during election period.127
National Press Club involved the prohibition on the sale and donation
of space and time for political advertisements, limiting political
advertisements to COMELEC-designated space and time. This case
was brought by representatives of mass media and two candidates
for office in the 1992 elections. They argued that the prohibition on
the sale and donation of space and time for political advertisements
is tantamount to censorship, which necessarily infringes on the
freedom of speech of the candidates.128
This court upheld the constitutionality of the COMELEC prohibition in
National Press Club. However, this case does not apply as most of the
petitioners were electoral candidates, unlike petitioners in the
instant case. Moreover, the subject matter of National Press Club,
Section 11(b) of Republic Act No. 6646,129 only refers to a particular
kind of media such as newspapers, radio broadcasting, or
television.130 Justice Feliciano emphasized that the provision did not
infringe upon the right of reporters or broadcasters to air their
commentaries and opinions regarding the candidates, their
qualifications, and program for government. Compared to
Sanidadwherein the columnists lost their ability to give their
commentary on the issues involving the plebiscite, National Press
Clubdoes not involve the same infringement.
In the case at bar, petitioners lost their ability to give a commentary
on the candidates for the 2013 national elections because of the
COMELEC notice and letter. It was not merelya regulation on the
campaigns of candidates vying for public office. Thus, National Press
Clubdoes not apply to this case.
Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as
the Omnibus Election Code, defines an"election campaign" as
follows:
....
(b) The term "election campaign" or "partisan political activity" refers
to an act designed to promote the election or defeat of a particular
candidate or candidates to a public office which shall include:
(1) Forming organizations, associations, clubs, committees or other
groups of persons for the purpose of soliciting votes and/or
undertaking any campaign for or against a candidate;
(2) Holding political caucuses, conferences, meetings, rallies,
parades, or other similar assemblies, for the purpose of soliciting
votes and/or undertaking any campaign or propaganda for or against
a candidate;
(3) Making speeches, announcements or commentaries, or holding
interviews for or against the election of any candidate for public
office;
(4) Publishing or distributing campaign literature or materials
designed to support or oppose the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or
against a candidate.
The foregoing enumerated acts ifperformed for the purpose of
enhancing the chances of aspirants for nomination for candidacy to
a public office by a political party, aggroupment, or coalition of
parties shall not be considered as election campaign or partisan
election activity. Public expressions or opinions or discussions of
probable issues in a forthcoming electionor on attributes of or
criticisms against probable candidates proposed to be nominated in
a forthcoming political party convention shall not be construed as
part of any election campaign or partisan political activity
contemplated under this Article. (Emphasis supplied)
True, there is no mention whether election campaign is limited only
to the candidates and political parties themselves. The focus of the
definition is that the act must be "designed to promote the election
or defeat of a particular candidate or candidates to a public office."
In this case, the tarpaulin contains speech on a matter of public
concern, that is, a statement of either appreciation or criticism on
votes made in the passing of the RH law. Thus, petitioners invoke
their right to freedom of expression.
II.B
The violation of the constitutional right
to freedom of speech and expression
Petitioners contend that the assailed notice and letter for the
removal of the tarpaulin violate their fundamental right to freedom
of expression.
On the other hand, respondents contend that the tarpaulin is an
election propaganda subject to their regulation pursuant to their
mandate under Article IX-C, Section 4 of the Constitution. Thus, the
assailed notice and letter ordering itsremoval for being oversized are
valid and constitutional.131
II.B.1
Fundamental to the consideration of this issue is Article III, Section 4
of the Constitution:
Section 4. No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to
assemble and petition the government for redress of grievances.132
No law. . .
While it is true that the present petition assails not a law but an
opinion by the COMELEC Law Department, this court has applied
Article III, Section 4 of the Constitution even to governmental acts.
In Primicias v. Fugoso,133 respondent Mayor applied by analogy
Section 1119 of the Revised Ordinances of 1927 of Manila for the
public meeting and assembly organized by petitioner Primicias.134
Section 1119 requires a Mayor’s permit for the use of streets and
public places for purposes such as athletic games, sports, or
celebration of national holidays.135 What was questioned was not a
law but the Mayor’s refusal to issue a permit for the holding of
petitioner’s public meeting.136 Nevertheless, this court recognized
the constitutional right to freedom of speech, to peaceful assembly
and to petition for redress of grievances, albeit not absolute,137 and
the petition for mandamus to compel respondent Mayor to issue the
permit was granted.138
In ABS-CBN v. COMELEC, what was assailed was not a law but
COMELEC En Banc Resolution No. 98-1419 where the COMELEC
resolved to approve the issuance of a restraining order to stop ABS-
CBN from conducting exit surveys.139 The right to freedom of
expression was similarly upheld in this case and, consequently, the
assailed resolution was nullified and set aside.140
. . . shall be passed abridging. . .
All regulations will have an impact directly or indirectly on
expression. The prohibition against the abridgment of speech should
not mean an absolute prohibition against regulation. The primary and
incidental burden on speech must be weighed against a compelling
state interest clearly allowed in the Constitution. The test depends
on the relevant theory of speech implicit in the kind of society framed
by our Constitution.
. . . of expression. . .
Our Constitution has also explicitly included the freedom of
expression, separate and in addition to the freedom of speech and of
the press provided in the US Constitution. The word "expression" was
added in the 1987 Constitution by Commissioner Brocka for having a
wider scope:
MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer.
On Section 9, page 2, line 29, it says: "No law shall be passed
abridging the freedom of speech." I would like to recommend to the
Committee the change of the word "speech" to EXPRESSION; or if
not, add the words AND EXPRESSION after the word "speech,"
because it is more expansive, it has a wider scope, and it would refer
to means of expression other than speech.
THE PRESIDING OFFICER (Mr.Bengzon): What does the Committee
say?
FR. BERNAS: "Expression" is more broad than speech. We accept it.
MR. BROCKA: Thank you.
THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?
FR. BERNAS: Yes.
THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection?
(Silence) The Chair hears none; the amendment is approved.
FR. BERNAS: So, that provision will now read: "No law shall be passed
abridging the freedom of speech, expression or of the press . . . ."141
Speech may be said to be inextricably linked to freedom itself as
"[t]he right to think is the beginning of freedom, and speech must be
protected from the government because speech is the beginning of
thought."142
II.B.2
Communication is an essential outcome of protected speech.143
Communication exists when "(1) a speaker, seeking to signal others,
uses conventional actions because he orshe reasonably believes that
such actions will be taken by the audience in the manner intended;
and (2) the audience so takes the actions."144 "[I]n communicative
action[,] the hearer may respond to the claims by . . . either accepting
the speech act’s claims or opposing them with criticism or requests
for justification."145
Speech is not limited to vocal communication. "[C]onduct is treated
as a form of speech sometimes referred to as ‘symbolic
speech[,]’"146 such that "‘when ‘speech’ and ‘nonspeech’ elements
are combined in the same course of conduct,’ the ‘communicative
element’ of the conduct may be ‘sufficient to bring into play the [right
to freedom of expression].’"147
The right to freedom of expression, thus, applies to the entire
continuum of speech from utterances made to conduct enacted, and
even to inaction itself as a symbolic manner of communication.
In Ebralinag v. The Division Superintendent of Schools of Cebu,148
students who were members of the religious sect Jehovah’s
Witnesses were to be expelled from school for refusing to salute the
flag, sing the national anthem, and recite the patriotic pledge.149 In
his concurring opinion, Justice Cruz discussed how the salute is a
symbolic manner of communication and a valid form of
expression.150 He adds that freedom of speech includes even the
right to be silent:
Freedom of speech includes the right to be silent. Aptly has it been
said that the Bill of Rights that guarantees to the individual the liberty
to utter what is in his mind also guarantees to him the liberty not to
utter what is not in his mind. The salute is a symbolic manner of
communication that conveys its messageas clearly as the written or
spoken word. As a valid form of expression, it cannot be compelled
any more than it can be prohibited in the face of valid religious
objections like those raised in this petition. To impose it on the
petitioners is to deny them the right not to speak when their religion
bids them to be silent. This coercion of conscience has no place in the
free society.
The democratic system provides for the accommodation of diverse
ideas, including the unconventional and even the bizarre or eccentric.
The will of the majority prevails, but it cannot regiment thought by
prescribing the recitation by rote of its opinions or proscribing the
assertion of unorthodox or unpopular views as inthis case. The
conscientious objections of the petitioners, no less than the
impatience of those who disagree with them, are protected by the
Constitution. The State cannot make the individual speak when the
soul within rebels.151
Even before freedom "of expression" was included in Article III,
Section 4 of the present Constitution,this court has applied its
precedent version to expressions other than verbal utterances.
In the 1985 case of Gonzalez v. Chairman Katigbak,152 petitioners
objected to the classification of the motion picture "Kapit sa Patalim"
as "For Adults Only." They contend that the classification "is without
legal and factual basis and is exercised as impermissible restraint of
artistic expression."153 This court recognized that "[m]otion pictures
are important both as a medium for the communication of ideas and
the expression of the artistic impulse."154 It adds that "every
writer,actor, or producer, no matter what medium of expression he
may use, should be freed from the censor."155 This court found that
"[the Board’s] perception of what constitutes obscenity appears to
be unduly restrictive."156 However, the petition was dismissed solely
on the ground that there were not enough votes for a ruling of grave
abuse of discretion in the classification made by the Board.157
II.B.3
Size does matter
The form of expression is just as important as the information
conveyed that it forms part of the expression. The present case is in
point.
It is easy to discern why size matters.
First, it enhances efficiency in communication. A larger tarpaulin
allows larger fonts which make it easier to view its messages from
greater distances. Furthermore, a larger tarpaulin makes it easier for
passengers inside moving vehicles to read its content. Compared
with the pedestrians, the passengers inside moving vehicles have
lesser time to view the content of a tarpaulin. The larger the fonts
and images, the greater the probability that it will catch their
attention and, thus, the greater the possibility that they will
understand its message.
Second, the size of the tarpaulin may underscore the importance of
the message to the reader. From an ordinary person’s perspective,
those who post their messages in larger fonts care more about their
message than those who carry their messages in smaller media. The
perceived importance given by the speakers, in this case petitioners,
to their cause is also part of the message. The effectivity of
communication sometimes relies on the emphasis put by the
speakers and onthe credibility of the speakers themselves. Certainly,
larger segments of the public may tend to be more convinced of the
point made by authoritative figures when they make the effort to
emphasize their messages.
Third, larger spaces allow for more messages. Larger spaces,
therefore, may translate to more opportunities to amplify, explain,
and argue points which the speakers might want to communicate.
Rather than simply placing the names and images of political
candidates and an expression of support, larger spaces can allow for
brief but memorable presentations of the candidates’ platforms for
governance. Larger spaces allow for more precise inceptions of ideas,
catalyze reactions to advocacies, and contribute more to a more
educated and reasoned electorate. A more educated electorate will
increase the possibilities of both good governance and accountability
in our government.
These points become more salient when it is the electorate, not the
candidates or the political parties, that speaks. Too often, the terms
of public discussion during elections are framed and kept hostage by
brief and catchy but meaningless sound bites extolling the character
of the candidate. Worse, elections sideline political arguments and
privilege the endorsement by celebrities. Rather than provide
obstacles to their speech, government should in fact encourage it.
Between the candidates and the electorate, the latter have the better
incentive to demand discussion of the more important issues.
Between the candidates and the electorate, the former have better
incentives to avoid difficult political standpoints and instead focus on
appearances and empty promises.
Large tarpaulins, therefore, are not analogous to time and place.158
They are fundamentally part of expression protected under Article III,
Section 4 of the Constitution.
II.B.4
There are several theories and schools of thought that strengthen the
need to protect the basic right to freedom of expression.
First, this relates to the right ofthe people to participate in public
affairs, including the right to criticize government actions.
Proponents of the political theory on "deliberative democracy"
submit that "substantial, open, [and] ethical dialogue isa critical, and
indeed defining, feature of a good polity."159 This theory may be
considered broad, but it definitely "includes [a] collective decision
making with the participation of all who will beaffected by the
decision."160 It anchors on the principle that the cornerstone of
every democracy is that sovereignty resides in the people.161 To
ensure order in running the state’s affairs, sovereign powers were
delegated and individuals would be elected or nominated in key
government positions to represent the people. On this note, the
theory on deliberative democracy may evolve to the right of the
people to make government accountable. Necessarily, this includes
the right of the people to criticize acts made pursuant to
governmental functions.
Speech that promotes dialogue on publicaffairs, or airs out
grievances and political discontent, should thus be protected and
encouraged.
Borrowing the words of Justice Brandeis, "it is hazardous to
discourage thought, hope and imagination; that fear breeds
repression; that repression breeds hate; that hate menaces stable
government; that the path of safety lies in the opportunity to discuss
freely supposed grievances and proposed remedies."162
In this jurisdiction, this court held that "[t]he interest of society and
the maintenance of good government demand a full discussion of
public affairs."163 This court has, thus, adopted the principle that
"debate on public issues should be uninhibited, robust,and wide
open . . . [including even] unpleasantly sharp attacks on government
and public officials."164
Second, free speech should be encouraged under the concept of a
market place of ideas. This theory was articulated by Justice Holmes
in that "the ultimate good desired is better reached by [the] free
trade in ideas:"165
When men have realized that time has upset many fighting faiths,
they may come to believe even more than they believe the very
foundations of their own conduct that the ultimate good desired is
better reached by free trade in ideas - that the best test of truth is
the power of the thought to get itself accepted in the competition of
the market, and that truth is the only ground upon which their wishes
safely can be carried out.166
The way it works, the exposure to the ideas of others allows one to
"consider, test, and develop their own conclusions."167 A free, open,
and dynamic market place of ideas is constantly shaping new ones.
This promotes both stability and change where recurring points may
crystallize and weak ones may develop. Of course, free speech is
more than the right to approve existing political beliefs and economic
arrangements as it includes, "[t]o paraphrase Justice Holmes, [the]
freedom for the thought that we hate, no less than for the thought
that agrees with us."168 In fact, free speech may "best serve its high
purpose when it induces a condition of unrest, creates dissatisfaction
with conditions as they are, or even stirs people to anger."169 It is in
this context that we should guard against any curtailment of the
people’s right to participate in the free trade of ideas.
Third, free speech involves self-expression that enhances human
dignity. This right is "a means of assuring individual self-
fulfillment,"170 among others. In Philippine Blooming Mills
Employees Organization v. Philippine Blooming Mills Co., Inc,171 this
court discussed as follows:
The rights of free expression, free assembly and petition, are not only
civil rights but also political rights essential to man's enjoyment of his
life, to his happiness and to his full and complete fulfillment.Thru
these freedoms the citizens can participate not merely in the periodic
establishment of the government through their suffrage but also in
the administration of public affairs as well as in the discipline of
abusive public officers. The citizen is accorded these rights so that he
can appeal to the appropriate governmental officers or agencies for
redress and protection as well as for the imposition of the lawful
sanctions on erring public officers and employees.172 (Emphasis
supplied)
Fourth, expression is a marker for group identity. For one,
"[v]oluntary associations perform [an] important democratic role [in
providing] forums for the development of civil skills, for deliberation,
and for the formation of identity and community spirit[,] [and] are
largely immune from [any] governmental interference."173 They also
"provide a buffer between individuals and the state - a free space for
the development of individual personality, distinct group identity,
and dissident ideas - and a potential source of opposition to the
state."174 Free speech must be protected as the vehicle to find those
who have similar and shared values and ideals, to join together and
forward common goals.
Fifth, the Bill of Rights, free speech included, is supposed to "protect
individuals and minorities against majoritarian abuses perpetrated
through [the] framework [of democratic governance]."175 Federalist
framers led by James Madison were concerned about two potentially
vulnerable groups: "the citizenry at large - majorities - who might be
tyrannized or plundered by despotic federal officials"176 and the
minorities who may be oppressed by "dominant factions of the
electorate [that] capture [the] government for their own selfish
ends[.]"177 According to Madison, "[i]t is of great importance in a
republic not only to guard the society against the oppression of its
rulers, but to guard one part of the society against the injustice of the
other part."178 We should strive to ensure that free speech is
protected especially in light of any potential oppression against those
who find themselves in the fringes on public issues.
Lastly, free speech must be protected under the safety valve
theory.179 This provides that "nonviolent manifestations of dissent
reduce the likelihood of violence[.]"180 "[A] dam about to burst . . .
resulting in the ‘banking up of a menacing flood of sullen anger
behind the walls of restriction’"181 has been used to describe the
effect of repressing nonviolent outlets.182 In order to avoid this
situation and prevent people from resorting to violence, there is a
need for peaceful methods in making passionate dissent. This
includes "free expression and political participation"183 in that they
can "vote for candidates who share their views, petition their
legislatures to [make or] change laws, . . . distribute literature alerting
other citizens of their concerns[,]"184 and conduct peaceful rallies
and other similar acts.185 Free speech must, thus, be protected as a
peaceful means of achieving one’s goal, considering the possibility
that repression of nonviolent dissent may spill over to violent means
just to drive a point.
II.B.5
Every citizen’s expression with political consequences enjoys a high
degree of protection. Respondents argue that the tarpaulinis election
propaganda, being petitioners’ way of endorsing candidates who
voted against the RH Law and rejecting those who voted for it.186 As
such, it is subject to regulation by COMELEC under its constitutional
mandate.187 Election propaganda is defined under Section 1(4) of
COMELEC Resolution No. 9615 as follows: SECTION 1. Definitions . . .
....
4. The term "political advertisement" or "election propaganda" refers
to any matter broadcasted, published, printed, displayed or
exhibited, in any medium, which contain the name, image, logo,
brand, insignia, color motif, initials, and other symbol or graphic
representation that is capable of being associated with a candidate
or party, and is intended to draw the attention of the public or a
segment thereof to promote or oppose, directly or indirectly, the
election of the said candidate or candidates to a public office. In
broadcast media, political advertisements may take the form of
spots, appearances on TV shows and radio programs, live or taped
announcements, teasers, and other forms of advertising messages or
announcements used by commercial advertisers. Political advertising
includes matters, not falling within the scope of personal opinion,
that appear on any Internet website, including, but not limited to,
social networks, blogging sites, and micro-blogging sites, in return for
consideration, or otherwise capable of pecuniary estimation.
On the other hand, petitioners invoke their "constitutional right to
communicate their opinions, views and beliefs about issues and
candidates."188 They argue that the tarpaulin was their statement of
approval and appreciation of the named public officials’ act of voting
against the RH Law, and their criticism toward those who voted in its
favor.189 It was "part of their advocacy campaign against the RH
Law,"190 which was not paid for by any candidate or political
party.191 Thus, "the questioned orders which . . . effectively
restrain[ed] and curtail[ed] [their] freedom of expression should be
declared unconstitutional and void."192
This court has held free speech and other intellectual freedoms as
"highly ranked in our scheme of constitutional values."193 These
rights enjoy precedence and primacy.194 In Philippine Blooming
Mills, this court discussed the preferred position occupied by
freedom of expression:
Property and property rights can belost thru prescription; but human
rights are imprescriptible. If human rights are extinguished by the
passage of time, then the Bill of Rights is a useless attempt to limit
the power of government and ceases to be an efficacious shield
against the tyranny of officials, of majorities, ofthe influential and
powerful, and of oligarchs - political, economic or otherwise.
In the hierarchy of civil liberties, the rights of free expression and of
assembly occupy a preferred position as they are essential to the
preservation and vitality of our civil and political institutions; and
such priority "gives these liberties the sanctity and the sanction not
permitting dubious intrusions."195 (Citations omitted)
This primordial right calls for utmost respect, more so "when what
may be curtailed is the dissemination of information to make more
meaningful the equally vital right of suffrage."196 A similar idea
appeared in our jurisprudence as early as 1969, which was Justice
Barredo’s concurring and dissenting opinion in Gonzales v.
COMELEC:197
I like to reiterate over and over, for it seems this is the fundamental
point others miss, that genuine democracy thrives only where the
power and right of the people toelect the men to whom they would
entrust the privilege to run the affairs of the state exist. In the
language of the declaration of principles of our Constitution, "The
Philippines is a republican state. Sovereignty resides in the people
and all government authority emanates from them" (Section 1,
Article II). Translating this declaration into actuality, the Philippines is
a republic because and solely because the people in it can be
governed only by officials whom they themselves have placed in
office by their votes. And in it is on this cornerstone that I hold it tobe
self-evident that when the freedoms of speech, press and peaceful
assembly and redress of grievances are being exercised in relation to
suffrage or asa means to enjoy the inalienable right of the qualified
citizen to vote, they are absolute and timeless. If our democracy and
republicanism are to be worthwhile, the conduct of public affairs by
our officials must be allowed to suffer incessant and unabating
scrutiny, favorable or unfavorable, everyday and at all times. Every
holder of power in our government must be ready to undergo
exposure any moment of the day or night, from January to December
every year, as it is only in this way that he can rightfully gain the
confidence of the people. I have no patience for those who would
regard public dissection of the establishment as an attribute to be
indulged by the people only at certain periods of time. I consider the
freedoms of speech, press and peaceful assembly and redress of
grievances, when exercised in the name of suffrage, as the very
means by which the right itself to vote can only be properly enjoyed.It
stands to reason therefore, that suffrage itself would be next to
useless if these liberties cannot be untrammelled [sic] whether as to
degree or time.198 (Emphasis supplied)
Not all speech are treated the same. In Chavez v. Gonzales, this court
discussed that some types of speech may be subject to regulation:
Some types of speech may be subjected to some regulation by the
State under its pervasive police power, in order that it may not be
injurious to the equal right of others or those of the community or
society. The difference in treatment is expected because the relevant
interests of one type of speech, e.g., political speech, may vary from
those of another, e.g., obscene speech. Distinctionshave therefore
been made in the treatment, analysis, and evaluation ofthe
permissible scope of restrictions on various categories of speech. We
have ruled, for example, that in our jurisdiction slander or libel, lewd
and obscene speech, as well as "fighting words" are not entitled to
constitutional protection and may be penalized.199 (Citations
omitted)
We distinguish between politicaland commercial speech. Political
speech refers to speech "both intended and received as a
contribution to public deliberation about some issue,"200
"foster[ing] informed and civicminded deliberation."201 On the
other hand, commercial speech has been defined as speech that does
"no more than propose a commercial transaction."202 The
expression resulting from the content of the tarpaulin is, however,
definitely political speech. In Justice Brion’s dissenting opinion, he
discussed that "[t]he content of the tarpaulin, as well as the timing of
its posting, makes it subject of the regulations in RA 9006 and
Comelec Resolution No. 9615."203 He adds that "[w]hile indeed the
RH issue, by itself,is not an electoralmatter, the slant that the
petitioners gave the issue converted the non-election issue into a live
election one hence, Team Buhay and Team Patay and the plea to
support one and oppose the other."204
While the tarpaulin may influence the success or failure of the named
candidates and political parties, this does not necessarily mean it is
election propaganda. The tarpaulin was not paid for or posted "in
return for consideration" by any candidate, political party, or party-
list group.
The second paragraph of Section 1(4) of COMELEC Resolution No.
9615, or the rules and regulations implementing Republic Act No.
9006 as an aid to interpret the law insofar as the facts of this case
requires, states:
4. The term "political advertisement" or "election propaganda" refers
to any matter broadcasted, published, printed, displayed or
exhibited, in any medium, which contain the name, image, logo,
brand, insignia, color motif, initials, and other symbol or graphic
representation that is capable of being associated with a candidate
or party, and is intended to draw the attention of the public or a
segment thereof to promote or oppose, directly or indirectly, the
election of the said candidate or candidates to a public office. In
broadcast media, political advertisements may take the form of
spots, appearances on TV shows and radio programs, live or taped
announcements, teasers, and other forms of advertising messages or
announcements used by commercial advertisers. Political advertising
includes matters, not falling within the scope of personal opinion,
that appear on any Internet website, including, but not limited to,
social networks, blogging sites, and micro-blogging sites, in return for
consideration, or otherwise capable of pecuniary estimation.
(Emphasis supplied)
It is clear that this paragraph suggests that personal opinions are not
included, while sponsored messages are covered.
Thus, the last paragraph of Section 1(1) of COMELEC Resolution No.
9615 states:
SECTION 1. Definitions - As used in this Resolution:
1. The term "election campaign" or "partisan political activity" refers
to an act designed to promote the election or defeat of a particular
candidate or candidates to a public office, and shall include any of the
following:
....
Personal opinions, views, and preferences for candidates, contained
in blogs shall not be considered acts of election campaigning or
partisan politicalactivity unless expressed by government officials in
the Executive Department, the Legislative Department, the Judiciary,
the Constitutional Commissions, and members of the Civil Service.
In any event, this case does not refer to speech in cyberspace, and its
effects and parameters should be deemed narrowly tailored only in
relation to the facts and issues in this case. It also appears that such
wording in COMELEC Resolution No. 9615 does not similarly appear
in Republic Act No. 9006, the law it implements.
We should interpret in this manner because of the value of political
speech.
As early as 1918, in United States v. Bustos,205 this court recognized
the need for full discussion of public affairs. We acknowledged that
free speech includes the right to criticize the conduct of public men:
The interest of society and the maintenance of good government
demand a full discussion of public affairs. Complete liberty to
comment on the conduct of public men is a scalpel in the case of free
speech. The sharp incision of its probe relieves the abscesses of
official dom. Men in public life may suffer under a hostile and an
unjust accusation; the wound can be assuaged with the balm of a
clear conscience. A public officer must not be too thin-skinned with
reference to comment upon his official acts. Only thus can the
intelligence and dignity of the individual be exalted.206
Subsequent jurisprudence developed the right to petition the
government for redress of grievances, allowing for criticism, save for
some exceptions.207 In the 1951 case of Espuelas v. People,208 this
court noted every citizen’s privilege to criticize his or her
government, provided it is "specific and therefore constructive,
reasoned or tempered, and not a contemptuous condemnation of
the entire government set-up."209
The 1927 case of People v. Titular210 involved an alleged violation of
the Election Law provision "penaliz[ing] the anonymous criticism of a
candidate by means of posters or circulars."211 This court explained
that it is the poster’s anonymous character that is being
penalized.212 The ponente adds that he would "dislike very muchto
see this decision made the vehicle for the suppression of public
opinion."213
In 1983, Reyes v. Bagatsing214 discussed the importance of allowing
individuals to vent their views. According to this court, "[i]ts value
may lie in the fact that there may be something worth hearing from
the dissenter [and] [t]hat is to ensurea true ferment of ideas."215
Allowing citizens to air grievances and speak constructive criticisms
against their government contributes to every society’s goal for
development. It puts forward matters that may be changed for the
better and ideas that may be deliberated on to attain that purpose.
Necessarily, it also makes the government accountable for acts that
violate constitutionally protected rights.
In 1998, Osmeña v. COMELEC found Section 11(b) of Republic Act No.
6646, which prohibits mass media from selling print space and air
time for campaign except to the COMELEC, to be a democracy-
enhancing measure.216 This court mentioned how "discussion of
public issues and debate on the qualifications of candidates in an
election are essential to the proper functioning of the government
established by our Constitution."217
As pointed out by petitioners, "speech serves one of its greatest
public purposes in the context of elections when the free exercise
thereof informs the people what the issues are, and who are
supporting what issues."218 At the heart of democracy is every
advocate’s right to make known what the people need to know,219
while the meaningful exercise of one’s right of suffrage includes the
right of every voter to know what they need to know in order to make
their choice.
Thus, in Adiong v. COMELEC,220 this court discussed the importance
of debate on public issues, and the freedom of expression especially
in relation to information that ensures the meaningful exercise of the
right of suffrage:
We have adopted the principle that debate on public issues should
be uninhibited, robust, and wide open and that it may well include
vehement, caustic and sometimes unpleasantly sharp attacks on
government and public officials. Too many restrictions will deny to
people the robust, uninhibited, and wide open debate, the
generating of interest essential if our elections will truly be free, clean
and honest.
We have also ruled that the preferred freedom of expression calls all
the more for the utmost respect when what may be curtailed is the
dissemination of information to make more meaningful the equally
vital right of suffrage.221 (Emphasis supplied, citations omitted)
Speech with political consequences isat the core of the freedom of
expression and must be protected by this court.
Justice Brion pointed out that freedomof expression "is not the god
of rights to which all other rights and even government protection of
state interest must bow."222
The right to freedom of expression isindeed not absolute. Even some
forms of protected speech are still subjectto some restrictions. The
degree of restriction may depend on whether the regulation is
content-based or content-neutral.223 Content-based regulations can
either be based on the viewpoint of the speaker or the subject of the
expression.
II.B.6
Content-based regulation
COMELEC contends that the order for removal of the tarpaulin is a
content-neutral regulation. The order was made simply because
petitioners failed to comply with the maximum size limitation for
lawful election propaganda.224
On the other hand, petitioners argue that the present size regulation
is content-based as it applies only to political speech and not to other
forms of speech such as commercial speech.225 "[A]ssuming
arguendo that the size restriction sought to be applied . . . is a mere
time, place, and manner regulation, it’s still unconstitutional for lack
of a clear and reasonable nexus with a constitutionally sanctioned
objective."226
The regulation may reasonably be considered as either content-
neutral or content-based.227 Regardless, the disposition of this case
will be the same. Generally, compared with other forms of speech,
the proposed speech is content-based.
As pointed out by petitioners, the interpretation of COMELEC
contained in the questioned order applies only to posters and
tarpaulins that may affect the elections because they deliver opinions
that shape both their choices. It does not cover, for instance,
commercial speech.
Worse, COMELEC does not point to a definite view of what kind of
expression of non-candidates will be adjudged as "election
paraphernalia." There are no existing bright lines to categorize
speech as election-related and those that are not. This is especially
true when citizens will want to use their resources to be able to raise
public issues that should be tackled by the candidates as what has
happened in this case. COMELEC’s discretion to limit speech in this
case is fundamentally unbridled.
Size limitations during elections hit ata core part of expression. The
content of the tarpaulin is not easily divorced from the size of its
medium.
Content-based regulation bears a heavy presumption of invalidity,
and this court has used the clear and present danger rule as
measure.228 Thus, in Chavez v. Gonzales:
A content-based regulation, however, bears a heavy presumption of
invalidity and is measured against the clear and present danger rule.
The latter will pass constitutional muster only if justified by a
compelling reason, and the restrictions imposedare neither
overbroad nor vague.229 (Citations omitted)
Under this rule, "the evil consequences sought to be prevented must
be substantive, ‘extremely serious and the degree of imminence
extremely high.’"230 "Only when the challenged act has overcome
the clear and present danger rule will it pass constitutional muster,
with the government having the burden of overcoming the presumed
unconstitutionality."231
Even with the clear and present danger test, respondents failed to
justify the regulation. There is no compelling and substantial state
interest endangered by the posting of the tarpaulinas to justify
curtailment of the right of freedom of expression. There is no reason
for the state to minimize the right of non-candidate petitioners to
post the tarpaulin in their private property. The size of the tarpaulin
does not affect anyone else’s constitutional rights.
Content-based restraint or censorship refers to restrictions "based on
the subject matter of the utterance or speech."232 In contrast,
content-neutral regulation includes controls merely on the incidents
of the speech such as time, place, or manner of the speech.233
This court has attempted to define "content-neutral" restraints
starting with the 1948 case of Primicias v. Fugoso.234 The ordinance
in this case was construed to grant the Mayor discretion only to
determine the public places that may be used for the procession
ormeeting, but not the power to refuse the issuance of a permit for
such procession or meeting.235 This court explained that free speech
and peaceful assembly are "not absolute for it may be so regulated
that it shall not beinjurious to the equal enjoyment of others having
equal rights, nor injurious to the rights of the community or
society."236
The earlier case of Calalang v. Williams237 involved the National
Traffic Commission resolution that prohibited the passing of animal-
drawn vehicles along certain roads at specific hours.238 This court
similarly discussed police power in that the assailed rules carry
outthe legislative policy that "aims to promote safe transit upon and
avoid obstructions on national roads, in the interest and convenience
of the public."239
As early as 1907, United States v. Apurado240 recognized that "more
or less disorder will mark the public assembly of the people to protest
against grievances whether real or imaginary, because on such
occasions feeling is always wrought to a high pitch of excitement. . .
."241 It is with this backdrop that the state is justified in imposing
restrictions on incidental matters as time, place, and manner of the
speech.
In the landmark case of Reyes v. Bagatsing, this court summarized the
steps that permit applicants must follow which include informing the
licensing authority ahead of time as regards the date, public place,
and time of the assembly.242 This would afford the public official
time to inform applicants if there would be valid objections, provided
that the clear and present danger test is the standard used for his
decision and the applicants are given the opportunity to be
heard.243 This ruling was practically codified in Batas Pambansa No.
880, otherwise known as the Public Assembly Act of 1985.
Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a
valid content-neutral regulation. In the 2006 case of Bayan v.
Ermita,244 this court discussed how Batas Pambansa No. 880 does
not prohibit assemblies but simply regulates their time, place, and
manner.245 In 2010, this court found in Integrated Bar of the
Philippines v. Atienza246 that respondent Mayor Atienza committed
grave abuse of discretion when he modified the rally permit by
changing the venue from Mendiola Bridge to Plaza Miranda without
first affording petitioners the opportunity to be heard.247
We reiterate that the regulation involved at bar is content-based. The
tarpaulin content is not easily divorced from the size of its medium.
II.B.7
Justice Carpio and Justice Perlas-Bernabe suggest that the provisions
imposing a size limit for tarpaulins are content-neutral regulations as
these "restrict the mannerby which speech is relayed but not the
content of what is conveyed."248
If we apply the test for content-neutral regulation, the questioned
acts of COMELEC will not pass the three requirements for evaluating
such restraints on freedom of speech.249 "When the speech
restraints take the form of a content-neutral regulation, only a
substantial governmental interest is required for its validity,"250 and
it is subject only to the intermediate approach.251
This intermediate approach is based on the test that we have
prescribed in several cases.252 A content-neutral government
regulation is sufficiently justified:
[1] if it is within the constitutional power of the Government; [2] if it
furthers an important or substantial governmental interest; [3] if the
governmental interest is unrelated to the suppression of free
expression; and [4] if the incident restriction on alleged [freedom of
speech & expression] is no greater than is essential to the
furtherance of that interest.253
On the first requisite, it is not within the constitutional powers of the
COMELEC to regulate the tarpaulin. As discussed earlier, this is
protected speech by petitioners who are non-candidates. On the
second requirement, not only must the governmental interest be
important or substantial, it must also be compelling as to justify the
restrictions made.
Compelling governmental interest would include constitutionally
declared principles. We have held, for example, that "the welfare of
children and the State’s mandate to protect and care for them, as
parens patriae,254 constitute a substantial and compelling
government interest in regulating . . . utterances in TV
broadcast."255
Respondent invokes its constitutional mandate to ensure equal
opportunity for public information campaigns among candidates in
connection with the holding of a free, orderly, honest, peaceful, and
credible election.256
Justice Brion in his dissenting opinion discussed that "[s]ize limits to
posters are necessary to ensure equality of public information
campaigns among candidates, as allowing posters with different sizes
gives candidates and their supporters the incentive to post larger
posters[,] [and] [t]his places candidates with more money and/or
with deep-pocket supporters at an undue advantage against
candidates with more humble financial capabilities."257
First, Adiong v. COMELEC has held that this interest is "not as
important as the right of [a private citizen] to freely express his choice
and exercise his right of free speech."258 In any case, faced with both
rights to freedom of speech and equality, a prudent course would be
to "try to resolve the tension in a way that protects the right of
participation."259
Second, the pertinent election lawsrelated to private property only
require that the private property owner’s consent be obtained when
posting election propaganda in the property.260 This is consistent
with the fundamental right against deprivation of property without
due process of law.261 The present facts do not involve such posting
of election propaganda absent consent from the property owner.
Thus, this regulation does not apply in this case.
Respondents likewise cite the Constitution262 on their authority to
recommend effective measures to minimize election spending.
Specifically, Article IX-C, Section 2(7) provides:
Sec. 2. The Commission on Elections shall exercise the following
powers and functions:
....
(7) Recommend to the Congress effective measures to minimize
election spending, including limitation of places where propaganda
materials shall be posted, and to prevent and penalize all forms of
election frauds, offenses, malpractices, and nuisance candidates.
(Emphasis supplied) This does not qualify as a compelling and
substantial government interest to justify regulation of the preferred
right to freedom of expression.
The assailed issuances for the removal of the tarpaulin are based on
the two feet (2’) by three feet (3’) size limitation under Section 6(c)
of COMELEC Resolution No. 9615. This resolution implements the
Fair Election Act that provides for the same size limitation.263
This court held in Adiong v. COMELEC that "[c]ompared to the
paramount interest of the State in guaranteeing freedom of
expression, any financial considerations behind the regulation are of
marginal significance."264 In fact, speech with political
consequences, as in this case, should be encouraged and not
curtailed. As petitioners pointed out, the size limitation will not serve
the objective of minimizing election spending considering there is no
limit on the number of tarpaulins that may be posted.265
The third requisite is likewise lacking. We look not only at the
legislative intent or motive in imposing the restriction, but more so
at the effects of such restriction, if implemented. The restriction must
not be narrowly tailored to achieve the purpose. It must be
demonstrable. It must allow alternative avenues for the actor to
make speech.
In this case, the size regulation is not unrelated to the suppression of
speech. Limiting the maximum sizeof the tarpaulin would render
ineffective petitioners’ message and violate their right to exercise
freedom of expression.
The COMELEC’s act of requiring the removal of the tarpaulin has the
effect of dissuading expressions with political consequences. These
should be encouraged, more so when exercised to make more
meaningful the equally important right to suffrage.
The restriction in the present case does not pass even the lower test
of intermediate scrutiny for content-neutral regulations.
The action of the COMELEC in thiscase is a strong deterrent to further
speech by the electorate. Given the stature of petitioners and their
message, there are indicators that this will cause a "chilling effect" on
robust discussion during elections.
The form of expression is just as important as the message itself. In
the words of Marshall McLuhan, "the medium is the message."266
McLuhan’s colleague and mentor Harold Innis has earlier asserted
that "the materials on which words were written down have often
counted for more than the words themselves."267
III
Freedom of expression and equality
III.A
The possibility of abuse
Of course, candidates and political parties do solicit the help of
private individuals for the endorsement of their electoral campaigns.
On the one extreme, this can take illicit forms such as when
endorsement materials in the form of tarpaulins, posters, or media
advertisements are made ostensibly by "friends" but in reality are
really paid for by the candidate or political party. This skirts the
constitutional value that provides for equal opportunities for all
candidates.
However, as agreed by the parties during the oral arguments in this
case, this is not the situation that confronts us. In such cases, it will
simply be a matter for investigation and proof of fraud on the part of
the COMELEC.
The guarantee of freedom of expression to individuals without any
relationship to any political candidate should not be held hostage by
the possibility of abuse by those seeking to be elected. It is true that
there can be underhanded, covert, or illicit dealings so as to hide the
candidate’s real levels of expenditures. However, labelling all
expressions of private parties that tend to have an effect on the
debate in the elections as election paraphernalia would be too broad
a remedy that can stifle genuine speech like in this case. Instead, to
address this evil, better and more effective enforcement will be the
least restrictive means to the fundamental freedom.
On the other extreme, moved by the credentials and the message of
a candidate, others will spend their own resources in order to lend
support for the campaigns. This may be without agreement between
the speaker and the candidate or his or her political party. In lieu of
donating funds to the campaign, they will instead use their resources
directly in a way that the candidate or political party would have
doneso. This may effectively skirt the constitutional and statutory
limits of campaign spending.
Again, this is not the situation in this case.
The message of petitioners in thiscase will certainly not be what
candidates and political parties will carry in their election posters or
media ads. The message of petitioner, taken as a whole, is an
advocacy of a social issue that it deeply believes. Through rhetorical
devices, it communicates the desire of Diocese that the positions of
those who run for a political position on this social issue be
determinative of how the public will vote. It primarily advocates a
stand on a social issue; only secondarily — even almost incidentally
— will cause the election or non-election of a candidate.
The twin tarpaulins consist of satire of political parties. Satire is a
"literary form that employs such devices as sarcasm, irony and
ridicule to deride prevailing vices or follies,"268 and this may target
any individual or group in society, private and government alike. It
seeks to effectively communicate a greater purpose, often used for
"political and social criticism"269 "because it tears down facades,
deflates stuffed shirts, and unmasks hypocrisy. . . . Nothing is more
thoroughly democratic than to have the high-and-mighty lampooned
and spoofed."270 Northrop Frye, wellknown in this literary field,
claimed that satire had two defining features: "one is wit or humor
founded on fantasy or a sense of the grotesque and absurd, the other
is an object of attack."271 Thus, satire frequently uses exaggeration,
analogy, and other rhetorical devices.
The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a
list of dead individuals nor could the Archbishop of the Diocese of
Bacolod have intended it to mean that the entire plan of the
candidates in his list was to cause death intentionally. The tarpaulin
caricatures political parties and parodies the intention of those in the
list. Furthermore, the list of "Team Patay" is juxtaposed with the list
of "Team Buhay" that further emphasizes the theme of its author:
Reproductive health is an important marker for the church of
petitioners to endorse.
The messages in the tarpaulins are different from the usual messages
of candidates. Election paraphernalia from candidates and political
parties are more declarative and descriptive and contain no
sophisticated literary allusion to any social objective. Thus, they
usually simply exhort the public to vote for a person with a brief
description of the attributes of the candidate. For example "Vote for
[x], Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for [z], Iba
kami sa Makati."
This court’s construction of the guarantee of freedom of expression
has always been wary of censorship or subsequent punishment that
entails evaluation of the speaker’s viewpoint or the content of one’s
speech. This is especially true when the expression involved has
political consequences. In this case, it hopes to affect the type of
deliberation that happens during elections. A becoming humility on
the part of any human institution no matter how endowed with the
secular ability to decide legal controversies with finality entails that
we are not the keepers of all wisdom.
Humanity’s lack of omniscience, even acting collectively, provides
space for the weakest dissent. Tolerance has always been a
libertarian virtue whose version is embedded in our Billof Rights.
There are occasional heretics of yesterday that have become our
visionaries. Heterodoxies have always given us pause. The
unforgiving but insistent nuance that the majority surely and
comfortably disregards provides us with the checks upon reality that
may soon evolve into creative solutions to grave social problems. This
is the utilitarian version. It could also be that it is just part of human
necessity to evolve through being able to express or communicate.
However, the Constitution we interpret is not a theoretical
document. It contains other provisions which, taken together with
the guarantee of free expression, enhances each other’s value.
Among these are the provisions that acknowledge the idea of
equality. In shaping doctrine construing these constitutional values,
this court needs to exercise extraordinary prudence and produce
narrowly tailored guidance fit to the facts as given so as not to
unwittingly cause the undesired effect of diluting freedoms as
exercised in reality and, thus, render them meaningless.
III.B.
Speech and equality:
Some considerations We first establish that there are two paradigms
of free speech that separate at the point of giving priority to equality
vis-à-vis liberty.272
In an equality-based approach, "politically disadvantaged speech
prevails over regulation[,] but regulation promoting political equality
prevails over speech."273 This view allows the government leeway
to redistribute or equalize ‘speaking power,’ such as protecting, even
implicitly subsidizing, unpopular or dissenting voices often
systematically subdued within society’s ideological ladder.274 This
view acknowledges that there are dominant political actors who,
through authority, power, resources, identity, or status, have
capabilities that may drown out the messages of others. This is
especially true in a developing or emerging economy that is part of
the majoritarian world like ours.
The question of libertarian tolerance
This balance between equality and the ability to express so as to find
one’s authentic self or to participate in the self determination of
one’s communities is not new only to law. It has always been a
philosophical problematique.
In his seminal work, Repressive Tolerance, philosopher and social
theorist Herbert Marcuse recognized how institutionalized inequality
exists as a background limitation, rendering freedoms exercised
within such limitation as merely "protect[ing] the already established
machinery of discrimination."275 In his view, any improvement "in
the normal course of events" within an unequal society, without
subversion, only strengthens existing interests of those in power and
control.276
In other words, abstract guarantees of fundamental rights like
freedom of expression may become meaningless if not taken in a real
context. This tendency to tackle rights in the abstract compromises
liberties. In his words:
Liberty is self-determination, autonomy—this is almost a tautology,
but a tautology which results from a whole series of synthetic
judgments. It stipulates the ability to determine one’s own life: to be
able to determine what to do and what not to do, what to suffer and
what not. But the subject of this autonomy is never the contingent,
private individual as that which he actually is or happens to be; it is
rather the individual as a human being who is capable of being free
with the others. And the problem of making possible such a harmony
between every individual liberty and the other is not that of finding a
compromise between competitors, or between freedom and law,
between general and individual interest, common and private
welfare in an established society, but of creating the society in which
man is no longer enslaved by institutions which vitiate self-
determination from the beginning. In other words, freedom is still to
be created even for the freest of the existing societies.277 (Emphasis
in the original)
Marcuse suggests that the democratic argument — with all opinions
presented to and deliberated by the people — "implies a necessary
condition, namely, that the people must be capable of deliberating
and choosing on the basis of knowledge, that they must have access
to authentic information, and that, on this basis, their evaluation
must be the result of autonomous thought."278 He submits that
"[d]ifferent opinions and ‘philosophies’ can no longer compete
peacefully for adherence and persuasion on rational grounds: the
‘marketplace of ideas’ is organized and delimited by those who
determine the national and the individual interest."279 A slant
toward left manifests from his belief that "there is a ‘natural right’ of
resistance for oppressed and overpowered minorities to use
extralegal means if the legal ones have proved to be inadequate."280
Marcuse, thus, stands for an equality that breaks away and
transcends from established hierarchies, power structures, and
indoctrinations. The tolerance of libertarian society he refers to as
"repressive tolerance."
Legal scholars
The 20th century also bears witness to strong support from legal
scholars for "stringent protections of expressive liberty,"281
especially by political egalitarians. Considerations such as
"expressive, deliberative, and informational interests,"282 costs or
the price of expression, and background facts, when taken together,
produce bases for a system of stringent protections for expressive
liberties.283
Many legal scholars discuss the interest and value of expressive
liberties. Justice Brandeis proposed that "public discussion is a
political duty."284 Cass Sustein placed political speech on the upper
tier of his twotier model for freedom of expression, thus, warranting
stringent protection.285 He defined political speech as "both
intended and received as a contribution to public deliberation about
some issue."286
But this is usually related also tofair access to opportunities for such
liberties.287 Fair access to opportunity is suggested to mean
substantive equality and not mere formal equalitysince "favorable
conditions for realizing the expressive interest will include some
assurance of the resources required for expression and some
guarantee that efforts to express views on matters of common
concern will not be drowned out by the speech of betterendowed
citizens."288 Justice Brandeis’ solution is to "remedy the harms of
speech with more speech."289 This view moves away from playing
down the danger as merely exaggerated, toward "tak[ing] the costs
seriously and embrac[ing] expression as the preferred strategy for
addressing them."290 However, in some cases, the idea of more
speech may not be enough. Professor Laurence Tribe observed the
need for context and "the specification of substantive values before
[equality] has full meaning."291 Professor Catherine A. MacKinnon
adds that "equality continues to be viewed in a formal rather than a
substantive sense."292 Thus, more speech can only mean more
speech from the few who are dominant rather than those who are
not.
Our jurisprudence
This court has tackled these issues.
Osmeña v. COMELEC affirmed National Press Club v. COMELEC on the
validity of Section 11(b) ofthe Electoral Reforms Law of 1987.293 This
section "prohibits mass media from selling or giving free of charge
print space or air time for campaign or other political purposes,
except to the Commission on Elections."294 This court explained that
this provision only regulates the time and manner of advertising in
order to ensure media equality among candidates.295 This court
grounded this measure on constitutional provisions mandating
political equality:296 Article IX-C, Section 4
Section 4. The Commission may, during the election period, supervise
or regulate the enjoyment or utilization of all franchises or permits
for the operation of transportation and other public utilities, media
of communication or information, all grants, special privileges, or
concessions granted by the Government or any subdivision, agency,
or instrumentality thereof, including any government-owned or
controlled corporation or its subsidiary. Such supervision or
regulation shall aim to ensure equal opportunity, time, and space,
and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in
connection with the objective of holding free, orderly, honest,
peaceful, and credible elections. (Emphasis supplied)
Article XIII, Section 1
Section 1. The Congress shall give highest priorityto the enactment of
measures that protect and enhance the right of all the people to
human dignity, reducesocial, economic, and political inequalities, and
remove cultural inequities by equitably diffusing wealth and political
power for the common good.
To this end, the State shall regulate the acquisition, ownership, use,
and disposition of property and its increments. (Emphasis supplied)
Article II, Section 26
Section 26. The State shall guarantee equal access to opportunities
for public service, and prohibit political dynasties as may be defined
by law. (Emphasis supplied)
Thus, in these cases, we have acknowledged the Constitution’s
guarantee for more substantive expressive freedoms that take
equality of opportunities into consideration during elections.
The other view
However, there is also the other view. This is that considerations of
equality of opportunity or equality inthe ability of citizens as speakers
should not have a bearing in free speech doctrine. Under this view,
"members of the public are trusted to make their own individual
evaluations of speech, and government is forbidden to intervene for
paternalistic or redistributive reasons . . . [thus,] ideas are best left to
a freely competitive ideological market."297 This is consistent with
the libertarian suspicion on the use of viewpoint as well as content to
evaluate the constitutional validity or invalidity of speech.
The textual basis of this view is that the constitutional provision uses
negative rather than affirmative language. It uses ‘speech’ as its
subject and not ‘speakers’.298 Consequently, the Constitution
protects free speech per se, indifferent to the types, status, or
associations of its speakers.299 Pursuant to this, "government must
leave speakers and listeners in the private order to their own devices
in sorting out the relative influence of speech."300
Justice Romero’s dissenting opinion in Osmeña v. COMELEC
formulates this view that freedom of speech includes "not only the
right to express one’s views, but also other cognate rights relevant to
the free communication [of] ideas, not excluding the right to be
informed on matters of public concern."301 She adds:
And since so many imponderables may affect the outcome of
elections — qualifications of voters and candidates, education,
means of transportation, health, public discussion, private
animosities, the weather, the threshold of a voter’s resistance to
pressure — the utmost ventilation of opinion of men and issues,
through assembly, association and organizations, both by the
candidate and the voter, becomes a sine qua non for elections to
truly reflect the will of the electorate.302 (Emphasis supplied)
Justice Romero’s dissenting opinion cited an American case, if only to
emphasize free speech primacy such that"courts, as a rule are wary
to impose greater restrictions as to any attempt to curtail speeches
with political content,"303 thus:
the concept that the government may restrict the speech of some
elements in our society in order to enhance the relative voice of the
others is wholly foreign to the First Amendment which was designed
to "secure the widest possible dissemination of information from
diverse and antagonistic sources" and "to assure unfettered
interchange of ideas for the bringing about of political and social
changes desired by the people."304
This echoes Justice Oliver Wendell Holmes’ submission "that the
market place of ideas is still the best alternative to censorship."305
Parenthetically and just to provide the whole detail of the argument,
the majority of the US Supreme Court in the campaign expenditures
case of Buckley v. Valeo "condemned restrictions (even if content-
neutral) on expressive liberty imposed in the name of ‘enhanc[ing]
the relative voice of others’ and thereby ‘equaliz[ing] access to the
political arena."306 The majority did not use the equality-based
paradigm.
One flaw of campaign expenditurelimits is that "any limit placed on
the amount which a person can speak, which takes out of his
exclusive judgment the decision of when enough is enough, deprives
him of his free speech."307
Another flaw is how "[a]ny quantitative limitation on political
campaigning inherently constricts the sum of public information and
runs counter to our ‘profound national commitment that debate on
public issues should be uninhibited, robust, and wide-open.’"308
In fact, "[c]onstraining those who have funds or have been able to
raise funds does not ease the plight of those without funds in the first
place . . . [and] even if one’s main concern isslowing the increase in
political costs, it may be more effective torely on market forces
toachieve that result than on active legal intervention."309 According
to Herbert Alexander, "[t]o oppose limitations is not necessarily to
argue that the sky’s the limit [because in] any campaign there are
saturation levels and a point where spending no longer pays off in
votes per dollar."310
III. C.
When private speech amounts
to election paraphernalia
The scope of the guarantee of free expression takes into
consideration the constitutional respect for human potentiality and
the effect of speech. It valorizes the ability of human beings to
express and their necessity to relate. On the other hand, a complete
guarantee must also take into consideration the effects it will have in
a deliberative democracy. Skewed distribution of resources as well as
the cultural hegemony of the majority may have the effect of
drowning out the speech and the messages of those in the minority.
In a sense, social inequality does have its effect on the exercise and
effect of the guarantee of free speech. Those who have more will
have better access to media that reaches a wider audience than
those who have less. Those who espouse the more popular ideas will
have better reception than the subversive and the dissenters of
society.To be really heard and understood, the marginalized view
normally undergoes its own degree of struggle.
The traditional view has been to tolerate the viewpoint of the
speaker and the content of his or her expression. This view, thus,
restricts laws or regulation that allows public officials to make
judgments of the value of such viewpoint or message content. This
should still be the principal approach.
However, the requirements of the Constitution regarding equality in
opportunity must provide limits to some expression during electoral
campaigns.
Thus clearly, regulation of speech in the context of electoral
campaigns made by candidates or the members of their political
parties or their political parties may be regulated as to time, place,
and manner. This is the effect of our rulings in Osmeña v. COMELEC
and National Press Club v. COMELEC.
Regulation of speech in the context of electoral campaigns made by
persons who are not candidates or who do not speak as members of
a political party which are, taken as a whole, principally advocacies of
a social issue that the public must consider during elections is
unconstitutional. Such regulation is inconsistent with the guarantee
of according the fullest possible range of opinions coming from the
electorate including those that can catalyze candid, uninhibited, and
robust debate in the criteria for the choice of a candidate.
This does not mean that there cannot be a specie of speech by a
private citizen which will not amount toan election paraphernalia to
be validly regulated by law.
Regulation of election paraphernalia will still be constitutionally valid
if it reaches into speech of persons who are not candidates or who
do not speak as members of a political party if they are not
candidates, only if what is regulated is declarative speech that, taken
as a whole, has for its principal object the endorsement of a
candidate only. The regulation (a) should be provided by law, (b)
reasonable, (c) narrowly tailored to meet the objective of enhancing
the opportunity of all candidates to be heard and considering the
primacy of the guarantee of free expression, and (d) demonstrably
the least restrictive means to achieve that object. The regulation
must only be with respect to the time, place, and manner of the
rendition of the message. In no situation may the speech be
prohibited or censored onthe basis of its content. For this purpose, it
will notmatter whether the speech is made with or on private
property.
This is not the situation, however, in this case for two reasons. First,
as discussed, the principal message in the twin tarpaulins of
petitioners consists of a social advocacy.
Second, as pointed out in the concurring opinion of Justice Antonio
Carpio, the present law — Section 3.3 of Republic Act No. 9006 and
Section 6(c) of COMELEC Resolution No. 9615 — if applied to this
case, will not pass the test of reasonability. A fixed size for election
posters or tarpaulins without any relation to the distance from the
intended average audience will be arbitrary. At certain distances,
posters measuring 2 by 3 feet could no longer be read by the general
public and, hence, would render speech meaningless. It will amount
to the abridgement of speech with political consequences.
IV
Right to property
Other than the right to freedom of expression311 and the meaningful
exercise of the right to suffrage,312 the present case also involves
one’s right to property.313
Respondents argue that it is the right of the state to prevent the
circumvention of regulations relating to election propaganda by
applying such regulations to private individuals.314 Certainly, any
provision or regulation can be circumvented. But we are not
confronted with this possibility. Respondents agree that the tarpaulin
in question belongs to petitioners. Respondents have also agreed,
during the oral arguments, that petitioners were neither
commissioned nor paid by any candidate or political party to post the
material on their walls.
Even though the tarpaulin is readily seen by the public, the tarpaulin
remains the private property of petitioners. Their right to use their
property is likewise protected by the Constitution.
In Philippine Communications Satellite Corporation v. Alcuaz:315
Any regulation, therefore, which operates as an effective
confiscation of private property or constitutes an arbitrary or
unreasonable infringement of property rights is void, because it is
repugnant to the constitutional guaranties of due process and equal
protection of the laws.316 (Citation omitted)
This court in Adiong held that a restriction that regulates where
decals and stickers should be posted is "so broad that it encompasses
even the citizen’s private property."317 Consequently, it violates
Article III, Section 1 of the Constitution which provides thatno person
shall be deprived of his property without due process of law. This
court explained:
Property is more than the mere thing which a person owns, it
includes the right to acquire, use, and dispose of it; and the
Constitution, in the 14th Amendment, protects these essential
attributes.
Property is more than the mere thing which a person owns. It is
elementary that it includes the right to acquire, use, and dispose of
it. The Constitution protects these essential attributes of property.
Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct.
Rep. 383. Property consists of the free use, enjoyment, and disposal
of a person’s acquisitions without control or diminution save by the
law of the land. 1 Cooley’s Bl. Com. 127. (Buchanan v. Warley 245 US
60 [1917])318
This court ruled that the regulation in Adiong violates private
property rights:
The right to property may be subject to a greater degree of regulation
but when this right is joined by a "liberty" interest, the burden of
justification on the part of the Government must be exceptionally
convincing and irrefutable. The burden is not met in this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive that it
prohibits the posting or display of election propaganda in any place,
whether public or private, except inthe common poster areas
sanctioned by COMELEC. This means that a private person cannot
post his own crudely prepared personal poster on his own front
dooror on a post in his yard. While the COMELEC will certainly never
require the absurd, there are no limits to what overzealous and
partisan police officers, armed with a copy of the statute or
regulation, may do.319 Respondents ordered petitioners, who are
private citizens, to remove the tarpaulin from their own property.
The absurdity of the situation is in itself an indication of the
unconstitutionality of COMELEC’s interpretation of its powers.
Freedom of expression can be intimately related with the right to
property. There may be no expression when there is no place where
the expression may be made. COMELEC’s infringement upon
petitioners’ property rights as in the present case also reaches out to
infringement on their fundamental right to speech.
Respondents have not demonstrated thatthe present state interest
they seek to promote justifies the intrusion into petitioners’ property
rights. Election laws and regulations must be reasonable. It must also
acknowledge a private individual’s right to exercise property rights.
Otherwise, the due process clause will be violated.
COMELEC Resolution No. 9615 and the Fair Election Act intend to
prevent the posting of election propaganda in private property
without the consent of the owners of such private property.
COMELEC has incorrectly implemented these regulations. Consistent
with our ruling in Adiong, we find that the act of respondents in
seeking to restrain petitioners from posting the tarpaulin in their own
private property is an impermissible encroachments on the right to
property.
V
Tarpaulin and its message are not religious speech
We proceed to the last issues pertaining to whether the COMELEC in
issuing the questioned notice and letter violated the right of
petitioners to the free exercise of their religion.
At the outset, the Constitution mandates the separation of church
and state.320 This takes many forms. Article III, Section 5 of the
Constitution, for instance provides:
Section 5. No law shall be made respecting an establishment of
religion, or prohibiting the free exercise thereof. The free exercise
and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. Noreligious
test shall be required for the exercise of civil or political rights.
There are two aspects of this provision.321 The first is the none
stablishment clause.322 Second is the free exercise and enjoyment
of religious profession and worship.323
The second aspect is atissue in this case.
Clearly, not all acts done by those who are priests, bishops, ustadz,
imams, or any other religious make such act immune from any
secular regulation.324 The religious also have a secular existence.
They exist within a society that is regulated by law.
The Bishop of Bacolod caused the posting of the tarpaulin. But not all
acts of a bishop amounts to religious expression. This
notwithstanding petitioners’ claim that "the views and position of the
petitioners, the Bishop and the Diocese of Bacolod, on the RH Bill is
inextricably connected to its Catholic dogma, faith, and moral
teachings. . . ."325
The difficulty that often presents itself in these cases stems from the
reality that every act can be motivated by moral, ethical, and religious
considerations. In terms of their effect on the corporeal world, these
acts range from belief, to expressions of these faiths, to religious
ceremonies, and then to acts of a secular character that may, from
the point of view of others who do not share the same faith or may
not subscribe to any religion, may not have any religious bearing.
Definitely, the characterizations ofthe religious of their acts are not
conclusive on this court. Certainly, our powers of adjudication cannot
be blinded by bare claims that acts are religious in nature.
Petitioners erroneously relied on the case of Ebralinag v. The Division
Superintendent of Schools of Cebu326 in claiming that the court
"emphatically" held that the adherents ofa particular religion shall be
the ones to determine whether a particular matter shall be
considered ecclesiastical in nature.327 This court in
Ebralinagexempted Jehovah’s Witnesses from participating in the
flag ceremony "out of respect for their religious beliefs, [no matter
how] "bizarre" those beliefsmay seem to others."328 This court
found a balance between the assertion of a religious practice and the
compelling necessities of a secular command. It was an early attempt
at accommodation of religious beliefs.
In Estrada v. Escritor,329 this court adopted a policy of benevolent
neutrality:
With religion looked upon with benevolence and not hostility,
benevolent neutrality allows accommodation of religion under
certain circumstances. Accommodations are government policies
that take religion specifically intoaccount not to promote the
government’s favored form of religion, but to allow individuals and
groups to exercise their religion without hindrance. Their purpose or
effect therefore is to remove a burden on, or facilitate the exercise
of, a person’s or institution’s religion. As Justice Brennan explained,
the "government [may] take religion into account . . . to exempt,
when possible, from generally applicable governmental regulation
individuals whose religious beliefs and practices would otherwise
thereby be infringed, or to create without state involvement an
atmosphere in which voluntary religious exercise may flourish."330
This court also discussed the Lemon test in that case, such that a
regulation is constitutional when: (1) it has a secular legislative
purpose; (2) it neither advances nor inhibits religion; and (3) it does
not foster an excessive entanglement with religion.331
As aptly argued by COMELEC, however, the tarpaulin, on its face,
"does not convey any religious doctrine of the Catholic church."332
That the position of the Catholic church appears to coincide with the
message of the tarpaulin regarding the RH Law does not, by itself,
bring the expression within the ambit of religious speech. On the
contrary, the tarpaulin clearly refers to candidates classified under
"Team Patay" and "Team Buhay" according to their respective votes
on the RH Law.
The same may be said of petitioners’ reliance on papal encyclicals to
support their claim that the expression onthe tarpaulin is an
ecclesiastical matter. With all due respect to the Catholic faithful, the
church doctrines relied upon by petitioners are not binding upon this
court. The position of the Catholic religion in the Philippines as
regards the RH Law does not suffice to qualify the posting by one of
its members of a tarpaulin as religious speech solely on such basis.
The enumeration of candidates on the face of the tarpaulin precludes
any doubtas to its nature as speech with political consequences and
not religious speech.
Furthermore, the definition of an "ecclesiastical affair" in Austria v.
National Labor Relations Commission333 cited by petitioners finds no
application in the present case. The posting of the tarpaulin does not
fall within the category of matters that are beyond the jurisdiction of
civil courts as enumerated in the Austriacase such as "proceedings
for excommunication, ordinations of religious ministers,
administration of sacraments and other activities withattached
religious significance."334
A FINAL NOTE
We maintain sympathies for the COMELEC in attempting to do what
it thought was its duty in this case. However, it was misdirected.
COMELEC’s general role includes a mandate to ensure equal
opportunities and reduce spending among candidates and their
registered political parties. It is not to regulate or limit the speech of
the electorate as it strives to participate inthe electoral exercise.
The tarpaulin in question may be viewed as producing a caricature of
those who are running for public office.Their message may be
construed generalizations of very complex individuals and party-list
organizations.
They are classified into black and white: as belonging to "Team Patay"
or "Team Buhay."
But this caricature, though not agreeable to some, is still protected
speech.
That petitioners chose to categorize them as purveyors of death or of
life on the basis of a single issue — and a complex piece of legislation
at that — can easily be interpreted as anattempt to stereo type the
candidates and party-list organizations. Not all may agree to the way
their thoughts were expressed, as in fact there are other Catholic
dioceses that chose not to follow the example of petitioners.
Some may have thought that there should be more room to consider
being more broad-minded and non-judgmental. Some may have
expected that the authors would give more space to practice
forgiveness and humility.
But, the Bill of Rights enumerated in our Constitution is an
enumeration of our fundamental liberties. It is not a detailed code
that prescribes good conduct. It provides space for all to be guided
by their conscience, not only in the act that they do to others but also
in judgment of the acts of others.
Freedom for the thought we can disagree with can be wielded not
only by those in the minority. This can often be expressed by
dominant institutions, even religious ones. That they made their
point dramatically and in a large way does not necessarily mean that
their statements are true, or that they have basis, or that they have
been expressed in good taste.
Embedded in the tarpaulin, however, are opinions expressed by
petitioners. It is a specie of expression protected by our fundamental
law. It is an expression designed to invite attention, cause debate,
and hopefully, persuade. It may be motivated by the interpretation
of petitioners of their ecclesiastical duty, but their parishioner’s
actions will have very real secular consequences. Certainly,
provocative messages do matter for the elections.
What is involved in this case is the most sacred of speech forms:
expression by the electorate that tends to rouse the public to debate
contemporary issues. This is not speechby candidates or political
parties to entice votes. It is a portion of the electorate telling
candidates the conditions for their election. It is the substantive
content of the right to suffrage.
This. is a form of speech hopeful of a quality of democracy that we
should all deserve. It is protected as a fundamental and primordial
right by our Constitution. The expression in the medium chosen by
petitioners deserves our protection.
WHEREFORE, the instant petition is GRANTED. The temporary
restraining order previously issued is hereby made permanent. The
act of the COMELEC in issuing the assailed notice dated February 22,
2013 and letter dated February 27, 2013 is declared unconstitutional.
SO ORDERED.
G.R. No. 141407 September 9, 2002
LAPULAPU DEVELOPMENT AND HOUSING CORPORATION,
petitioner, vs. GROUP MANAGEMENT CORPORATION, respondent.
DECISION
PANGANIBAN, J.:
Having the same power and prerogatives, courts of coequal and
coordinate jurisdiction cannot interfere with each others orders and
judgments. The ultimate test to determine the existence of forum
shopping is the vexation caused the courts and the litigants by the
repeated invocation of substantially the same facts, issues and
reliefs, thereby unnecessarily clogging court dockets and creating the
possibility of conflicting rulings and decisions.
The Case
Before us is a Petition for Review on Certiorari under Rule 45, seeking
the annulment of the April 30, 1999 Decision and the December 29,
1999 Resolution of the Court of Appeals (CA).[1] The assailed
Decision disposed as follows:
WHEREFORE, the petition being partly meritorious, the Court hereby
resolves as follows:
1. To AFFIRM the Orders of May 28, 1998 and August 4, 1998, in Civil
Case No. 2203-L insofar as they set aside the order holding
respondent Register of Deeds guilty of indirect contempt of court and
to NULLIFY said orders insofar as they set aside the directives
contained in paragraphs (a), (b), and (c) of the order dated November
28, 1997;
2. To DECLARE without FORCE and EFFECT insofar as petitioner Group
Management Corporation is concerned, the decision in Civil Case No.
R-82-3429 as well as the orders and writs issued for its execution and
enforcement; and
3. To ENJOIN respondent Lapulapu Development and Housing
Corporation, along with its agents and representatives and/or
persons/public officials/employees acting in its interest, specifically
respondent Regional Trial Court of Manila, Branch 38, and
respondent Register of Deeds of Lapulapu City, from obstructing,
interfering with or in any manner delaying the
implementation/execution/enforcement by the Lapulapu City RTC of
its order and writ of execution in Civil Case No. 2203-L.
4. For lack of sufficient basis, the charge of contempt of court against
respondent Lapulapu Development and Housing Corporation and the
public respondents is hereby DISMISSED.[2]
The assailed Resolution denied petitioners Motion for Partial
Reconsideration.[3]
The Facts
The procedural and factual antecedents of this case are summarized
by the CA in this wise:
LLDHC, formerly known as the B. Sunga Corporation, was the
registered owner of seventy-eight (78) lots, with an aggregate area
of 423,117 square meters, located at Barrio Marigondon, Lapu-lapu
City.
On February 4, 1974, LLDHC entered into a Project and Loan
Agreement with GSIS, whereby the latter undertook to extend a loan
of P25 million to be used by LLDHC in developing, subdividing and
selling to GSIS members, its property at Marigondon, Lapu-lapu City.
To implement the Agreement, GSIS extended to LLDHC an ad interim
medium term loan of P2,500,000.00 of which P710,400.00 was
released. To secure payment of the loan, LLDHC executed a real
estate mortgage over its 78 lots at Marigondon, Lapulapu City in favor
of GSIS.
LLDHC having failed to develop the property and defaulted in the
payment of its loan, GSIS foreclosed the mortgage. And, being the
lone bidder in the public auction sale, GSIS acquired the mortgaged
lots. After the lapse of the redemption period, GSIS consolidated its
ownership over the mortgaged lots and the corresponding transfer
certificates of title were issued in its name.
On February 26, 1980, GSIS, as new owner, executed a Deed of
Conditional Sale covering its Marigondon lots in favor of GMC.
On April 23, 1980, LLDHC filed a complaint for Annulment of
Foreclosure with Writ of Mandatory Injunction against GSIS.
Originally docketed as Civil Case No. 131332 of the Regional Trial
Court of Manila, the complaint (re-docketed as Civil Case No. R-82-
3429) was assigned to Branch 38 thereof.
On November 3, 1989, GMC filed a complaint for Specific
Performance with Damages against GSIS, docketed as Civil Case No.
2203-L of the Regional Trial Court of Lapu-Lapu City. The complaint
seeks to compel GSIS to execute a Final Deed of Sale in favor of GMC
covering the Marigondon lots, the purchase price thereof having
been paid in full by GMC to GSIS.
Allowed to intervene in Civil Case No. 2203-L, LLDHC filed a Motion
to Dismiss the complaint for specific performance. Said motion
having been denied by the Lapu-Lapu City RTC, LLDHC filed its Answer
in Intervention and thereafter participated in the proceedings as
intervenor.
On February 24, 1992, after a full-blown trial, a decision was
rendered in Civil Case No. 2203-L, the dispositive portion of which
reads:
WHEREFORE, judgment is hereby rendered ordering defendant to:
1. Execute the final deed of absolute sale and deliver the seventy-
eight (78) certificates of title covering said seventy-eight (78) parcels
of land to the plaintiff:
2. Pay plaintiff actual damages, plus attorneys fees and expenses of
litigation, in the amount of P285,638.88 and P100,000.00 exemplary
damages;
3. dismissing in toto intervenors complaint-in-intervention for lack of
evidence of legal standing and legal interest in the suit, as well as
failure to substantiate any cause of action against either plaintiff or
defendant.
SO ORDERED.
LLDHC, as intervenor, and GSIS as defendant, filed their respective
Notices of Appeals on March 11, 1992 and March 20, 1992. However,
on December 6, 1993, their appeals were dismissed by the Lapu-Lapu
City RTC.
On May 10, 1994, a decision was rendered in Civil Case No. R-82-3429
of the Manila RTC, Branch 38, the decretal portion of which reads:
WHEREFORE, judgment is hereby rendered:
1. ANNULLING the foreclosure by the defendant GSIS of the mortgage
over the seventy-eight (78) parcels of land here involved:
2. CANCELLING the consolidated certificates of titles issued in the
name of GSIS and directing the Register of Deeds of Lapu-Lapu City
to issue new certificates of titles over those seventy-eight (78) parcels
of land in the name of the plaintiff, in exactly the same condition as
they were before the foreclosure;
3. ORDERING the plaintiff to pay the GSIS the amount of
P9,200,000.00 with interest thereon at the rate of twelve (12%)
percent per annum commencing from October 12, 1989 until fully
paid; and
4. ORDERING defendant GSIS to execute a properly registrable
release of discharge of mortgage over the parcels of land here
involved after full payment of such amount by the plaintiff.
All claims and counterclaims by the parties as against each other are
hereby dismissed.
No pronouncement as to costs.
SO ORDERED.
On July 27, 1994, LLDHC filed a Complaint with this Court, docketed
as CA-G.R. SP No. 34696, seeking the annulment of the decision in
Civil Case No. 2203-L.
In a decision dated December 29, 1994, this Court dismissed the
complaint for annulment of judgment, on the following ground:
In fine, there being no showing from the allegations of the petition
that the respondent court is without jurisdiction over the subject
matter and of the parties in Civil Case No. 2309 [2203-L], petitioner
has no cause of action for the annulment of judgment. The complaint
must allege ultimate facts for the annulment of the decision
(Avendana v. Bautista, 142 SCRA 39). We find none in this case.
On January 28, 1995, no appeal having been taken by LLHDC, the
decision of this Court in CA-G.R. SP No. 34696 became final and
executory, and entry of judgment was made on August 18, 1995.
On February 2, 1995, LLDHC filed a petition for certiorari with the
Supreme Court, docketed as G.R. No. 118633. Like the complaint in
CA-G.R. SP No. 34696, the petition also seeks the annulment of the
February 24, 1992 decision in Civil Case No. 2203-L.
In its Resolution, dated September 6, 1996, the Supreme Court
dismissed LLDHCs petition, in G.R. No. 118633, stating inter alia, thus:
In a last ditch attempt to annul the February 24, 1992 Decision of the
respondent court, this petition was brought before us on February 2,
1995.
Dismissal of this petition is inevitable.
The instant petition which is captioned, For: Certiorari With
Preliminary Injunction, is actually another Petition for Annulment of
Judgment of the February 24, 1992 Decision of the respondent
Regional Trial Court of Lapu-lapu City, Branch 27 in Civil Case No.
2203-L. A close perusal of this petition as well as the Petition for
Annulment of Judgment brought by the petitioner before the Court
of Appeals in CA-G.R. No. SP 34696 reveals that the instant petition
is a mere reproduction of the petition/complaint filed before the
appellate tribunal for annulment of judgment. Paragraphs two (2) to
eighteen (18) of this petition were copied verbatim from the Petition
for Annulment of Judgment earlier filed in the court a quo, except for
the designation of the parties thereto, i.e., plaintiff was changed to
petitioner, defendant to respondent. In fact, even the prayer in this
petition is the same prayer in the Petition for Annulment of Judgment
dismissed by the Court of Appeals, to wit:
1. That Restraining Order/Writ of Preliminary Injunction issue
commanding the Respondent to cease and desist from enforcing the
judgment of Respondent Judge Teodoro K. Risos in Civil Case No.
2203-L dated February 24, 1992 and all orders and processes
pertaining to his decision in the said case.
2. Annulling the decision of defendant Judge Teodoro K. Risos of RTC
of Cebu, Branch 27, in Civil Case No. 2203-L.
3. Granting Petitioner such other relief as law and justice may
warrant in this case.
Under Section 9(2) of Batas Pambansa Blg. 129, otherwise known as
The Judiciary Reorganization Act of 1980, it is the Court of Appeals
(then the Intermediate Appellate Court), and not this Court, which
has jurisdiction to annul judgments of Regional Trial Courts, viz:
SEC. 9. Jurisdiction -- The Intermediate Appellate Court shall exercise:
xxxxxxxxx
(2) Exclusive original jurisdiction over actions for annulment of
judgments of Regional Trial Courts; and
xxxxxxxxx
Thus, this Court apparently has no jurisdiction to entertain a petition
which is evidently another petition to annul the February 24, 1992
Decision of the respondent Branch 27, Regional Trial Court of Lapu-
lapu City, it appearing that jurisdiction thereto properly pertains to
the Court of Appeals. Such a petition was brought before the
appellate court, but due to petitioners failure to nullify Judge Risos
Decision in said forum, LLDHC, apparently at a loss as to what legal
remedy to take, brought the instant petition under the guise of a
petition for certiorari under Rule 65 seeking once again to annul the
judgment of Branch 27.
Instead of filing this petition for certiorari under Rule 65, which is
essentially another Petition to Annul Judgment, petitioner LLDHC
should have filed a timely Petition for Review under Rule 45 of the
Revised Rules of Court of the decision of the Court of Appeals, dated
December 29, 1994, dismissing the Petition for Annulment of
Judgment filed by the petitioner LLDHC before the court a quo. But,
this is all academic now. The appellate courts decision had become
final and executory on January 28, 1995.
Nevertheless, it is worthwhile to mention that this petition, which is
truly for annulment of judgment, cannot prosper on its merits. [I]t
has been settled that a judgment can be annulled only on two (2)
grounds: (a) that the judgment is void for want of jurisdiction or lack
of due process of law; or (b) that it has been obtained by fraud.
Neither of these grounds obtain in the case at bench. x x x.
It cannot likewise be successfully argued that there was lack of due
process in the proceedings before Branch 27 of the RTC of Lapulapu.
Petitioner had ample participation in Civil Case No. 2203-L as
intervenor, as it in fact filed a Motion to Dismiss said case on
December 7, 1989 which was, however, denied by respondent Judge.
Thereafter, a full-blown trial was held which culminated in the
subject decision sought to be annulled by the petitioner.
In the same manner, the February 24, 1992 decision of respondent
court cannot be assailed on the ground of fraud. In order for fraud to
serve as a basis for the annulment of judgment, it must be extrinsic
or collateral in character, otherwise there would be no end to
litigations. Extrinsic fraud refers to any fraudulent act of the
prevailing party which is committed outside of the trial of the case,
whereby the defeated party [petitioner herein] has been prevented
from exhibiting fully his side of the case, by fraud or deception
practiced on him by his opponent. This type of fraud is decidedly
absent in the case at bench. Petitioner has not pointed to any act of
the prevailing party (Group Management Corporation) preventing it
(petitioner) from fully ventilating its case as intervenor in Civil Case
No. 2203-L. If ever the petitioners complaint-in-intervention did not
prosper in said case, it was because the lower court after due hearing,
did not find the intervenors case meritorious, and not because
petitioner was unduly deprived of its day in court. Thus, having been
unable to prove that extrinsic fraud vitiated the orders in question,
there lies no cause of action for annulment of said orders.
LLDHC sought a reconsideration of the above resolution but its
motion was denied with finality by the Supreme Court on November
18, 1996.
Consequently, on November 28, 1996, the Lapu-Lapu City RTC,
through Presiding Judge Teodoro K. Risos, issued an order directing
the execution of the judgment in Civil Case No. 2203-L, pursuant to
which the corresponding writ of execution was issued on December
17, 1996.
LLDHC and GSIS filed their respective motions to stay execution,
dated December 12, 1996 and January 9, 1997, both of which were
denied by Judge Risos in his Order dated February 19, 1997.
On July 21, 1997, on motion of GMC, Judge Risos issued an Order, the
dispositive portion of which reads:
WHEREFORE, the defendant GSIS having refused to implement the
Order of this Court dated December 17, 1996 the Court in accordance
with Rule 39. Sec. 10-a of the 1997 Rules of Procedure, hereby directs
the Register of Deeds of Lapu-lapu City to cancel the Transfer
Certificate of Titles of the properties involved in this case and to issue
new ones in the name of the plaintiff and to deliver the same to the
latter within ten (10) days after this Order shall have become final.
SO ORDERED.
On August 1, 1997, respondent Judge Barias issued a writ of
execution in Civil Case No. R-82-3429. Parenthetically, the judgment
in said case was affirmed with modification by this Court in its
Decision of December 27, 1996, in CA-G.R. CV No. 49117.
On August 7, 1997, Sheriff-Incharge Regio B. Ruefa, RTC-Manila, sent
a letter to the Register of Deeds of Lapu-Lapu City, ordering him to
cancel the consolidated certificate of title issued in the name of GSIS
and to issue new certificates of title over subject lots in the name of
LLDHC.
On August 21, 1997, a writ of possession was issued commanding
Sheriff Ruefa to cause GSIS and all persons claiming rights under it to
vacate the lots in question and to place LLDHC in peaceful possession
thereof. The corresponding Sheriffs Notice to Vacate, addressed to
GSIS, was served on August 22, 1997.
On October 23, 1997, Judge Risos, acting on various incidents relative
to the execution of the judgments in Civil Case No. R-82-3429 and
Civil Case No. 2203-L, issued an Order reiterating the order and writ
of execution dated November 28, 1996, and December 21, 1996, as
well as the order dated July 21, 1997, directing the Register of Deeds
of Lapu-Lapu City to effect the transfer of the titles to subject lots in
favor of GMC, declaring any and all acts done by the Register of Deeds
of Lapu-Lapu City null and void starting with surreptitious issuance of
new titles in the name of LLDHC, and, in the interim, enjoining the
Register of Deeds of Lapu-Lapu City from recording and/or registering
any transfer, disposition, or transaction regarding said lots, which
may be executed by LLDHC and/or GSIS.
Judge Risos held in abeyance all contempt proceedings against the
Register of Deeds of Lapu-Lapu City to allow him to forge (sic) himself
of the contemptuous act charged by the plaintiff.
On November 13, 1997, respondent Judge Barias issued an order, the
dispositive portion of which, reads:
WHEREFORE, the Group Management Corporation (GMC) is hereby
given ten (10) days from notice hereof within which to remove all its
structures erected therein, equipment, machineries and other
materials from the plantiffs properties while Jeselito (Rene) Cenabre,
Gualberto Dao, Gines Lamparaga, all security guards of the 537
Security Agency assigned therein and persons associated with them
are hereby directed to vacate the premises in controversy also within
ten (10) days from notice hereof.
Failure to do so as directed, an Order of Demolition shall be issued to
be implemented by the Deputy Sheriff of this Court authorizing him
to break open any closure with the assistance of police or military
authorities if necessary.
Let this Order be served personally by the Deputy Sheriff of the
Regional Trial Court of Lapu-Lapu City and the latter to submit the
corresponding Sheriffs Return therefor.
SO ORDERED.
Acting on GMCs Omnibus Motion dated October 29, 1997, and the
Manifestation/Explanation, dated October 30, 1997, of respondent
Register of Deeds, Judge Risos issued an Order dated November 28,
1997, the decretal portion of which reads:
a) Intervenor Lapu-lapu Development and Housing Corporation
(LLDHC) is hereby ordered to show cause in writing within ten (10)
days from receipt hereof why it should not be declared in contempt
of this Court:
b) Let a writ of preliminary prohibitory injunction issue to restrain
immediately all persons acting on orders or by authority of intervenor
LLDHC from carrying out any and all acts in defiance of this Courts
final and executory judgment, orders and writ of execution aforesaid,
specifically acts such as, but not limited to, the demolition of
structures erected by plaintiff upon the properties subject matter of
this litigation and the removal of plaintiffs machinery, equipment and
supplies thereon, as well as the ouster therefrom of plaintiffs duly
authorized representatives, personnel and security guards;
c) Further, let a writ of preliminary mandatory injunction
immediately issue to direct the ouster of intervenor LLDHC; its
agents, representatives and all persons acting on order or by
authority of intervenor, as well as the demolition of structures
erected by intervenor upon the properties subject matter of this
litigation;
d) Finally, the Register of Deeds of Lapu-Lapu City is hereby declared
in contempt of this Court, and his immediate detention and
confinement at the City Jail of Lapu-lapu City is directed as long as he
persists in his interference, disobedience and obstruction of justice
by not complying with the directives of this Court dated October 23,
1997 specifically directing the Register of Deeds of Lapu-lapu City to
effect the transfer of the titles of the properties subject of this case
in favor of the plaintiffs, declaring any and all acts done by the
Register of Deeds of Lapu-lapu City NULL AND VOID star[t]ing with
the surreptitious issuance of the new certificates of title in the name
of Lapu-lapu Development and Housing Corporation, contrary to the
Decision of this Court dated February 24, 1992, its Order and Writ of
Execution as well as its Order dated July 21, 1997, and if respondent
Register of Deeds refuses to comply with the order of this Court
transferring the titles of the land in question to the plaintiff after ten
(10) days from receipt of this Order.
e) The Office of the City Sheriff is hereby directed to implement
compliance with paragraphs (b), (c) and (d) above, particularly the
detention and confinement of Atty. Dioscoro Y. Sanchez, Jr., Register
of Deeds, Lapu-lapu City, if he continues to refuse to transfer the
titles of the land in dispute after ten (10) days from receipt of this
order, authorizing him for these purposes to secure the assistance of
the Office of the Chief of Police of Lapu-lapu City, who is likewise
directed to provide a sufficient number of his men in the service to
fully and faithfully carry out these orders, including the detention and
confinement aforesaid, until further orders from this Court.
SO ORDERED.
Accordingly, on December 4, 1997, the corresponding writ of
preliminary prohibitory injunction was issued.
Meanwhile, LLDHC came to this Court on a petition for certiorari with
preliminary injunction (docketed as CA-G.R. SP No. 44052), praying
that respondents (GMC and Judge Risos) cease and desist from
proceeding with the execution of the decision in Civil Case No. 2203-
L dated February 24, 1992, on the theory that the decision of the RTC
of NCJR in Civil Case No. 31323 (renumbered R-82-3429) entitled
LLDHC, plaintiff, versus GSIS, defendant, for Annulment of
Foreclosure and Mandatory Injunction, is a supervening event which
makes it mandatory for Respondent Judge Risos to stop execution of
the judgment in Civil Case No. 2203-L entitled GMC, plaintiff, versus
GSIS, defendant, for Specific Performance. In denying due course to
said petition, this Court ratiocinated, thus:
The validity of the decision of the respondent judge in Civil Case No.
2303-L has thus been brought both before this Court and to the
Supreme Court by the petitioner. In both instances the respondent
judge has been upheld. The instant petition is petitioners latest
attempt to resist the implementation or execution of that decision
using as a shield a decision of a Regional Trial Court in the National
Capital Region. We are not prepared to allow it. The applicable rule
and jurisprudence are clear. The prevailing party is entitled as a
matter of right to a writ of execution, and the issuance thereof is a
ministerial duty compellable by mandamus. We do not believe that
there exists in this instance a supervening event which would justify
a deviation from this rule.
Meanwhile, in Civil Case No. 2203-L, respondent Register of Deeds
and intervenor LLDHC, through separate motions, sought a
reconsideration of Judge Risos orders dated November 28, 1997 and
December 22, 1997.
On May 27, 1998, respondent Judge Fernandez, who succeeded
Judge Risos as Presiding Judge of the Lapu-Lapu City RTC (Branch 27),
issued an Order the dispositive portion of which reads:
PREMISES CONSIDERED, the two instant motions of the Register of
Deeds of Lapu-Lapu City Atty. Sanchez, Jr. and the intervenor LLDHC
are hereby granted and the order of this Court dated November 28,
1997 is hereby set aside. Accordingly, the order dated December 22,
1997 is likewise recalled.
GMC sought a reconsideration of said order. Its motion for
reconsideration was, however, denied by respondent Judge
Fernandez in his Order of August 4, 1998.[4]
Ruling of the Court of Appeals
The CA affirmed the Orders of the Regional Trial Court (RTC) of
Lapulapu City in Civil Case No. 2203-L freeing the Register of Deeds
from indirect contempt of court. It also declared without force and
effect the Decision of the Regional Trial Court (RTC) of Manila in Civil
Case No. R-82-3429, as well as the Orders and Writs issued for the
execution and enforcement of that Decision. The CA enjoined
petitioner, its agents and representatives, the RTC of Manila and the
Register of Deeds of Lapulapu City from obstructing or interfering
with the implementation of the Order issued by the Lapu-lapu RTC in
Civil Case No. 2203-L.
Hence, this Petition.[5]
The Issues
In its Memorandum, petitioner urges the Court to resolve the
following questions:
1. Whether the final and fully implemented decision of the Manila
RTC could be declared and rendered ineffectual and nugatory by the
judgment of the Lapu-Lapu City RTC.
2. Whether the herein petitioner and/or the private respondent are
guilty of forum shopping.
3. Whether the refusal of Justices Verzola and Tuquero to voluntarily
inhibit or disqualify them from acting on the present case is proper
and justifiable.[6]
The Courts Ruling
The Petition has no merit.
First Issue:
Valid and Binding Decision
In its Memorandum, petitioner argues that the Decision of the Manila
RTC is superior to that of the Lapulapu RTC and must therefore
prevail. It alleges that the former was executed and fully
implemented as early as September 15, 1997, but that the latter is
yet to attain finality.
We do not agree. The records of the case clearly show that the
Lapulapu Decision has become final and executory and is thus valid
and binding upon the parties. Obviously, petitioner is again trying
another backdoor attempt to annul the final and executory Decision
of the Lapulapu RTC.
First, it was petitioner that filed on March 11, 1992 a Notice of Appeal
contesting the Lapulapu RTC Judgment in Civil Case No. 2203-L
rendered on February 24, 1992. The Notice was however rejected by
the said RTC for being frivolous and dilatory. Since petitioner had
done nothing thereafter, the Decision clearly became final and
executory.
However, upon receipt of the Manila RTC Decision, petitioner found
a new tool to evade the already final Lapulapu Decision by seeking
the annulment of the latter in a Petition with the CA. However, the
appellate court dismissed the action, because petitioner had been
unable to prove any of the grounds for annulment; namely lack of
jurisdiction or extrinsic fraud. Because no appeal had been taken by
petitioner, the ruling of the CA also became final and executory.
Second, the Supreme Court likewise recognized the finality of the CA
Decision when it threw out LLDHCs Petition for Certiorari in GR No.
118633. This Court ruled thus:
Instead of filing this petition for certiorari under Rule 65, which is
essentially another Petition to Annul Judgment, petitioner LLDHC
should have filed a timely Petition for Review under Rule 45 of the
Revised Rules of Court of the decision of the Court of Appeals, dated
December 29, 1994, dismissing the Petition for Annulment of
Judgment filed by the petitioner LLDHC before the court a quo. But
this is all academic now. The appellate courts decision had become
final and executory on January 28, 1995.[7] (Emphasis ours)
Jurisprudence mandates that when a decision becomes final and
executory, it becomes valid and binding upon the parties and their
successors in interest.[8] Such decision or order can no longer be
disturbed or reopened no matter how erroneous it may have
been.[9] Petitioners failure to file an appeal within the reglementary
period renders the judgment final and executory. The perfection of
an appeal in the manner and within the period prescribed by law is
mandatory. Failure to conform to the rules regarding appeal will
render the judgment final and executory and, hence,
unappealable.[10] Therefore, since the Lapulapu Decision has
become final and executory, its execution has become mandatory
and ministerial on the part of the judge.
The CA correctly ruled that the Lapulapu Judgment is binding upon
petitioner which, by its own motion, participated as an intervenor. In
fact, the latter filed an Answer in Intervention and thereafter actively
took part in the trial. Thus, having had an opportunity to be heard
and to seek a reconsideration of the action or ruling it complained of,
it cannot claim that it was denied due process of law. What the law
prohibits is the absolute absence of the opportunity to be heard.
Jurisprudence teaches that a party cannot feign denial of due process
if it has been afforded the opportunity to present its side.[11]
Petitioner likewise claims that Private Respondent GMC cannot
escape the adverse effects of the final and executory judgment of the
Manila RTC.
Again, we do not agree. A trial court has no power to stop an act that
has been authorized by another trial court of equal rank. As correctly
stated by the CA, the Decision rendered by the Manila RTC -- while
final and executory -- cannot bind herein private respondent, which
was not a party to the case before the said RTC. A personal judgment
is binding only upon the parties, their agents, representatives and
successors in interest.
Third, petitioner grievously errs in insisting that the judgment of the
Manila RTC nullified that of the Lapulapu RTC. As already adverted to
earlier, courts of coequal and coordinate jurisdiction may not
interfere with or pass upon each others orders or processes, since
they have the same power and jurisdiction.[12] Except in extreme
situations authorized by law, they are proscribed from doing so.[13]
Second Issue:
Forum Shopping
Petitioner contends that its Complaint for the annulment of the
mortgage foreclosure had been filed in the Manila RTC almost ten
years prior to GMCs Complaint for specific performance and damages
in the Lapulapu RTC. Thus, petitioner asserts that it cannot be liable
for forum shopping.
There is forum shopping whenever, as a result of an adverse opinion
in one forum, a party seeks a favorable opinion (other than by appeal
or certiorari) from another.[14] In Gatmaytan v. CA,[15] the
petitioner therein repeatedly availed itself of several judicial
remedies in different courts, simultaneously or successively. All those
remedies were substantially founded on the same transactions and
the same essential facts and circumstances; and all raised
substantially the same issues either pending in, or already resolved
adversely by, some other court. This Court held that therein
petitioner was trying to increase his chances of obtaining a favorable
decision by filing multiple suits in several courts. Hence, he was found
guilty of forum shopping.
In the present case, after the Lapulapu RTC had rendered its Decision
in favor of private respondent, petitioner filed several petitions
before this Court and the CA essentially seeking the annulment
thereof. True, petitioner had filed its Complaint in the Manila RTC
before private respondent filed its own suit in the Lapulapu RTC.
Records, however, show that private respondent learned of the
Manila case only when petitioner filed its Motion for Intervention in
the Lapulapu RTC. When GMC filed its own Motion to Intervene in
the Manila RTC, it was promptly rebuffed by the judge therein. On
the other hand, petitioner was able to present its side and to
participate fully in the proceedings before the Lapulapu RTC.
On July 27, 1994, almost two years after the dismissal of its appeal by
the Lapulapu RTC, petitioner filed in the CA a suit for the annulment
of that RTC judgment. On December 29, 1994, this suit was rejected
by the CA in a Decision which became final and executory on January
28, 1995, after no appeal was taken by petitioner. However, this
action did not stop petitioner. On February 2, 1995, it filed with this
Court another Petition deceptively cloaked as certiorari, but which in
reality sought the annulment of the Lapulapu Decision. This Court
dismissed the Petition on September 6, 1996. Petitioners Motion for
Reconsideration was denied with finality on November 18, 1996.
On November 28, 1996, Judge Risos of the Lapulapu RTC directed the
execution of the judgment in the case filed before it. The Motion to
Stay Execution filed by petitioner was denied on February 19, 1997.
Undaunted, it filed in this Court another Petition for Certiorari,
Prohibition and Mandamus. On September 21, 1998, we referred the
Petition to the CA for appropriate action. This new Petition again
essentially sought to annul the final and executory Decision rendered
by the Lapulapu RTC. Needless to say, the new suit was unsuccessful.
Still, this rejection did not stop petitioner. It brought before this Court
the present Petition for Review on Certiorari alleging the same facts
and circumstances and raising the same issues already decided by
this Court in GR No. 118633.[16]
First Philippine International Bank v. CA[17] stresses that what is truly
important to consider in determining whether forum shopping exists
is the vexation caused the courts and the parties-litigants by one who
asks different courts and/or administrative agencies to rule on the
same or related facts and causes and/or to grant the same or
substantially the same relief, in the process creating the possibility of
conflicting rulings and decisions.
Petitioner in the present case sued twice before the CA and thrice
before this Court, alleging substantially the same facts and
circumstances, raising essentially the same issues, and praying for
almost identical reliefs for the annulment of the Decision rendered
by the Lapulapu RTC. This insidious practice of repeatedly bringing
essentially the same action -- albeit disguised in various
nomenclatures -- before different courts at different times is forum
shopping no less. Because of petitioners actions, the execution of the
Lapulapu Decision has been needlessly delayed and several courts
vexed.
Third Issue:
Voluntary Inhibition
Petitioner claims that Justices Artemio G. Tuquero and Eubolo G.
Verzola gravely abused their discretion in refusing to voluntarily
inhibit or disqualify themselves from acting on the case at bar while
it was pending in the CA. They allegedly participated in the Judgment
rejecting its Petition for Certiorari, docketed as CA-GR SP No. 44052,
assailing the February 24, 1992 Execution Order issued by the
Lapulapu RTC.
Again, petitioner is clutching at straws. As a general rule, judges are
mandated to hear and decide cases, unless legally disqualified.[18]
However, they may voluntarily recuse themselves on the ground of
bias or prejudice,[19] expression of opinions that may show
partiality,[20] personal knowledge of the case,[21] or distant affinity
or former association with one of the parties or the latters
counsel.[22]
Justices Tuquero and Verzola acted within the bounds of duty when
they took part in the deliberation of the assailed Decision. By alleging
that the appellate magistrates should disqualify themselves because
of their past participation in CA-GR No. 44052, petitioner merely calls
attention to the repetitive nature of its pleadings and petitions. If
indeed the assailed Decision involves a totally different matter from
that disposed of in CA-GR No. 44052, then petitioner should have no
reason to worry about the impartiality of the said justices.
Without the written consent of all parties in interest, the law bars
justices from reviewing rulings or decisions rendered by them as
lower court judges.[23] This situation does not exist in the case at
bar.
WHEREFORE, the Petition is DISMISSED, and the assailed Decision
AFFIRMED. Treble costs against petitioner.
SO ORDERED.
G.R. No. 123050 January 20, 1999
SUICO INDUSTRIAL CORPORATION, SPS. ESMERALDO and
ELIZABETH SUICO, petitioners,
vs.
COURT OF APPEALS and DEVELOPMENT BANK INC., respondents.
MARTINEZ, J.
On January 19, 1987, petitioner Suico Industrial Corporation,
represented by Esmeraldo Suico, its president, secured a loan of
P2,500,000.00 payable in five (5) years, from respondent Private
Development Corporation of the Philippines (now PDCP Bank). As
security thereof, petitioner spouses mortgaged their two (2) real
estate properties situated at Mandaue City, Cebu covered by
Transfer Certificate of Title (TCT) Nos. 18324 and 23116. Sometime in
1991, petitioners obtained a second loan of P2,000,000.00 payable in
five, (5) years, and secured it with the same real properties, which
was granted respondent PDCP Bank.
For failure to pay the balance of the loan amounting to P3,900,000.00
as of 1993, respondent PDCP Bank caused the extrajudicial
foreclosure of the real estate mortgage. It was adjudged as the
highest bidder and a Certificate of Sale dated February 29, 1993 was
duly issued by the Sheriff of Mandaue in its favor. Petitioner failed to
redeem the said properties. After expiration of the one (l) year
redemption period, ownership over the properties were
consolidated and Nos. 34988 and 34987 were correspondingly issued
in the name of respondent PDCP Bank.
On November 16, 1994, respondent PDCP Bank filed with the
Regional Trial Court (RTC) of Mandaue City, Branch 28 an "Ex Parte
Motion for the Issuance of Writ of Possession" 1 which was granted
in an order dated December 8, 1994. 2 On December 15, 1994, a writ
of possession 3 was thereafter issued. However, the writ could not
be enforced because on December 9, 1994, petitioners filed a
"Complaint for Specific Performance, Injunction and Damages (with
Prayer for Restraining Order)" 4 before the RTC of Mandaue City,
Branch 56 seeking to enjoin respondent PDCP Bank from selling the
mortgaged properties and from taking physical possession over the
same during the pendency of the case.
On January 17, 1995, RTC Branch 56 issued an Orders 5 granting the
injunction sought for by petitioners (therein plaintiffs). It likewise
deferred resolution of the motion to dismiss petitioner' complaint
filed by respondent PDCP (therein defendant). Pertinent portions of
the order state that:
During the hearing of the plaintiffs' application for preliminary
injunction, plaintiffs presented Esmeraldo Suico who testified that
per arrangement with the certain Mae Siy and Fajardo, former
officers of the Defendant Bank, Plaintiff were supposed to
intentionally default in their payments and eventually consolidate
title in Defendant. In exchange, Defendant was supposed to allow a
repurchase of the property by plaintiffs or their recommendee at Five
Million Pesos (P5,000, 000.00).
Also presented was Raul Perez, Asset Clerk of the Assessor's Office of
Mandaue City, who testified that it was indeed herein Plaintiffs-
spouses who facilitated the transfer of the lots to Defendant whose
two representatives, even showed up to inquire if Plaintiffs had been
at Perez' office.
After careful consideration of the evidence so far submitted, this
Courts is convinced that there is indeed was an arrangement
between herein plaintiffs defendant as adverted to by Plaintiffs. This
conviction by the Court however will naturally be influenced by
whatever evidence the parties will present in the course of the trial
of this case.
The Court also realizes that a denial of the prayer for preliminary
injunction will result in irreparable damage to plaintiffs as a
consequence of the dislocation of their family and business and
possible loss of the properties under litigation should Defendant
decide to dispose of the same.
On the other hand, maintenance of status quo thru injunction will
hardly prejudice the Defendant bank whose name the properties
have been already titled. Furthermore, Defendant's interest will be
amply protected not only by the injunction bond which the Court will
issue but also because the passage of time will certainly enhance the
value of the properties.
Foregoing considered, the Court in the interest of justice and equity,
hereby GRANTS the injunction prayed for and accordingly orders the
Defendant, its representatives and assigns (enjoined) from disposing
of the properties covered by Transfer Certificate of Title Nos. 18324
and 23116 including improvements found therein or taking physical
possession of the same until further orders from this Court.
Bond hereby fixed at fifty thousand Pesos (P50,000.00).
Resolution of Defendant's Motion to Dismiss is deferred pending
further of evidence.
SO ORDERED.6
On January 18, 1995, RTC Branch 56 issued the Writ of Preliminary
Injunction, providing therein:
Whereas, on December 13, 1994, the Regional Trial Court, Branch 28
of Mandaue City, issued a Restraining Order in the above-entitled
case, enjoining the defendant PDCP Bank, its attorneys, agents or its
duly authorized officer or persons acting for and their behalf from
selling the mortgaged properties described in the complaint to
person not recommended by plaintiffs and from taking physical
possession over the same pending resolution of the prayer for
issuance of permanent injection.
Whereas, after hearing, this Court on January 17, 1995, issued an
Order expanding the restraining order dated December 13, 1994,
issued by RTC Branch 28 into an order for the issuance of a writ of
preliminary injunction, upon plaintiffs' posting a bond in the amount
of P50,000.00 conditioned for the payment of damages which the
defendant may suffer by reason of the issuance of the injunction.
Whereas, the bond as required was duly filed and approved by the
Court on January 18, 1995.
Whereas, you Private Development Corporation of the Philippines
now known as PDCP Bank, your representative and assigns are
hereby ordered not to dispose of the properties covered by Transfer
Certificate of Title Nos. 18324 and 23116 including improvements
found therein or take physical possession of the same until further
orders from this Court. 7
The Motion for Reconsideration (of the Order dated January 17,
1995) and the Motion to Dismiss (petitioners' complaint) both filed
by respondent PDCP bank were denied by RTC Branch 56 in an Order
dated June 21, 1995. 8
In its petition for certiorari and mandamus with prayer for a writ of
preliminary prohibitory injunction filed with the Court of Appeals on
June 26, 1995, respondent PDCP Bank prayed that the Order dated
January 17, 1995 granting the writ of preliminary injunction be set
aside, declared void and without any further force and effect. It
likewise prayed that the Sheriff of Mandaue City be ordered to
implement the writ of possession.
On August 28, 1995, respondent Court of Appeals rendered the
challenged decision 9 which ruled that RTC Branch 56 exceed its
jurisdiction when issued the writ of injunction against the
enforcement of the writ of possession granted by RTC Branch 28. It
ratiocinated in this wise:
In a petition for Certiorari, the court must confine itself to the issue
of whether or not the respondent court lacked of exceeded its
jurisdiction or committed grave abuse of discretion (San Pedro vs.
Court of Appeals, 235 SCRA 145). Here, the respondent Regional Trial
Court exceeded its jurisdiction when it issued the writ of injunction
complained of.
Well-settled is the rule that no courts has the power to interfere by
injunction with the judgments or orders of another court of
concurrent jurisdiction having the power to grant the relief sought by
injunction. . . . (Rafael Aquino, Sr., et al. v. Judge Julito B. Valenciano,
et al., A.M. No. MTJ-93-746, December 27, 1994, 239 SCRA 428;
Prudential Bank v. Gapultos, No. 41835, 19 January 1990, 181 SCRA
159; Darwin v. Tokonaga, G.R. No. 54177, 27 May 1991, 197 SCRA
442; Santos v. Bayhon, G.R. No. 88643, July 1991, 199 SCRA 525).
Here, the respondent court issued an injunction against the
enforcement of the writ of possession granted by the Regional Trial
Court, Branch 28. This cannot be done. It was the ministerial duty of
the trial court to grant such writ of possession.
Said the Supreme Court.
. . . With more reason, a purchaser can demand writ of possession
after the expiration of the redemption period. Thus, in F. David
Enterprises vs. Insular Bank of Asia & America, we held:
It is settled the buyer in a foreclosure sale becomes the absolute
owner of the property purchased if it is not redeemed during the
period of one year after the registration of the sale. As such, he is
entitled to the possession of the property and can demand it at any
time following the consolidation of ownership in his name and the
issuance to him of a new transfer certificate of the title. The buyer
can in fact demand possession of the land even during the
redemption period except that he has to post a bond in accordance
with Section 7 of Act 3135 as amended. No such bond is required
after the redemption period if the property is not redeemed.
Possession of the land then becomes an absolute right of the
purchaser as confirmed owner. Upon proper application and proof of
the title, the issuance of the writ of possession becomes a ministerial
duty of the court.' (Aurora Gonzales Vda. de Zaballero, et al. v. Hon.
Court of Appeals, et al G.R.No. 106958, February 9, 1994, 229 SCRA
810, F. David Enterprises vs. Insular Bank of Asia & America, 184 SCRA
294)
Much as We sympathize with the private respondents, it was clearly
petitioner's right to ask for the writ and to acquire possession of
subject properties and its improper for the respondent court to stay
implementation of the said writ.
As to the other reasons advanced by petitioner, as stressed by private
respondent, the same are questions of the fact better left for
respondent court's determination, at this stage of the litigation
below.
WHEREFORE, the petition is hereby GRANTED and the questioned
Order of January 17, 1995 is SET ASIDE. Cost against private
respondents.
SO ORDERED10
The motion for reconsideration having been in a Resolution dated
December 12, 1995 11 petitioners filed this instant certiorari petition
praying that the writ of preliminary injunction issued by RTC Branch
56 be upheld so that a trial on the merits of the case may ensure.
The focal point of inquiry is whether or not RTC Branch, 56 can enjoin
the enforcement of the writ of possession issued by RTC Branch 28.
Petitioners alleged in their complaint for specific performance,
injunction and damages filed before RTC Branch 56 that they had
agreed on a plan with respondent PDCP Bank to intentionally default
in their payments so that a foreclosure of mortgage can be effected
and title to the parcels of land would eventually be consolidated in
the name of respondent PDCP Bank. Thereafter, respondent PDCP
Bank was supposed to allow them to purchase the properties for
P5,000,000.00 thru the latter's recommended buyer. The
recommendees of petitioners rejected by respondent PDCP Bank.
The Selling price thereof was increased thereby preventing
petitioners from redeeming the properties. In this regard, petitioners
sought to enjoin the respondent PDCP Bank from selling the said
mortgaged properties to persons not recommended petitioners and
from taking physical possession thereof during the pendency of the
case.
Thus, petitioners now seek to uphold the propriety of the writ of
injunction issued by RTC Branch 56 enjoining the enforcement of the
writ of possession granted by RTC Branch 28.
The petition does not deserve merit.
First. RTC Branch 56 acted with grave abuse of discretion for having
issued the writ of injunction which prevented the implementation of
the writ of possession issued by RTC Branch 28. The issuance of the
writ of injunction was not proper in the absence of any legal right on
the part of petitioners to enjoin the enforcement of the writ of
possession in favor of respondent PDCP Bank.
We espoused in Arcega v. Court of Appeals 12 that:
For the issuance of the writ·of preliminary injunction to be proper, it
must be shown that the invasion of the right sought to be protected
is material and substantial, that the right of complainant is clear and
unmistakable and that there is an urgent and paramount necessity
for the writ to prevent serious damage. 13
In the absence of a clear legal right, the issuance of the injunctive writ
constitutes grave abuse of discretion. 14 Injunction is not designed
to protect contingent or future rights. Where the complainants right
or title is doubtful or disputed, injunction is not proper. 15 The
possibility of irreparable damage without proof of actual existing
right is no ground for an injunction. 16
When petitioners failed to pay the balance of the loan and thereafter
failed to redeem the properties, title to the property had already
been transferred to respondent PDCP Bank. Respondent PDCP Bank's
right to possess the property is clear and is based on its right of
ownership as a purchaser of the properties in the foreclosure sale to
whom title has been conveyed. l7 Under Section 7 of Act No. 3135
and Section 35 of Rule 39, the purchaser in a foreclosure sale is
entitled to possession of the property. 18 Respondent PDCP Bank has
a better right to possess the subject property because of its title over
the same. 19
Furthermore, petitioners undertook a procedural misstep when it
filed a suit for specific performance injunction and damages before
RTC Branch 56 instead of a petition to set aside the sale and
cancellation of the writ of possession as provided under Section 8 Act
3135:
Sec. 8. The debtor may, in the proceedings: in which possession was
requested, but not later than thirty days after the purchaser was
given possession, petitioner that the sale be set aside and the writ of
possession canceled, specifying the damages suffered by him,
because the mortgage was not violated or the sale was not made in
accordance with the provisions hereof, and the court shall take
cognizance of this petition in accordance with the summary
procedure provided for in section one hundred and twelve of Act
Number Four hundred and ninety six, and if it finds the complaint of
the debtor justified, it shall dispose in his favor of all or part of the
bond furnished by the person who obtained possession. Either of the
parties may appeal from the order of the judge in accordance with
section fourteen of Act Numbered Four hundred and ninety six; but
the order of the possession shall continue in effect during the
pendency of the
appeal. 20
Second. Indeed, it is the ministerial duty of the trial court to grant
such writ of possession.
In Sulit v. Court of Appeals, 21 the rule was applied in this manner:
No discretion appears to be left to the Court. Any question regarding
the regularity and validity of the sale, as well as the consequent
cancellation of the writ is to be determined in a subsequent
proceeding as outlined in Section 8, and it cannot be raised as a
justification for opposing the issuance of the writ of possession since,
under the Act, the proceeding for this is ex parte. 22 Such recourse is
available to a mortgage, who effects the extrajudicial foreclosure of
the mortgage even before the expiration of the period of redemption
provided by law and the Rules of Court. 23
This is stated also in A. G. Development Corporation v. Court of
Appeals: 24
A writ of possession is generally understood to be an order whereby
the sheriff is commanded to place a person in possession of a real or
personal property, 25 such as when a property is extrajudicially
foreclosed. 26 In this regard, the issuance of a writ of possession to a
purchaser in an extrajudicial foreclosure is merely a ministerial
function. 27 As such, the Court neither exercises its official discretion
nor judgment. 28
Third. The statute books are replete with jurisprudence to the effect
that trial courts have no power to interfere by injunction with the
orders or judgments issued by another court of concurrent or
coordinate jurisdiction. 29 In this regard, RTC Branch 56 therefore has
no power nor authority to nullify or enjoin the enforcement of the
writ of possession issued by RTC Branch 28.
WHEREFORE, the petition is DENIED. The Decision dated August 28,
1995 and the Resolution dated December 12, 1995 of respondent
Court of Appeals are hereby AFFIRMED. Costs against petitioners.
SO ORDERED.
G.R. No. 101041 November 13, 1991
HON. JUDGE ADRIANO R. VILLAMOR, petitioner,
vs.
HON. JUDGE BERNARDO LL. SALAS and GEORGE CARLOS,
respondents.
G.R. No. 101296 November 13, 1991
HON. JUDGE ADRIANO R. VILLAMOR, petitioner,
vs.
ANTONIO T. GUERRERO and HON. PEARY G. ALEONAR, Presiding
Judge of RTC, Branch 21, Region VII, Cebu City, respondents.
Ramon Ve Salazar for petitioner.
Antonio T. Guerrero for private respondent.
Henry R. Savellon for respondent.
GRIÑO-AQUINO, J.:
In 1977, Civil Case No. B-398 (Gloria Naval vs. George Carlos) for
recovery of ownership of a parcel of coconut land was filed and
subsequently raffled to the sala of the petitioner, Judge Adriano
Villamor. While the civil case was pending there, respondent Carlos
filed Criminal Cases Nos. N-989, N-990, N-991, N-992 and N-993 for
qualified theft against Gloria Naval and her helpers. The criminal
cases were also assigned to the sala of Judge Villamor.
Due to the pendency of Civil Case No. B-398, the criminal cases were
temporarily archived.
After trial in Civil Case No. B-398, a decision was rendered in favor of
Naval who was declared the lawful owner and possessor of the
disputed land. Carlos was ordered to vacate the land.
Thereafter, respondent Carlos, through counsel, moved to activate
the archived criminal cases. Having declared Naval the lawful owner
and possessor of the contested land in Civil Case No. B-398, Judge
Villamor dismissed the criminal cases against her and her co-accused.
Judge Villamor likewise granted execution pending appeal of his
decision in Civil Case No. B-398. This order was challenged by Carlos
in the Court of Appeals and in this Court, both without success.
Afterwards, Carlos filed an administrative case, A.M. No. RTJ-87-105,
against Judge Villamor, charging him with having issued illegal orders
and an unjust decision in Civil Case No. B-398. On November 21,
1988, this Court, in an En Banc resolution, summarily dismissed the
administrative case.
Dissatisfied with the outcome of the administrative case, respondent
Carlos filed a civil action for damages (Civil Case No. CEB-6478)
against Judge Villamor for knowingly rendering an unjust judgment
when he dismissed the five (5) criminal cases against Naval, et al.
The summons in Civil Case No. CEB-6478 was served upon Judge
Villamor on December 10, 1987. The next day (December 11, 1987),
instead of answering the complaint, Judge Villamor issued in Criminal
Cases Nos. N-0989 to 0993 an order of direct contempt against Carlos
and his lawyer. Attorney Antonio T. Guerrero, "for degrading the
respect and dignity of the court through the use of derogatory and
contemptous language before the court," and sentenced each of
them to suffer the penalty of imprisonment for five (5) days and to
pay a fine of P500.
Carlos immediately filed in this Court a petition for certiorari with a
prayer for the issuance of a writ of preliminary injunction against the
Judge (G.R. Nos. 82238-42). We promptly restrained Judge Villamor
from enforcing his Order of Contempt against Carlos and Attorney
Guerrero. On November 13, 1989, we annulled the contempt order.
(See pp. 26-34, Rollo of G.R. No. 101041.)
Back to Civil Case No. CEB-6478; Judge Villamor filed a motion to
dismiss the complaint for lack of jurisdiction. The trial court granted
the motion. The order of dismissal was affirmed by the Court of
Appeals (CA-G.R. CV No. 20657, June 26, 1990). Carlos appealed to
this Court which also denied the petition. (p. 125, Rollo of G.R. No.
101296.)
Unfazed by these setbacks, Carlos and his counsel, Attorney Antonio
Guerrero, filed separate complaints for damages against Judge
Villamor for knowingly rendering an unjust order of contempt.
Attorney Guerrero's complaint for damages (Civil Case No. CEB-8802)
was raffled to Branch 21, Regional Trial Court, Cebu City, presided
over by Judge Peary G. Aleonar. Carlos' complaint for damages was
docketed as Civil Case No. CEB-8823 and raffled to Branch 8, Regional
Trial Court of Cebu City presided over by Judge Bernardo LL. Salas.
On March 30, 1990, Judge Villamor filed a motion to dismiss Civil Case
No. CEB-8802 but it was denied by Judge Aleonar (p. 33, Rollo of G.R.
No. 101296).
Hence, this petition for certiorari and prohibition with restraining
order docketed as G.R. No. 101296.
On September 19, 1991, this Court issued a temporary restraining
order against Judge Aleonar to stop him from proceeding in Civil Case
No. CEB-8802 (pp. 45-46, Rollo of G.R. No. 101296).
On May 20, 1991, a Manifestation was filed by Judge Villamor praying
Judge Salas to dismiss Civil Case No. CEB-8823 but the motion was
denied by respondent Judge on July 2, 1991 (pp. 13-16, Rollo of G.R.
No. 101041).
Hence, this second petition for certiorari and prohibition with
restraining order (G.R. No. 101041).
On August 21, 1991, a Resolution was issued by this Court: 1)
temporarily restraining Judge Salas from further proceeding in Civil
Case No. CEB-8823; and 2) granting the petitioner's prayer that this
case be consolidated with G.R. No. 101296 (pp. 37-39, Rollo of G.R.
No. 101041).
The sole issue here is: whether or not Judges Aleonar and Salas may
take cognizance of the actions for damages against Judge Villamor for
allegedly having rendered an unjust order of direct contempt against
Carlos and Attorney Guerrero which this Court subsequently
annulled.
The answer is no.
As very aptly held by this Court in a Resolution it issued in connection
with a previous case filed by respondent Carlos against Judge
Villamor, over a similar action for "Damages and Attorney's Fees
Arising From Rendering an Unjust Judgment," in dismissing the five
(5) criminal cases for qualified theft which he (respondent Carlos) had
filed against Gloria P. Naval and others —
Indeed, no Regional Trial Court can pass upon and scrutinize, and
much less declare as unjust a judgment of another Regional Trial
Court and sentence the judge thereof liable for damages without
running afoul with the principle that only the higher appellate courts,
namely, the Court of Appeals and the Supreme Court, are vested with
authority to review and correct errors of the trial courts. (George D.
Carlos vs. CA, G.R. No. 95560, November 5, 1990; p. 125, Rollo of G.R
No. 101296.)
To allow respondent Judges Aleonar and Salas to proceed with the
trial of the actions for damages against the petitioner, a co-equal
judge of a co-equal court, would in effect permit a court to review
and interfere with the judgment of a co-equal court over which it has
no appellate jurisdiction or power of review. The various branches of
a Court of First Instance (now the Regional Trial Court) being co-
equal, may not interfere with each other's cases, judgments and
orders (Parco vs. Court of Appeals, 111 SCRA 262).
This Court has already ruled that only after the Appellate Court, in a
final judgment, has found that a trial judge's errors were committed
deliberately and in bad faith may a charge of knowingly rendering an
unjust decision be levelled against the latter (Garcia vs. Alconcel, 111
SCRA 178; Sta. Maria vs. Ubay, 87 SCRA 179; Gahol vs. Riodique, 64
SCRA 494).
Nowhere in this Court's decision annulling Judge Villamor's order of
direct contempt (G.R. Nos. 82238-42, November 13, 1989) can there
be found a declaration that the erroneous order was rendered
maliciously or with conscious and deliberate intent to commit an
injustice. In fact, a previous order of direct contempt issued by Judge
Villamor against Carlos' former counsel was sustained by this Court
(Jaynes C. Abarrientos, et al. vs. Judge Villamor, G.R. No. 82237, June
1, 1988).
At most, the order of direct contempt which we nullified may only be
considered an error of judgment for which Judge Villamor may not
be held criminally or civilly liable to the respondents.
A judge is not liable for an erroneous decision in the absence of
malice or wrongful conduct in rendering it (Barroso vs. Arche, 67
SCRA 161).
WHEREFORE, the consolidated petitions for certiorari are GRANTED,
Civil Cases Nos. CEB-8802 and CEB-8823, respectively, pending in the
salas of respondents Judge Peary G. Aleonar and Judge Bernardo LL.
Salas, are hereby dismissed. The temporary restraining orders issued
by this Court in these cases are hereby made permanent. No costs.
SO ORDERED.
G.R. No. 127371 April 25, 2002
PHILIPPINE SINTER CORPORATION and PHIVIDEC INDUSTRIAL
AUTHORITY, petitioners,
vs.
CAGAYAN ELECTRIC POWER and LIGHT CO., INC., respondent.
SANDOVAL-GUTIERREZ, J.:
Before this Court is a petition for review1 questioning the Decision2
of the Court of Appeals dated July 23, 1996 in CA-G.R. SP No. 36943,
"Cagayan Electric Power and Light Co., Inc. vs. Hon. Cesar M. Ybañez,
et al." which reversed the decision of the Regional Trial Court of
Cagayan de Oro City, Branch 17, in Civil Case No. 94-186 for
injunction.
The antecedents are:
On January 21, 1987, President Corazon C. Aquino and her Cabinet
approved a Cabinet Reform Policy for the power sector and issued a
Cabinet Memorandum, Item No. 2 of which provides:
"Continue direct connection for industries authorized under the BOI-
NPC Memorandum of Understanding of 12 January 1981, until such
time as the appropriate regulatory board determines that direct
connection of industry to NPC is no longer necessary in the franchise
area of the specific utility or cooperative. Determination shall be
based in the utility or cooperatives meeting the standards of financial
and technical capability with satisfactory guarantees of non-
prejudice to industry to be set in consultation with NPC and relevant
government agencies and reviewed periodically by the regulatory
board." (emphasis ours)
Pursuant to such Cabinet Memorandum, respondent Cagayan
Electric Power and Light, Co. (CEPALCO), grantee of a legislative
franchise3 to distribute electric power to the municipalities of
Villanueva, Jasaan and Tagoloan, and the city of Cagayan de Oro, all
of the province of Misamis Oriental, filed with the Energy Regulatory
Board (ERB) a petition entitled "In Re: Petition for Implementation of
Cabinet Policy Reforms in the Power Sector," docketed as ERB Case
No. 89-430. The petition sought the "discontinuation of all existing
direct supply of power by the National Power Corporation (NPC, now
NAPOCOR) within CEPALCO's franchise area."4
The ERB issued a notice of public hearing which was published in the
newspapers and posted in the affected areas. It likewise furnished
NAPOCOR and the Board of Investments (BOI) copies of the petition
and directed them to submit their comments.
After hearing, the ERB rendered a decision5 granting the petition, the
dispositive portion reads:
"WHEREFORE, in view of the foregoing premises, where the
petitioner has been proven to be capable of distributing power to its
industrial consumers and having passed the secondary
considerations with a passing mark of 85%, judgment is hereby
rendered granting relief prayed for. Accordingly, it is hereby declared
that all direct connection of industries to NPC within the franchise
area of CEPALCO is no longer necessary. Therefore, all existing NPC
(now NAPOCOR) direct supply of power to industrial consumers
within the franchise area of CEPALCO is hereby ordered to be
discontinued. x x x."6
NAPOCOR filed a motion for reconsideration, which the ERB denied.
Thereafter, NAPOCOR filed a petition for review with the Court of
Appeals. On October 9, 1992, the Court of Appeals dismissed the
petition, holding that the motion for reconsideration filed by
NAPOCOR with the ERB was out of time and therefore, the assailed
decision became final and executory and could no longer be subject
of a petition for review.1âwphi1.nêt
On a petition for review on certiorari,7 this Court affirmed the
Resolution of the Court of Appeals. Judgment was entered on
September 22, 1993, thus rendering final the decision of the ERB.8
To implement the decision in ERB Case No. 89-430, CEPALCO wrote
Philippine Sinter Corporation (PSC), petitioner, and advised the latter
of its desire "to have the power supply of PSC, directly taken from
NPC (NAPOCOR), disconnected, cut and transferred" to CEPALCO.9
PSC is an entity operating its business within the PHIVIDEC10
Industrial Estate (located in the Municipalities of Tagoloan and
Villanueva, Misamis Oriental, covered by CEPALCO's franchise). The
Estate is managed and operated by the PHIVIDEC Industrial Authority
(PIA).11 PSC refused CEPALCO's request, citing its contract for power
supply with NAPOCOR effective until July 26, 1996.
To restrain the execution of the ERB Decision, PSC and PIA filed a
complaint for injunction against CEPALCO with the Regional Trial
Court of Cagayan de Oro City, Branch 17, docketed as Civil Case No.
94-186. They alleged, inter alia, that there exists no legal basis to cut-
off PSC's power supply with NAPOCOR and substitute the latter with
CEPALCO since: (a) there is a subsisting contract between PSC and
NAPOCOR; (b) the ERB decision is not binding on PSC since it was not
impleaded as a party to the case; and (c) PSC is operating within the
PHIVIDEC Industrial Estate, a franchise area of PIA, not CEPALCO,
pursuant to Sec. 4 (1) of P.D. 538. Moreover, the execution of the ERB
decision would cause PSC a 2% increase in its electrical bills.
On April 11, 1994, the trial court rendered judgment12 in favor of PSC
and PIA, thus:
"WHEREFORE, premises considered, judgment is hereby rendered,
by preponderance of evidence, in favor of plaintiffs PSC and PIA and
against defendant CEPALCO and the petition for injunction should be,
as it is hereby, GRANTED. Accordingly, the defendant CEPALCO, its
agents and/or representative, and all those acting in its behalf, are
hereby ordered to refrain, cease and desist from cutting and
disconnecting and/or causing to be cut and disconnected the direct
electric power supply of the plaintiff PSC from the NPC and from
transferring the same to defendant CEPALCO, now and until July 26,
1996, when the contract between plaintiff PSC and the NPC for direct
power supply shall have expired. The counter-claim filed by
defendant CEPALCO is DISMISSED. No pronouncement as to costs.
SO ORDERED."13
CEPALCO filed a motion for reconsideration but was denied by the
trial court in its order dated December 13, 1994. Aggrieved, CEPALCO
appealed to the Court of Appeals. On July 23, 1996, the Court of
Appeals rendered its decision,14 the dispositive portion of which
reads:
"WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby
GRANTED. The assailed Decision dated April 11, 1994 and the Order
dated December 13, 1994 are SET ASIDE. The writ of preliminary
injunction earlier issued is DISSOLVED. No pronouncement as to
costs.
SO ORDERED."15
PSC and PIA filed a motion for reconsideration, which was denied in
a Resolution16 dated December 2, 1996. Hence the instant petition.
Petitioners submit the following issues for our resolution:
I. THE DECISION OF THE ERB IS CONTRARY TO THE CABINET POLICY
REFORM.
II. THE ERB DECISION INVOLVED ADJUDICATION OF RIGHTS TO THE
PREJUDICE OF PETITIONERS PIA AND PSC.
III. THE CABINET POLICY REFORM CANNOT AMEND THE CHARTER OF
PIA, PD 538, AS AMENDED.
IV. PETITIONERS PIA AND PSC WERE NOT NOTIFIED BY CEPALCO OF
ITS PETITION WITH THE ERB.
V. CIVIL CASE NO. 91-383 ENTITLED PHIVIDEC INDUSTRIAL
AUTHORITY VS. CEPALCO BEFORE BRANCH 17, REGIONAL TRIAL
COURT OF CAGAYAN DE ORO CITY REINFORCES THE ISSUE THAT THE
ERB DECISION MUST NECESSARILY BE ENJOINED FROM BEING
ENFORCED AGAINST PIA AND PSC.
VI. THE ERB DECISION IS NOT FINAL AND EXECUTORY.17
Petitioners contend that the ERB decision is contrary to the Cabinet
Policy Reform since PIA, one of the relevant government agencies
referred to in the Cabinet Memorandum, was not consulted, much
less notified by the ERB before it rendered its decision; that since PIA
is not a party in ERB Case No. 89-430, then the decision therein does
not bind it; that P.D. 538 (the charter of PIA) excluded the
municipalities of Tagoloan and Villanueva, Misamis Oriental, from
the franchise area of CEPALCO and transferred the same to PIA; and
that the ERB decision is not final and executory since the same is
subject to periodic review under the Cabinet Memorandum.
For its part, respondent CEPALCO maintains that the ERB decision
shows that it has met the requirements of the Cabinet Policy Reforms
on financial and technical capability of the utility or cooperative.
Anent petitioners' argument that the ERB decision does not bind
them for lack of personal notice, respondent explains that such
notice is not required since the proceedings in the ERB are in rem.
Besides, the only issue in the ERB case is whether or not CEPALCO has
met the standards mandated by the Cabinet Policy Reforms. Lastly,
respondent contends that what is subject to periodic review under
the Cabinet Memorandum is only the capability standards.
This is not the first time that a controversy arose involving the
franchise of CEPALCO vis-à-vis the authority of NAPOCOR to supply
power directly. In National Power Corporation vs. Court of
Appeals,18 this Court held that CEPALCO is the lawful provider of the
increased power supply to the Philippine Packing Corporation under
PD 4019 promulgated on November 7, 1972. The Court ruled that
distribution of electric power, whether an increase in existing voltage
or a new and separate electric service, shall be undertaken by
cooperatives, private utilities (such as CEPALCO), local governments
and other entities duly authorized subject to state regulation.
Subsequently, this Court, in Cagayan Electric Power and Light
Company, Inc. vs. National Power Corporation,20 sustained the
decision of the trial court ordering NAPOCOR to permanently desist
from continuing the direct supply, sale and delivery of electricity to
Ferrochrome Philippines, Inc., an industry operating its business
within the PHIVIDEC Industrial Estate, Tagoloan, Misamis Oriental,
because it violates the right of CEPALCO under its legislative
franchise. The Court stressed that the statutory authority (PD 395)
given to NAPOCOR with respect to sale of energy in bulk directly to
BOI-registered enterprises should always be subordinate to the
"total-electrification-of-the-entire-country-on-an-area-coverage-
basis policy" enunciated in P.D. No. 40.
In National Power Corporation vs. Court of Appeals,21 this Court
struck down as irregular the determination by the NAPOCOR on
whether or not it should supply power directly to the PIA or the
industries within the PHIVIDEC Industrial Estate-Misamis Oriental
(PIE-MO); and held that such authority pertains exclusively to the ERB
which was transferred to the Department of Energy (DOE) pursuant
to Republic Act No. 7638. Consequently, the Court remanded the
case to the DOE to determine whether it is CEPALCO or the
NAPOCOR, through the PIA, which should supply electric power to
the industries in the PIE-MO.
In the present case, the only issue for our determination is whether
or not injunction lies against the final and executory judgment of the
ERB.
We rule in the negative.
In Bachrach Corporation vs. Court of Appeals,22 this Court, through
Mr. Justice Jose C. Vitug, pertinently held:
"The rule indeed is, and has almost invariably been, that after a
judgment has gained finality, it becomes the ministerial duty of the
court to order its execution. No court, perforce, should interfere by
injunction or otherwise to restrain such execution. The rule,
however, concededly admits of exceptions; hence, when facts and
circumstances later transpire that would render execution
inequitable or unjust, the interested party may ask a competent court
to stay its execution or prevent its enforcement. So, also, a change in
the situation of the parties can warrant an injunctive relief."
Clearly, an injunction to stay a final and executory decision is
unavailing except only after a showing that facts and circumstances
exist which would render execution unjust or inequitable, or that a
change in the situation of the parties occurred. Here, no such
exception exists as shown by the facts earlier narrated. To disturb the
final and executory decision of the ERB in an injunction suit is to
brazenly disregard the rule on finality of judgments. In Camarines
Norte Electric Cooperative, Inc. vs. Torres,23 we underscored the
importance of this principle, thus:
"We have stated before, and reiterate it now, that administrative
decisions must end sometime, as fully as public policy demands that
finality be written on judicial controversies. Public interest requires
that proceedings already terminated should not be altered at every
step, for the rule of non quieta movere prescribes that what had
already been terminated should not be disturbed. A disregard of this
principle does not commend itself to sound public policy."
Corollarily, Section 10 of Executive Order No. 172 (the law creating
the ERB) provides that a review of its decisions or orders is lodged in
the Supreme Court.24 Settled is the rule that where the law provides
for an appeal from the decisions of administrative bodies to the
Supreme Court or the Court of Appeals, it means that such bodies are
co-equal with the Regional Trial Courts in terms of rank and stature,
and logically, beyond the control of the latter.25 Hence, the trial
court, being co-equal with the ERB, cannot interfere with the decision
of the latter. It bears stressing that this doctrine of non-interference
of trial courts with co-equal administrative bodies is intended to
ensure judicial stability in the administration of justice whereby the
judgment of a court of competent jurisdiction may not be opened,
modified or vacated by any court of concurrent jurisdiction.26
Granting that the ERB decision has not attained finality, or that the
ERB is not co-equal with the RTC, still injunction will not lie. As a rule,
to justify the injunctive relief prayed for, the movant must show: (1)
the existence of a right in esse or the existence of a right to be
protected; and (2) the act against which injunction is to be directed
is a violation of such right.27 In the case at bar, petitioners failed to
show any clear legal right which would be violated if the power
supply of PSC from the NAPOCOR is disconnected and transferred to
CEPALCO. If it were true that PSC has the exclusive right to operate
and maintain electric light within the municipalities of Tagoloan and
Villanueva pursuant to its charter (PD 538), then this Court would
have made such pronouncement in National Power Corporation vs.
Court of Appeals.28 Exclusivity of any public franchise has not been
favored by this Court such that in most, if not all, grants by the
government to private corporations, the interpretation of rights,
privileges or franchises is taken against the grantee.29 More
importantly, the Constitution prohibits monopoly of franchise.30
Another significant fact which militates against the claim of PIA is that
it previously allowed CEPALCO to distribute electric power to
industries operating within the PHIVIDEC Industrial Estate. This, to
our mind, sufficiently indicates PIA's recognition of CEPALCO's
franchise. Indeed, it is unimaginable that an implementation of a
long-standing government policy which had been sustained by this
Court31 can be stalled by an injunctive writ.
Likewise, petitioners' assertion that the ERB decision contradicts the
Cabinet Reform Policy is misplaced. On the contrary, we find the
decision to be in accord with the policy that direct connection with
the NAPOCOR is no longer necessary when a cooperative or utility,
such as CEPALCO, operating within a franchise proves to be capable
of distributing power to the industries therein. In this regard, it is apt
to reiterate the pronouncement of this Court in Cagayan Electric
Power and Light Company, Inc. vs. National Power Corporation:32
"It is likewise worthy of note that the defunct Power Development
Council, in implementing P.D. 395, promulgated on January 28, 1977
PDC Resolution No. 77-01-02, which in part reads:
'1) At any given service area, priority should be given to the
authorized cooperative or franchise holder in the right to supply the
power requirement of existing or prospective industrial enterprises
(whether BOI-registered or not) that are located or plan to locate
within the franchise area or coop service area as shall be determined
by the Board of Power or National Electrification Administration
whichever the case may be.'
The statutory authority given to respondent-appellant NPC in respect
of sales of energy in bulk direct to BOI registered enterprises should
always be subordinate to the "total-electrification-of-the-entire-
country-on-an-area-coverage-basis policy" enunciated in P.D. No. 40.
Thus, in NPC vs. CEPALCO, supra, this Court held:
'x x x The law on the matter is clear. PD 40 promulgated on 7
November 1973 expressly provides that the generation of electric
power shall be undertaken solely by the NPC. However, Section 3 of
the same decree also provides that the distribution of electric power
shall be undertaken by cooperatives, private utilities (such as
CEPALCO), local governments and other entities duly authorized,
subject to state regulation. x x x.'" (emphasis ours)
WHEREFORE, the petition is DENIED. The challenged Decision of the
Court of Appeals in CA-G.R. SP No. 36943 is hereby AFFIRMED.
SO ORDERED.